An Appeal to Reason

In good news for LGBT rights, a federal court recently enjoined enforcement of the military’s “don’t ask, don’t tell” policy. However, the government may appeal the decision; a recent New York Times article notes that “The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.”

My colleague Bryan Wildenthal, who teaches constitutional law, disagrees, writing that:

The article mistakenly claims, in discussing whether the Obama, Administration is “likely” to appeal the injunction, that: “The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.”

This statement erroneously confuses the issue of an appeal with the general practice (not a binding requirement) that the Justice Department usually defends federal laws against court challenges. The Department has already fulfilled any claimed duty it may have had to defend the law in this case. The government is under no duty whatsoever to appeal a judicial decision following a full and fair trial. The government makes strategic decisions all  the time about whether to appeal adverse rulings; it need not do so if it concludes a ruling was sound or an appeal would be a waste of time and resources. Both are true here.

If the Obama Administration chooses to needlessly prolong this litigation by fighting to reinstate the gay ban it claims to oppose, it should and will be held accountable for such an inexplicable waste of taxpayer resources and such an outrageous attack on the rights of gay Americans who only wish to serve our country.

This sounds right to me. The administration has already given this flawed policy all the defense that it deserves. By choosing not to appeal the lower court’s ruling, the administration would finally close an unfortunate chapter, and in the process send a message of support for the rights of all Americans, including the LGBT servicemen and women who risk their lives to serve their country.

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2 Responses

  1. TJ says:

    Do you mean that an appeal would be a “waste of time” because (1) the government is likely to lose the appeal, or (2) even a win would be contrary to the Administration’s idea of sound policy. If it is (1), then I disagree with your assessment of the likely outcome. If it is (2), then much caution would be wise. There are many federal laws that the Left would prefer that the government vigorously. Indeed, it is in the nature of the Left-Right divide that there are many more laws that the Left would prefer gets defended.

    So if the Executive has no obligation to defend a law that it sees as bad policy, or in its unilateral assessment deems unconstitutional (even if it thinks it can win in an appellate court), then suppose we have a Republican president in 2012. Challengers to the healthcare law will promptly file a lawsuit before an obliging district judge, who issues a nationwide injunction against the IRS collecting the penalty/tax, which the Republican administration will promptly fail to appeal (and I don’t see anyone else with standing to appeal the IRS’s inability to collect a penalty/tax). Once again, it is easy to get carried away focusing only on short-term interests and short-term political alignments.

  2. Glenn Cohen says:

    This is from my my time as an appellate lawyer at the Justice Department and just a dim memory (so I’ll defer to those who know better), but I thought that with acts of Congress there was a provision of federal law that if the DOJ refused to defend a law of Congress on appeal (maybe it was just in the S. Ct) an office within the Congress was empowered to mount that defense in DOJ’s place. I remember because during my time at DOJ this once came up, SG Clement refused to defend a particular law that had been struck down by a lower court (my hazy memory is that it had something to do with a content-based ban on advertising marijuana legalization, but that may just be a daydream). I would ask whether that law may be relevant here? If it is, and if the alternative is DOJ v. Congress defending the law, one could imagine the administration would rather maintain control of the litigation and it may actually better benefit the LGBTQ community for them to do so (and push their arguments) than for Congress to do so, especially if the make-up of Congress shifts to the right in the mid-terms.
    By the way, to tie this to the Prop 8 litigation, it was my (again hazy) understanding that the fact that California does not have a similar provision allowing the legislature to defend a law the AG refuses to that in part is the basis for the (contested) claim that the intervenors there should have standing to appeal. Once again I’ll defer to those who have actually studied these issue, I just thought I’d raise them.