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DADT and the Duty to Defend

Professor Jason Mazzone has a political suggestion for the Obama administration over at Balkinization:  wait until after the November elections to decide whether to appeal a federal court ruling that the “Don’t Ask Don’t Tell” policy is unconstitutional.  Noting that the President has opposed DADT and promised to repeal it, Mazzone argues that “[i]f Republicans make significant gains in Congress (thereby making repeal of DADT less likely), the Administration can decline to appeal, thereby leaving Judge Phillips’s ruling in place, with the hope that the failure to appeal won’t get much political traction in 2012.”

This may be good political advice, but it overlooks a couple of relevant legal points.  First, such a strategy would violate the spirit, and quite possibly the letter, of federal law.  The Attorney General is required by statute to report to Congress (specifically, the House and Senate leadership, the chairman and ranking members of the Judiciary Committees and the House and Senate legal counsels) whenever he determines “not to appeal or request review of any judicial . . . determination adversely affecting the constitutionality of any . . . provision” of federal law (28 U.S.C. § 530D(a)(1)(B)).  Such report must be submitted “within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination.” (28 U.S.C. § 530D(b)(2)).  By delaying a decision not to appeal, the Justice Department might very well leave the House and Senate without a reasonable opportunity to intervene in support of the statute’s constitutionality.

Second, longstanding Justice Department policy is that it “appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.”  Neither of these exceptions hold true with respect to DADT.

Accordingly, however much the administration may disapprove of DADT, it has an obligation to defend its constitutionality in court. Evidently it intends to continue to do so.

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