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Former Acting Solicitor General and Duke Law professor Walter Dellinger, who served in the latter part of the Clinton administration, was on The Rachel Maddow Show on Thursday evening, giving his view (see below), on which he had been quoted earlier in the day in The Washington Post, of the Department of Justice’s options in addressing the “Don’t Ask, Don’t Tell” case, Log Cabin Republicans v. United States.
On Maddow’s show, Dellinger, in part, said:
I think the government really has no choice but to appeal the case because we don’t want a system where a single federal judge can invalidate an act of Congress and the President simply say, “Well, that’s it. We’re not going to seek to appeal that.”
Imagine, Rachel, three years down the road if someone is challenging the health care individual mandate … and there’s a Republican president in the White House … Suppose one district judge held it unconstitutional. You wouldn’t want a situation where the federal government could just say, “We’re not going to appeal.”
I wrote earlier this week about how Justice would be likely to seek a stay of the LCR ruling (which it did on Thursday) because allowing “a single federal trial judge to put an abrupt and total stop to a 17-year-old law relating to military policy” would be highly unusual.
Dellinger’s underlying message, moreover, is key to the point that I’ve made repeatedly over the past year and a half. In March, I wrote about “Equality and the Rule of Law” at Law Dork:
The fact is that there are very few times when DOJ chooses not to defend laws. This is because, in our system of government, the decision of whether or not something becomes a law is made by congressional passage and presidential signature or veto. The decision of whether something that has been passed into law is constitutional is left to the courts.
Supporters of equality should want this system of laws. Changes in the executive should not result in changes as to which laws are going to be enforced. As has been seen recently in Virginia, changes in the executive branch can result in the new executive wanting to roll back equality protections. If the Employment Non-Discrimination Act becomes law during Obama’s presidency, would LGBT groups want a system in which the next president – pressured by religious extremists – refused to enforce the law and, in fact, opposed its constitutionality in court?
Also in March — while discussing “The Role of Justice” — I briefly mention a situation in 1996 when the Clinton administration announced it would not defend a new law banning HIV-positive people from serving in the Armed Forces, noting that the determination was made when the new law “had not been subject at that point to review by any court.”
Here, however, DADT has been subject to review by many courts — including many appellate courts and even at least one of those, the First Circuit in the Cook case, after the Supreme Court’s decision in Lawrence v. Texas — that have reached decisions conflicting with the decision reached in September by Phillips.
Dellinger, however, goes on to suggest the administration “consider” what even he calls a “bold step” — that the government could appeal the ruling but “tell it that in the government’s view it’s unconstitutional … because it’s harmful to the military.”
In my earlier writings and questions to the White House, I have been pressing Obama and the administration to explain whether it views the Defense of Marriage Act and/or DADT as constitutional. As I wrote regarding DOMA:
It is a question of his views of our nation’s constitutional protections. Obama owes the LGBT community — and the nation — an answer about whether he believes DOMA unconstitutionally restricts the equal rights of same-sex couples.
I, too, would like — as Kerry Eleveld has sought this week — for Obama to state his view on the constitutionality of DADT. Dellinger’s “bold” suggestion that the Justice Department express that view as the government’s view in its appellate filing goes a step further. While his is a robust interpretation of the presidential prerogative to advance the president’s view of the constitutionality of a law in court, it does at least have the benefit of trying its best to maintain a commitment to the rule of law. As Dellinger said, even in his bold plan, he is “leaving the final decision with the court.”
As the LCR case moves closer to yet-to-be-set filing deadlines, the administration likely will be faced with considering Dellinger’s option, as well as countless others that will be offered to it in the coming weeks.
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Watch Dellinger talk with Maddow:
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