In 1996 Clinton DOJ intentionally and deliberately FAILED to appeal a court decision ...

[Statistical]

The same thing many "legal experts" now claim is "impossible". As I outlined in another post there is nothing anywhere that compels the administration (or any officer of the court) to actively defend Unconstitutional laws. In 1996 a federal judge found the Dornan Amendment (a bill that prohibited soldiers who tested positive for HIV to remain in the service) Unconstitutional. The Clinton administration stated:

"Based on this advice from the Department of Defense and Joint Chiefs of Staff, and after consulting with the Department of Justice about the legal effect of that advice, the President concluded that the Dornan Amendment is unconstitutional. It arbitrarily discriminates and violates all notions of equal protection. Again, at the direction of the President, the Attorney General and the Department of Justice will decline to defend this provision in court. If the Congress chooses to defend this treatment of men and women in the military, it may do so. But this administration will not."

The administration chose NOT to appeal the decision further. Why? Because they found the decision to be compelling. That the law WAS Unconstitutional. That for the administration to further defend an Unconstitutional law is neither required, nor desired.

http://slog.thestranger.com/slog/archives/2010/10/14/the-obama-administrations-unappealing-political-cowardice

http://gay.americablog.com/2010/10/breaking-clinton-admin-refused-to.html

It is called courage. Nothing requires officers of the court to intentionally deny the Constitutional rights of their fellow citizens. Nothing. Any such claim is a pathetic attempt to hide the sad reality that Obama doesn't have the courage to do the right thing when it comes to DADT. The reality (to put it bluntly) is that Constitutional rights of homosexuals in an election year aren't worth it. The cost in political capital, popularity, and possibly votes is too high a price for this administration to willingly bear. It is cowardice in the face of adversity.

Those who perpetuate this false defense are just as cowardly. So anyone who feels the need to use the "Obama has to defend DADT" argument please explain how the Clinton administration was able to NOT defend/appeal the Dornan amendment? What makes Obama situation unique that he has to defend an unjust and Unconstitutional law?

The reality is nothing expect a lack of courage & conviction compels Obama to defend this unjust and Unconstitutional law.

[boston bean]

1. It is nothing but a pandering for bigoted votes. nt

There is no other conclusion, imho.

[Pab Sungenis]

21. Bigoted votes

he isn't going to get anyhow.

[ClarkUSA]

2. The WH has probably decided this is going to the Supreme Court if Congress won't repeal it.

[boston bean]

3. So will the Executive branch submit any briefs or fight for DADT at the Supreme Court level?

[ClarkUSA]

4. I don't have a crystal ball. Do you?

[boston bean]

7. Uh no, but what do you think? Do you have any opinion? As far as I know you have no shortage of

those?

And what will you think or "say" if it get to the SCOTUS and Obama's admin is fighting to keep DADT in place?

[ClarkUSA]

10. I already gave my opinions. Do not continue to harass me further.

I have no interest in answering your hypothetical questions. Got it?

[boston bean]

12. Harass you? OKaaaaaaayyyyy......

[Statistical]

5. So you at least accept that it is a CHOICE to defend DADT.

That the argument they are "Required" is bogus.

[ClarkUSA]

9. The Justice Department's orderly defenses of laws passed by Congress are constitutionally sound.

It's very rare that the Justice Department chooses not to defend federal law. There is no easy out. Walter Dellinger was on the Rachel Maddow Show making this case last week.

Walter Dellinger was Clinton's Acting Solicitor General. On the Rachel Maddow Show, he said that it's wrong to allow a single district judge to overturn a law passed by Congress. He gave an example of a future Republican president finding one district judge to rule against HCR and deciding not to appeal. He also said that President Obama has done alot to move the repeal of DADT forward by making the military get on board, which is a big deal. Dellinger said that ultimately, Congress really needs to repeal DADT but that President Obama is doing a "delicate" dance to set the stage for that to happen.

[boston bean]

11. It will be such a pleasure to see the Obama admin defend DADT in front of the SCOTUS.

You better not change your mind about that, if it happens.

Afterall, the world according to ClarkUSA is that the president must defend it.

[ClarkUSA]

15. Why?

<< You better not change your mind about that, if it happens.

Afterall, the world according to ClarkUSA is that the president must defend it. >>

Where did I say that? Quote me.

[boston bean]

17. Oh you don't believe he must defend DADT, I must have made a mistake.... nt

[ClarkUSA]

20. The Justice Department's orderly defenses of laws passed by Congress are constitutionally sound.

That's what I said. It happens to be a fact.

