Right now there are huge arguments going on over whether the President is legally obligated (as he says) to appeal the recent court ruling tearing down Don’t Ask, Don’t Tell, and whether it sets any sort of precedent, legal or political, were he to order the DOJ to not appeal.
Legal eagles, what’s the story here?
(I wasn’t sure if this belonged here or in GD; let’s see what the answers are like first.)
IANAL. I suspect he just doesn’t want to give Republicans fuel for attack ads (“Pro-Muslim, pro-Socialist and pro-Gay Gay Gay!”) Frankly, this is one time he really ought to dance with the boys what brung him.
Under a system of separation of powers, deciding whether or not a law is constitutional is a matter for the judicial branch. If the executive branch decided not to respond to a constitutional challenge of a law to the fullest extent, it would in effect choose to repeal that law. The executive branch does not have the power to do that*.
Or think of it this way: Say Bush doesn’t like gun laws which have been properly voted by the legislator. Someone challenges the constitutionality of those laws (it could even be someone associated with the president). The president decides that the government will just not respond to the challenge (or will not respond after the decision of the court which declares those laws unconstitutional). That would be an abuse of power, wouldn’t it? That’s why you have to take it to the highest court that will give a decision.
I am not a lawyer, so feel free to ignore everything I say. But, I don’t think that there is an obligation to appeal even to protect the executive branch from creating some sort of precedent. For example, the justice department, at least with regard to the supreme court, has the right to confess judgment, which is a power they use from time to time. Confessing judgment here means that the executive branch believes that they are in fact wrong about the issue in question, and the result of this is that the other side wins the case, regardless of what the judges of the supreme court were going to rule. Anyway, perhaps this is a power that only applies to the supreme court and not at the lower levels, and the situations aren’t the same, or a thousand other possibilities.
Also, states have at times not bothered to defend suits against their laws. Probably the most notable for the moment was that California didn’t really defend Proposition 8, leaving others to do so in their stead. But the states are not the same as the federal government, and who knows what differences exist between the ways they establish their precedents.
There seems to be some precedent: http://gay.americablog.com/2010/10/breaking-clinton-admin-refused-to.html
As stated he seems to be obligated to appeal it. Hopefully the high court can resolve this issue and gays can be allowed to serve (as they always have anyway).
I find it ironic (and hypocritical) that our country has no problem working side by side in combat with other countries that have already decided this issue in favor of gays serving in their miliraries.