Judge Phillips’ DADT Order Is Not The Victory Being Claimed

As David Dayen is reporting at FDL News, Judge Virginia Phillips of the Central District of California United States Federal Court has issued her injunctive order in the Log Cabin Republicans’ (LCR) Don’t Ask, Don’t Tell (DADT) case, formally known as Log Cabin Republicans v. United States of America and Robert M. Gates:

(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.

Judge Phillips’ order is being hailed far and wide as the greatest thing since sliced bread – at least on LGBT rights as they relate to DADT. I am quite decidedly not so sure about that.

I simply do not see how this judge, Virginia Phillips, has either the authority or jurisdiction to enter the sweeping injunctive mandates she has done in sections 2 and 3. The scope of those sections appear well beyond her actual authority and, quite frankly, have the patina of such an overreach that they should be appealed based upon protection of Executive Branch power and authority concerns. It is hard to see how the federal government in DC can allow a single remote District Court judge to have that type of reach over the conduct of the entire United States military across the globe.

There is little question but that the CACD had the jurisdiction to hear the case itself and to grant relief to the specific individuals within the established umbrella of the designated plaintiff “Log Cabin Republicans” within the territorial jurisdiction of the CACD. Further, there is no question Phillips has the authority to rule the DADT policy unconstitutional on a facial challenge to its constitutionality, which the government strongly argued this case was (they probably regret that now I suppose).

But the complaint in this case was brought as to a group – LCR – that claimed locus in, and harm occurring within, the CACD. And, in fact, there was indeed much pretrial litigation of standing and scope and, before the case was allowed to proceed, the LCRs had to put up specific individuals claiming identifiable and quantifiable harm. Plaintiff LCRs eventually did that on the back of one originally identified and specified individual, to which a second specified and joined individual was later included for a grand total of two individuals the group “LCR” was allowed to proceed on as the nominal representative plaintiff.

There is, however, a distinction between having the authority to declare the DADT policy unconstitutional on its face, which Judge Phillips has done, and the further power to immediately force the entire US military worldwide to stop enforcing the policy, which Judge Phillips has now also done.

Having every district court judge in the country with that kind of injunctive authority over military function is likely unacceptable to any administration, and will be for the Obama Administration. It has only grown to this absurd point through the fantastical overreaching of the LCRs and, now, Judge Phillips. They have gone a bridge too far.

And that is the problem here, by wildly overreaching, Judge Phillips has given the White House/Executive Branch legitimate and compelling grounds to appeal that are separate from the critical merits issue of the constitutionality and propriety of DADT, which is a discriminatory and loathsome policy and should be terminated immediately.

In this regard, a grave disservice has been done by Phillips to the cause of elimination of DADT. I think the DOJ has to appeal and seek stay, and will unfortunately do just that. Phillips root determination of unconstitutionality combined with a compelling injunctive order limited to her jurisdiction would have been a very powerful stick in the eye of a recalcitrant White House and would have forced them to act, or not act, on the merits and expose themselves as either true to their word on elimination of DADT or craven impostors. But now there are powerful side issues injected, and even I have issue with the posture the case is now in. And I am livid that it gives the duplicitous on DADT Obama White House something to hide behind when they deserve to be exposed.

    • scribe says:

      In short, the judge would have two easily conceivable reasons. First, to get rid of this case and kick it upstairs where they can deal with it. Second, to play politics. Remember, this was a group of Republicans bringing this case and they are succeeding in embarrassing the Democrats. Gay or not, they’re still Republicans and they’re doing what Republicans do – going after Democrats.

      This judge has really put the Administration on the hot seat – both as to its powers and as to this policy. I agree wholeheartedly with BMAz about how she’s overreached and that the Admin has to appeal, fast and hard. This case and the overreaching is of a piece with some of the cases brought during Vietnam which purported to try to limit the power of the Executive to prolong that war. Sometimes the antiwar plaintiffs succeeded at the trial court level and sometimes not, but they always lost on appeal. All those cases did, in the end analysis, was to further entrench and solidify Executive power against both the Courts and the People. And this case will have the same result.

      So, Barry can either whip Congress to repeal DADT, or he can use the appellate process to enhance Executive power. Any guesses as to which course he will pursue?

