Equality and the Rule of Law

deptjusticeYet again, the Department of Justice filed a brief (pdf) in a federal trial court that defends a law in place since the 1990s that imposes a restriction on lesbian, gay and bisexual people but has previously been upheld by federal courts. On Monday, it was a brief in defense of the “Don’t Ask, Don’t Tell” policy; this past year, it was a brief defending the Defense of Marriage Act. That this was done by the Obama administration is seen by some in the LGBT community as an abhorrent act.

I disagree.

Now, regardless of views on this court filing, the Obama administration could – and should – blunt the impact of the filing by announcing that it plans to insert DADT repeal language in the Defense Department budget request that it will be submitting to Congress in the coming weeks.

The administration likewise should stop, as Rep. Barney Frank told me last week, “ducking” on the issue of whether it remains committed to the repeal of DADT this year. Talking about a civil-rights issue on which the majority of people in the country agree with you is not a bad idea, either morally or politically.

Finally, the administration should take action immediately to fix the disaster that is its public relations with the LGBT community. Whether this is a problem caused by a few staffers or a larger problem of administration skittishness on LGBT issues, the lack of an open dialogue – whether on court filings or legislative action or otherwise – related to those issues has led to a leadership vacuum that LGBT people were expecting to be filled by this president.

Those supporting LGBT equality, however, do the cause no favor by overstating what has happened here or by overstating the options available to Obama in this situation.

The Justice Department’s defense of laws is not the same thing as the Obama administration’s policy preferences for future legislative enactments. The brief filed on Monday restates those preferences, noting that “the President of the United States has called for the repeal of DADT, the Secretary of Defense initiated a working group to study how to implement any such Congressional repeal, and Congress is now holding hearings to consider the policy question of whether to retain the current law.”

That policy preference notwithstanding, the law remains. And the role of the Justice Department is to defend the laws of the United States. 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?

* * *

There’s a reason why, generally speaking, we expect the Justice Department to defend challenges to laws, and it makes sense that the exceptions to that are few and far between. Marty Lederman, a Harvard Law School graduate who worked in the Office of Legal Counsel in the Clinton White House and is back there now, has described (in terms of the Justice Department under the first President Bush) those three rare situations when the Department has chosen not to defend the law.

My review of these exceptions – detailed here — leads me to the conclusion that neither DOMA nor DADT fit any of these exceptions to the Department of Justice’s usual obligation to defend existing laws, both having been in effect for more than a decade and challenged in court previously.

Regardless of whether you agree after reading my views, however, the important point to be gathered from all this is not even that the Justice Department must defend both “Don’t Ask, Don’t Tell” and the Defense of Marriage Act in court, but that the arguments to be made for the DOJ choosing not to do so are complex, debatable and certainly no slam dunk.

Once the Justice Department made the determination that it would be defending the “Don’t Ask, Don’t Tell” policy in court, the overwhelming majority of the brief filed on Monday is completely unsurprising. The brief – which I discuss in more detail here – extensively recited the existing law in the Ninth Circuit Court of Appeals, where the case was brought; it quoted from the law itself; and it examined statements made to and conclusions reached by Congress in its consideration of the policy in 1993. That, for the most part, was the entirety of the brief.

That, though, brings me to my final point, which is that – despite all the legal garble that has preceded this – there are lawyers on the other side of the case who are arguing everything that advocates of repeal wish to see argued. That is the basis of our adversarial system of law: Both sides of an argument will be presented to a judge, who will then make his or her judgment on the law.

Additionally, if others believe that the lawyers for LCR are missing something or are doing an insufficient job, they can file an amicus curiae – “friend of the court” – brief urging the court to take into account their viewpoint before issuing that judgment.

Even then, of course, that decision can be appealed.

* * *

We are burdened, right now, with two laws – the Defense of Marriage Act and the “Don’t Ask, Don’t Tell” policy – that should be either repealed by Congress or overturned by the courts. On that point, most LGBT equality advocates agree.

Where the agreement has been lost – first with the DOMA brief this past year and now with the DADT brief filed on Monday – is on the proper role of the Justice Department in that process. I joined most people in criticizing some of the language and arguments raised by the Justice Department in its DOMA filing. Where I parted with many was on whether the Justice Department was right to defend the law at all.

This is a nuanced debate about the proper role of the Justice Department, and my opinions represent the best and most honest legal analysis I can give. It is an attempt to remain consistent in my view of the proper role of the Justice Department – regardless of whether subject to a Republican or Democratic administration and regardless of whether liberal or conservative views are in vogue.

That, also, I think, is the best path to take as LGBT equality advocates, this administration and our country move forward.

Popularity: 43% [?]

The Role of DOJ

[This is a side discussion relating to this post, "Equality and the Rule of Law."]

