Walter Dellinger: How to Really End ‘Don’t Ask, Don’t Tell’
[Walter Dellinger, a lawyer, was the head of the Justice Department’s Office of Legal Counsel from 1993 to 1996.]
Many people seem to believe that [Don't Ask Don't Tell] would disappear if the Justice Department refused to appeal the court order. But there are...reasons that’s not the case.
...[T]he government has an obligation to comply with the nation’s laws, regardless of whether the president agrees with a particular statute. Doing otherwise would also set a precedent justifying similar nullifications by future administrations. The next president might, for example, decide not to enforce the recent health care reform law; all he would need would be a single ruling against the law by a single district court judge, which he would then refuse to appeal.
However, Mr. Obama may have another option: while appealing the lower court’s decision, he could have the Justice Department tell the appellate court that the executive branch believes the law is unconstitutional....
This approach is not unprecedented. In 1943, Congress passed a law prohibiting the payment of salaries to three particular government employees. Arguing that the law was unconstitutional, the employees sued and won in claims court. The solicitor general asked the Supreme Court to review the lower court’s decision, but he also told the justices that the administration agreed with the original ruling; the court ultimately struck down the law....
Read entire article at NYT
Many people seem to believe that [Don't Ask Don't Tell] would disappear if the Justice Department refused to appeal the court order. But there are...reasons that’s not the case.
...[T]he government has an obligation to comply with the nation’s laws, regardless of whether the president agrees with a particular statute. Doing otherwise would also set a precedent justifying similar nullifications by future administrations. The next president might, for example, decide not to enforce the recent health care reform law; all he would need would be a single ruling against the law by a single district court judge, which he would then refuse to appeal.
However, Mr. Obama may have another option: while appealing the lower court’s decision, he could have the Justice Department tell the appellate court that the executive branch believes the law is unconstitutional....
This approach is not unprecedented. In 1943, Congress passed a law prohibiting the payment of salaries to three particular government employees. Arguing that the law was unconstitutional, the employees sued and won in claims court. The solicitor general asked the Supreme Court to review the lower court’s decision, but he also told the justices that the administration agreed with the original ruling; the court ultimately struck down the law....