[boston bean]

22. oh, okay..... nt

[boston bean]

Actually that isn't what you said to me. but whatever... no biggie. nt

[ClarkUSA]

25. Really? Quote me, then. Prove your claim.

[boston bean]

26. you said you never mentioned obama. I didn't cut and paste your response verbatim, but you know you

edited it.

Whatever clarkusa. I don't really give a flying shit.

[ClarkUSA]

27. FACT: I never said "the president must defend it" as you claimed.

Nor did I edit a phrase containing those words.

[boston bean]

28. I don't need to prove a god damned thing, i said i must have made a mistake.

but if it means that much to you, you can prove it yourself.

:hi:

[boston bean]

23. dupe nt

[TheWraith]

6. Your citation does not mean what you think it means.

The relevant portion of the Dornan Amendment was held as unconstitutional under the Roe vs. Wade decision. In other words, prior precedent.

[ClarkUSA]

16. Thank you for the legal explanation, TheWraith.

"TheWraith (1000+ posts) Wed Oct-20-10 05:17 PM
Response to Original message

6. Your citation does not mean what you think it means.

The relevant portion of the Dornan Amendment was held as unconstitutional under the Roe vs. Wade decision. In other words, prior precedent."

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9355792&mesg_id=9355856

Bookmarked. I will disseminate this fact further.

[TheKentuckian]

8. The grasping at straws brigade will settle on an excuse or two rather than support equality.

[girl gone mad]

14. and..

speak of the devil...

[ProSense]

13. From the Americablog article:

Now, the Clinton administration did not believe that they had the authority to simply ignore the law and stop the HIV+ discharges themselves. They believed that the Supreme Court had to rule against the law before they could stop enforcing the law, as compared to defending it in court...

Not only were the circumstances completely different, Clinton is the one who signed the bill into law, and he attached a signing statement to it.

Over half of President Clinton’s constitutionally related signing statements were in the realm of foreign policy. In the 1996 National Defense Authorization Act, which followed his prior veto of a provision requiring discharge of HIV positive service members, the same provisio resurfaced. This time Clinton declared in the signing statement that the provision was unconstitutional and instructed his Attorney General not to defend the law if it were challenged.

However, President Clinton’s advisors made it clear that, if the law were not struck down, the President would have no choice but to enforce it. At a White House briefing on February 9, 1996,47 White House Counsel Jack Quinn explained that “in circumstances where you don't have the benefit of such a prior judicial holding, it's appropriate and necessary to enforce it. . .”

Assistant Attorney General Walter Dellinger added:

When the president's obligation to execute laws enacted by Congress is in tension with his responsibility to act in accordance to the Constitution, questions arise that really go to the very heart of the system, and the president can decline to comply
with the law, in our view, only where there is a judgment that the Supreme Court has resolved the issue.

Id. Congress subsequently repealed the provision before any court challenge was mounted.48

PDF

[pgodbold]

18. [phone]

[Bluenorthwest]

19. Thanks for putting it out there

I am sick of hearing that it is required when it is not.

[ClarkUSA]

24. His citation does not mean what you think it means.

"The relevant portion of the Dornan Amendment was held as unconstitutional under the Roe vs. Wade decision. In other words, prior precedent."
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9355792&mesg_id=9355856

What AmericaBlog said:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9355792&mesg_id=9355928

"I googled GLBT Legal Expert DADT Appeal and the first name that came up was Nan Hunter, first winner of the Dan Bradley Award, GLBT National Bar's highest honor posted that she thought that it has to be appealed for the same reason that DOMA challenges had to be appealed. Excerpts and links were posted here":
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9311547&mesg_id=9311547

"The problem is that there is circuit court precedent upholding DADT that is directly on point."
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9354576&mesg_id=9355952

"Given the fact that 5 previous district courts have found it constitutional is probably the reason that leading GLBT legal authorities want an appellate decision, preferably a Supreme Court decision that would then be final."
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9354576&mesg_id=9356004

[polmaven]

29. Thank you ClarkUSA

You have continually tried to put some perspective into this argument, but facts don't seem to matter to some folks. One of the most on point facts, to me, is that the next time a plaintiff, with standing, brings suit, if that judge should happen to find DADT to be Constitutional, then THAT will be the law of the land all over again.

The president is attempting to make this permanent, either by legislation or by a SCOTUS order. I guess it is just too easy to accuse the president than to really research why he is doing something.