As Marty Lederman has written, “The first category [of laws that the Justice Department has declined to defend] is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable.” That is plainly not the case here, where even the most successful Supreme Court decision since the law’s passage – Lawrence v. Texas – did nothing to change the standard of review of the military ban.

Lederman then notes, “The second category involves statutes that in DOJ’s view infringe the constitutional powers of the President himself.” These cases have traditional involved congressional passage of laws that directly conflict with presidential authority. The most noted of these cases is INS v. Chadha, where the executive branch refused to defend a portion of the Immigration and Nationality Act that authorized either chamber of Congress, effectively, to veto the decision of the executive branch regarding deportation of certain people from the country.

Lederman introduces the final as such: “The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional.” This, unfortunately, seems a much more broad of a category than it is. Note that Lederman describes it as the “smallest” category of these rare exceptions. The case most often cited for this exception is a 1946 case where the president refused to defend a law that prohibited payment to “certain employees of the Government” who were “specified by name” in the law. The Supreme Court agreed that the law was unconstitutional and struck it down.

The only other situations that don’t neatly fit into those categories – but overlap with them – include one situation when, in a case regarding “minority preference policies adopted by the Federal Communications Commission,” the Justice Department determined that the policy was unconstitutional. Now-Chief Justice John Roberts, then acting solicitor general in DOJ, argued against the FCC policies, but – important to note here – the Bush administration allowed the FCC to argue in defense of the policies. In other words, the government – just not the Justice Department – was still acting to defend the policies.

A final scenario, pointed out to me today by former Clinton White House lesbian and gay liaison Richard Socarides, was in 1996, when the Defense Department Authorization bill contained an amendment that then-White House counsel Jack Quinn described as “require[ing] the Armed Forces to toss out of the military everyone who is HIV positive.” President Clinton determined that this provision, which had not been subject at that point to review by any court, was unconstitutional. He, accordingly, directed the Justice Department not to defend the law.

Popularity: 15% [?]

The DOJ Brief

[This is a side discussion relating to this post, "Equality and the Rule of Law."]

In that vein, the brief filed on Monday is far less over-the-top than the brief filed this past year by DOJ in defense of DOMA. This brief goes through the law and explains the argument of why, under that law, the DADT challenge brought by the Log Cabin Republicans should fail.

Despite suggestions made that the use of comments made in 1993 by then-Chairman of the Joint Chief of Staff Colin Powell is inappropriate because he said earlier this year that his view has since changed, the question before the court is whether Congress had a basis in 1993 to reach the conclusions it reached then. Clearly, Powell’s comments at the time were one of the things considered by Congress in passing the law, which is why advocates of repeal heralded his comments earlier this year. Although DOJ would have done well to note that Powell’s views had changed, that fact is irrelevant to the legal question at issue.

Regarding that legal issue, it also should be noted that LCR has brought a facial challenge to the law. A facial challenge to a law requires the court hearing the case to find that the law in question is unconstitutional in all circumstances. This is contrasted with an “as-applied” challenge to the law, which presents a court with deciding only if the challenged policy is unconstitutional as to that individual. Obviously, it is far more difficult to succeed in a facial challenge.

The only real issue that I have with the brief is its treatment of LCR’s witnesses. I would not have used the quotation marks around “experts,” as was done in the DOJ brief, although it does seem that the reason for doing so was because DOJ’s lawyers view the testimony given by LCR’s designated experts as irrelevant to the questions in dispute in the case. As such, DOJ would – it appears – challenge their designation as such if the matter were to go to trial. Regardless, the scare quotes, as they often are called, aren’t necessary.

Also, if – as was claimed this afternoon by the Palm Center’s Nathaniel Frank and Aaron Belkin – the Justice Department mischaracterized or misrepresented their views, then that is a legitimate criticism that should be addressed immediately.

Popularity: 10% [?]

Where’s Dawn Johnsen?



[My earlier post regarding the EEOC and NLRB appointments, and Obama's use of recess appointments more generally, can be found here.]

Finally, a brief thought on the “where’s Dawn Johnsen” question.

No one knows today. Certainly many will have views and insights into the reasons why President Obama’s nominee for the DOJ’s Office of Legal Counsel was not among the 15 appointments.

I’d like to add one to the mix.

Johnsen, an eminent and brilliant legal scholar whose appointment I strongly support, is a DOJ nominee, and it’s quite possible that Attorney General Eric Holder — or Obama himself — does not want Johnsen — or any DOJ nominee — to be a part of recess appointments that can and will (rightly or wrongly) be characterized as political. Obama’s statement itself admits the underlying political dispute here, noting that the reasons for the appointments include, as he said in the statement, “I simply cannot allow partisan politics to stand in the way of the basic functioning of government.”