      • PJEvans says:

        So, Barry can either whip Congress to repeal DADT, or he can use the appellate process to enhance Executive power. Any guesses as to which course he will pursue?

        ‘You get two guesses, and the first one doesn’t count.’
        If he was really so much against it, he could have issued and executive order last year.

        • Phoenix Woman says:

          Oh, exactly. Hell, if he’s so worried about hurting his precious Blue Dogs that Rahm bought in 2006 and 2008, he should have done it immediately after being sworn in; nearly two years later, the evidence would be in that the whole unit-cohesion bullshit pushed by the Pentagon brass is bullshit.

    • timbo says:

      Well, at the very least the judge, in her ruling, implies that a case could b made that she had overreached!

  1. Teddy Partridge says:

    Adding, for any servicemembers reading this or any declarations that “DADT is OVER!”


  2. Teddy Partridge says:

    Barney Frank urges Obama and DoJ to do nothing until the Lame Duck Congress repeals DADT, making this case moot.

    • timncguy says:

      Not sure I see how that would be the case. The “compromise” piece of legislation stalled in the senate is not a REPEAL. Instead, it gives license to the military to repeal DADT someday in the future, maybe, if they ever really feel like it. That’s quite different than the result of this case which ends DADT discharges immediately.

      I saw Barney Frank making that claim on MSNBC last night and he was misrepresenting what was being done legislatively.

  3. ProgThis says:

    Judge Phillips’ order is being hailed far and wide as the greatest thing since sliced bread – at least on LGBT rights as they relate to DADT. I am quite decidedly not so sure about that.

    Agreed that she overreached. But she did us a service. She is forcing the administration’s hand, so now we know how Obama & Co. really feel about DADT and DOMA, other than, you know, their empty rhetoric.

    I think the DOJ has to appeal and seek stay

    Actually, they don’t. It’s kind of funny that you think this to be true. Is this what they’re saying on son of J-list?

  4. Cellar47 says:

    Barry will swat this down pronto. DADT is not going to be repaled.

    Let me repeat that: DADT is not going to be repealed.FAR more important ENDA is Dead.

    We are outlaws. Always have been. Always will be.

  5. tjbs says:

    The military isn’t a fixed commodity but rather a grouping of people. Those people being in a fluid military moving about may well pass through this jurisdiction at any time during their career. Therefore the only way to insure sexual discrimination doesn’t happen in this jurisdiction would be to enjoin the entire military for discriminating against our brothers and sisters, who are willing to serve and have not, as a reason for dismissal, attended to their assigned duties.

  6. jonathangelling says:

    So, Barry can either whip Congress to repeal DADT, or he can use the appellate process to enhance Executive power.

    It’s not really an enhancement of executive power. This is about the limits of judicial power.

    Judges do not sit as arbiters of public policy. They hear specific cases, involving actual litigants. A worldwide injunction against the entire U.S. military does not relate to the actual case in controversy, or any litigants that might come into her courtroom.

    At best, this judge has authority to hear cases of soldiers discharged under DADT who are residents of her district. She has no authority or jurisdiction to hear cases involving soldiers from outside the Central District of California, so her injunction is unenforceable there and should not have been issued.

    At the very least she should stay her overbroad injunction until the appellate courts can hear the merits of the case. As it is, she’s given the 9th Circuit a perfect dodge: they can overturn her injunction entirely, reversing her decision and kicking the case back down while saying nothing on the merits.

    • Synoia says:

      Judges do not sit as arbiters of public policy.

      That’s just not true. The judiciary are a third, co-equal branch of government, and have significant public policy effect. Two examples:

      Rove V Wade
      Citizens United v FEC

      and a third, who’s name I do not know, stating the EPA can regulate Carbon Dioxide.

  7. bayofarizona says:

    If DADT was repealed legislatively, the decision could be vacated right? Or can the LCR ask the case to be dismissed?

    Obviously this is all hypothetical

  8. onitgoes says:

    Thanks for your insightful info. I kinda figured this was an overreach, but nonetheless am happy that the Judge did it. FWIW, the Judge is pushing the envelop, so kudos for that.

