Law Prof: Obama Under No Obligation to Appeal DADT

“We are disappointed but not surprised…”

That’s how Servicemembers Legal Defense Network Executive Director Aubrey Sarvis characterized his feelings after the Obama Administration decided to appeal a federal judge’s ruling striking down the military’s Don’t Ask, Don’t Tell policy against gay and lesbian service members.

He’s not alone in that frustration, as numerous other gay rights groups, including the Log Cabin Republicans, who filed the lawsuit in the first place, expressed their disappointment with the decision.

“Whether it is DOMA (Defense of Marriage Act) or ‘Don’t Ask, Don’t Tell,’ it appears the Obama administration is determined to defend clearly unconstitutional, discriminatory laws for as long as it can,” said Christian Berle, Deputy Executive Director of Log Cabin Republicans.

Obama’s determination to continue to defend laws he says he wants gone anyway, like DOMA and DADT, even brought questions from young people at an MTV town hall meeting this week. When asked why he would appeal and why he doesn’t just use his executive powers to end the military policy, Obama said, “This is not a situation in which with the stroke of a pen I can simply end the policy unilaterally. … I can’t simply ignore laws that are out there.”

But, Obama has far more choice in these matters than he seems to be letting on. For one, his administration had no legal obligation to appeal the DADT ruling. They could have simply let it stand and become the law of the land, bypassing a stalling Congress altogether.

Religion Dispatches asked Jason Mazzone, the Gerald Baylin Professor of Law at Brooklyn Law School, to expound on the administration’s constitutional obligations in this matter. Here’s the summary (extended explanation after the jump):

There is a good reason why there is no legal obligation on the part of the executive to defend a law’s constitutionality: forcing the President to defend a statute he believes is without constitutional basis would be inconsistent with the oath the President takes to “preserve, protect and defend the Constitution.” Though rare, there have been cases in which the Department of Justice has declined to defend statutes it considered unconstitutional.

Thus, while there is a tradition of defending statutes, and a general expectation that the administration will defend, there is no legal requirement to do so.

Even if one thinks there is some obligation, implicit in the Constitution, for the President to defend a statute in court, it would be reasonable to conclude that the obligation is satisfied once there has been a full round of litigation, with the arguments in support of the statute presented to a court. A constitutional duty to defend need not mean continuing to litigate once a court has then ruled.

The President didn’t have to defend DADT in court in the first place. He doesn’t have to keep on defending it now that a judge has struck the law down. It would be perfectly legal for the President to say, “A court has ruled. I respect the ruling and in accordance with that ruling DADT will no longer be enforced.”

And the full reasoning…

Except in extremely rare cases, the executive branch, through the office of the Solicitor General, defends acts of Congress that are challenged on constitutional grounds. Defending laws against constitutional challenge makes sense in our constitutional system: Congress thinks a law is constitutional when it enacts it and the President thinks so when he signs it. Defending the statute shows deference to those past decisions and also serves to give a court considering a constitutional challenge the best arguments for why the law is valid. However, there is no specific constitutional requirement that the executive defend a federal statute in court. To find such a requirement in the Constitution one would need to draw an inference from the President’s obligation under Article II to “take care that the laws be faithfully executed.” The argument would be that this provision includes the obligation to answer a challenge to a law in court because if the challenge goes unanswered, the law cannot not be executed. But again, there is no specific constitutional language on point.

There is also no statutory requirement that the executive defend a statute anytime it is challenged in court. Federal statutory law requires only that the administration notify Congress when it has decided not to defend a statute in court against a constitutional challenge and to provide that notice in enough time to allow members of Congress to themselves intervene in the judicial proceeding. [The statutory provision is 28 U.S.C. section 530(D)]

There is a good reason why there is no legal obligation on the part of the executive to defend a law’s constitutionality: forcing the President to defend a statute he believes is without constitutional basis would be inconsistent with the oath the President takes to “preserve, protect and defend the Constitution.” Though rare, there have been cases in which the Department of Justice has declined to defend statutes it considered unconstitutional.

Thus, while there is a tradition of defending statutes, and a general expectation that the administration will defend, there is no legal requirement to do so.

Given that there is no legal requirement to defend a statute in the first instance, there is also no legal requirement to keep on trying to defend it once a court has ruled the statute is unconstitutional. However, as with a decision not to defend a law, there is a federal statutory requirement that the executive notify Congress if it decides not to appeal a court’s ruling that a statute is unconstitutional and to provide that notice with enough time to allow members of Congress to try to intervene. [Also 28 U.S.C. section 530(D).]

Even if one thinks there is some obligation, implicit in the Constitution, for the President to defend a statute in court, it would be reasonable to conclude that the obligation is satisfied once there has been a full round of litigation, with the arguments in support of the statute presented to a court. A constitutional duty to defend need not mean continuing to litigate once a court has then ruled.

The President didn’t have to defend DADT in court in the first place. He doesn’t have to keep on defending it now that a judge has struck the law down. It would be perfectly legal for the President to say, “A court has ruled. I respect the ruling and in accordance with that ruling DADT will no longer be enforced.”

If only the president had the moral and political will to do so …

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