In a Justice Department where the Attorney General has asserted that the renewed independence and decreased politicization of the Department are among his key goals for it, it seems to be more than reasonably possible that Obama or Holder (or even Johnsen) might prefer that Johnsen’s nomination not be added into the political mix of Obama’s first recess appointments.

This seems to me to be even more reasonable for the OLC head, considering the recent publication of the DOJ’s Office of Professional Responsibility report on the activities of former officials in the Office of Legal Counsel. The relationship between the White House and the DOJ OLC during the months and years after 9/11 were not always of benefit to our nation, and itself serves as the strongest argument for why the President might not want to take overly political actions regarding his nominee to head up OLC.

In the end, we do not know the reason why Johnsen’s name was not among those appointed today.

It might, however, not be the worst thing that she was not.

[UPDATE: Firedoglake's emptywheel asked the White House why Johnsen was not included today, and got this non-specific response:

Of the 77 people on the calendar, we are only recess appointing 15 and there are a number of qualified individuals the President has nominated that do not fall in this group.  If the Republicans do not end their campaign of obstruction, the President reserves the option of exerting his authority to recess appoint qualified individuals in the future, but our hope is that we can move beyond the partisan politics that have held up the process for the last fifteen months for the good of the American people.

Of this, Glenn Greenwald asked me, "If they were motivated (as always) by such noble considerations, why wouldn't they just say so when asked?"

I responded that, assuming my thoughts to be on target, doing so could push the nomination into an unworkable political back-and-forth that wouldn't move it forward. I did, however, note that I remain open to another explanation. And expect, at the least, an alternative argument to come from Greenwald.]

Popularity: 71% [?]

Feldblum, Others to the EEOC in Series of Recess Appointments



Chai Feldblum was one of 15 Obama nominees who today were given recess appointments (White House release) — including several others who will be joining Feldblum at the EEOC. At Metro Weekly, I wrote:

On Saturday afternoon, March 27, the White House announced the recess appointments of 15 administration nominees, including openly lesbian Georgetown University Law Center professor Chai Feldblum to be a commissioner on the Equal Employment Opportunity Commission. . . .

Obama granted a recess appointment today to all the EEOC nominees, including his nominee to serve as chair of the Commission, Jacqueline A. Berrien. Berrien, according to the White House, has served as the associate director-counsel of the NAACP Legal Defense and Educational Fund since September 2004.

In announcing the move, Obama said in a statement, ”The United States Senate has the responsibility to approve or disapprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.”

Feldblum has a significant history with civil rights legislation in Washington, D.C., having worked closely with the Senate on drafting the Americans with Disabilities Act and worked with Congress and LGBT organization in the crafting of and revisions to the Employment Non-Discrimination Act, currently before Congress.

I earlier covered the Senate confirmation hearing for Feldblum here.

As for the recess appointments themselves, I wrote earlier that I believed this was the very set-up being planned when Obama wrote on Feb. 11 that he would not be issuing recess appointments during the previous recess. I wrote at the time:

At this point, the Senate Republicans have made clear that they are concerned about the Administration — as Ezra puts it — “finding ways to avoid being filibustered.” Obama has made it clear that he views recess appointments as one such option. The set-up is made, and the Administration only needs to point to Senate inaction through the next recess to make its justification to the public for its eventual recess appointments. Or, in the alternative, the Senate Republicans will not hold up Obama’s nominees and the Senate will be able to vote on them.

As much as Ezra wants to pretend that Obama’s Administration is the same as the Bush or Clinton Administrations, the fact remains that it is not. Whether that be a function of Obama’s method of leadership, congressional leadership, the makeup of the Democratic caucus or Republican abuse of the cloture rule, this is the reality in 2010. Moreover, so long as Obama is losing a handful of Democrats — due to illness or actual opposition — on votes like [NLRB nominee Craig] Becker’s (where seven Democrats did not vote for cloture), I think he understandably wants to make sure that he has set up his use of recess appointments as unassailable (though, of course, assailed they will be).

Today, Becker was among those given recess appointments.

It should be noted that both the EEOC and the NLRB were targeted by Obama during this recess. Six of the 15 appointments went to those two boards that represent positive government work in two critical Democratic issue areas: labor and civil rights. Although these are “insider” positions, this was an important step toward making the D.C. groups that were supportive of Obama’s health care reform — despite not getting all that they wanted from the reform — see very quick movement after health-care passage on an issue that is important to them.

Popularity: 10% [?]

‘Nuclear Arms’

I admit a loud laugh at the washingtonpost.com this afternoon.

The washingtonpost.com site earlier this afternoon.

The washingtonpost.com site earlier this afternoon.


Popularity: 8% [?]

The Politics of Barney

Rep. Frank (D-MA) at a reception for GLAAD on Thursday evening.

Rep. Frank (D-MA) at a reception for GLAAD on Thursday evening.

Following up on Thursday’s news, I look at “The Politics of Repeal” at Metro Weekly:

Calling the changes to the ”Don’t Ask, Don’t Tell” military policy a ”great improvement” that supportive members of Congress had ”been urging them to do,” Rep. Barney Frank (D-MA) quickly framed that movement in terms of the lack of movement on the issue from the White House, saying on Thursday evening, ”They’re ducking.”

The mix of cautious optimism and a push for further movement from President Barack Obama was not that unusual of a response to the announcement by Defense Secretary Robert Gates that military enforcement of the ”Don’t Ask, Don’t Tell” would be handled in a ”fairer and more appropriate manner.”

And, Rep. Frank, as usual, was not one to hold back:

Asked if repeal efforts would succeed this year, Rep. Frank said, ”I hope so. I think the President’s got to step up more. I’ve talked to both Sen. [Carl] Levin [D-Mich.] and Rep. Murphy, and we’re still trying to do that. It’s harder with the administration.”

Following up on what he previously referred to as the ”ambiguous” nature of the White House’s support for a repeal this year, Rep. Frank said, ”They’re ducking. Basically, yeah, they’re not being supportive, and they’re letting Gates be the spokesman, which is a great mistake.”

Read it all, including the White House’s response, at Metro Weekly.

More about Rep. Frank, turning 70 this year, at the Victory Fund’s GayPolitics.com.

Popularity: 6% [?]

Live . . . From the Pentagon

Secretary of Defense Robert Gates and Chairman of the Joint Chiefs Adm. Mike Mullen speak to reporters this morning at the Pentagon.

Secretary of Defense Robert Gates and Chairman of the Joint Chiefs Adm. Mike Mullen speak to reporters this morning at the Pentagon.

This morning, I attended the Pentagon briefing on the new separation policies for “Don’t Ask, Don’t Tell.” My first news article on the announcement is up:

Secretary of Defense Robert Gates and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen announced this morning at a Pentagon news briefing changes to the military’s separation policies under ”Don’t Ask, Don’t Tell” for both enlisted and regular and reserve commissioned officers.

The most significant change to the policy will raise the level of the officer who is authorized to initiate an inquiry or separation proceeding regarding the DADT policy to a general or flag officer in the servicemember’s chain of command.

Speaking to efforts to repeal DADT, Gates said, ”I do not recommend a change in the law before we have completed the study. … Doing it hasitly is very risky.”

Mullen said that he echoed the secretary’s statement.

Defense Dep't General Counsel Johnson

Defense Dep't General Counsel Johnson

Following the initial briefing, Defense Department General Counsel Jeh Johnson also spoke with reporters:

Dept. of Defense General Counsel Jeh Johnson was asked about discharge proceedings that began based on information that would no longer be considered credible and which resulted in a servicemember later giving a statement admitting that they were gay or lesbian, and if the investigation would start over.

”That’s a good question and we’ll have to work that through,” Johnson said. Nothing in the revised separation procedures appears to require such admissions from being excluded as discharge proceedings go forward.

More to come . . .

Popularity: 6% [?]

DC Marriage Equality Safe

Sen. Bennett (R-UT) (Image from AP/Susan Walsh)

Sen. Bennett (R-UT) (Image from AP/Susan Walsh)

After 1 a.m. this morning, as the Senate considers a slew of Republican amendments — many “poison pills” — to the House’s health care reconciliation “fixes,” Sen. Bob Bennett (R-UT) had his anti-LGBT, anti-federalist amendment considered.

The amendment would have stopped marriage equality in the District until a popular vote on the matter could be held.

By a little past 1:30 this morning, however, the amendment was defeated. Sen. Sherrod Brown (D-OH), presiding over the late-night session, announced the roll call vote: 36-59.

At least one Republican, Sen. Olympia Snowe (R-ME) was reported by the clerk to have voted no on the amendment. [A second Republican, Sen. Susan Collins (R-ME), also voted against the amendment.]

The entire process of considering all these amendments — deemed #votearama on Twitter — is being detailed by CAP’s @wonkroom.

Popularity: 17% [?]

Getting It Done

President Barack Obama talks to a Member of Congress on the phone in the Oval Office on Sunday. Assistant to the President for Legislative Affairs Phil Schiliro works in the background. (Official White House Photo by Pete Souza.)

President Barack Obama talks to a Member of Congress on the phone in the Oval Office on Sunday. Assistant to the President for Legislative Affairs Phil Schiliro works in the background. (Official White House Photo by Pete Souza.)

As folks watch the House on C-SPAN, President Barack Obama nails down the final votes needed to pass his health care reform package in the House on Sunday. The vote for passage is expected this evening.

Popularity: 7% [?]

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