    Is Obama a homophobe? Most likely, but also he’s in thrall to the MIC, and they are definitely homophobes without a shadow of a doubt.

  9. Synoia says:

    Bmaz, thanks for you clarity. Now to the questions:

    The judge having decided (1), should then do what for relief?

    What injunctive relief should the judge have applied in (2) and (3)?

    – Geographical Limitations don’t work:
    Only for Riverside County, CA? Only for CA?

    – Temporal restrictions don’t work. Including a stay on the injunction pending appellate review. The appellate court can stay the injunction while reviewing the case.
    – Organizational (Specific Commands in the Military) restriction don’t work
    – No relief means the decision is moot.

    I’m at a loss to understand how the Judge could circumscribe different relief and not have it either struck as impractical or impossible to implement, or easily circumvented.

    (4) & (5) are no brainers, and require little or no discussion.

  10. timncguy says:

    didn’t the government make, as one of its arguments, that the judge should limit her decision to the “current membership list” of the Log Cabin Republicans? If the judge had done what the government argued for, that certainly wouldn’t have kept the injunction within her local “jurisdiction”.

  11. nyl1 says:


    Why do you call this an overreach?

    If a judge finds a law unconstitutional as applied, she can issue an order enjoining the government from enforcing it as to the particular plaintiffs.

    If a judge has the power to declare a law facially unconstitutional, which you acknowledge is the case here, she can issue an order enjoining the government from enforcing it as to anyone. In many cases, a judge will exercise her discretion and choose to stay such an injuction pending appeal, but there is no requirement that she do so.

    You write: “There is, however, a distinction between having the authority to declare the DADT policy unconstitutional on its face, which Judge Phillips has done, and the further power to immediately force the entire US military worldwide to stop enforcing the policy, which Judge Phillips has now also done.”

    Can you back that up with legal reasoning, or is it just your gut feeling?


    • nyl1 says:

      As a follow-up, a few examples of district courts finding federal laws unconsitutional and enjoining the federal government from enforcing them:

      Child Online Protection Act (twice, I think)

      The NSA’s warrentless wiretapping program

      The law against providing “material support” to terrorist organization

      Certain provisions of the Patriot Act

      • bmaz says:

        I am not sure about the COPA reference, but I am pretty familiar with all of the recent litigation on wiretapping and material support, and your statement is simply bunk. You are confusing rulings on facial constitutionality with injunctive orders specifically enjoining affirmative acts by the government. These are two far different things.

        • bmaz says:

          Offer support??? You have completely and falsely stated what at least two, and I highly suspect all four, of your examples are and expect me to “support” a response? You have to be joking. The restricted and narrow nature of injunctive orders is black letter law. I provided a dead fucking on citation from the same exact fucking circuit CACD is in, the 9th, in a case almost exactly on point (if not EXACTLY) on point, Meinhold, and you say I offer no support??????

          I think we seem to have a failure to communicate here. And it is not on my part.

        • nyl1 says:

          In Meinhold, the court only found the statute unconstitutional as applied to Mr. Meinhold, and therefore the injunction should not have extended beyond him.

          If a statute is found facially unconstitutional, the injunction can apply to everyone.

          Qualar is right that any federal district judge has the authority to enjoin the government. The government may seek emergency appeals from higher courts, but that’s how checks and balances works.

          With all due respect (which you do not extend to others), you’re just wrong about this.

        • nyl1 says:

          My cites do support my argument. In response to my cites, you say only that just because a judge did it doesn’t mean it’s enforceable. Fine, whatever. That doesn’t mean the cases don’t say what they do.

          You have cited only one case, Meinhold, which I explained why it does not support your assertion.

  12. jonathangelling says:

    That’s just not true. The judiciary are a third, co-equal branch of government, and have significant public policy effect. Two examples:

    I’m a lawyer, trust me.

    Anyhow, note Roe v. Wade, e.g. “Jane Roe” was an anonymous Texas woman who sued Henry Wade, who was I believe the D.A. down in Dallas, in the U.S. District Court in Texas, challenging a Texas state law.

    The district judge in Texas could hear that case. A district judge in California could NOT. The district judge couldn’t issue an injunction affecting the United States as a whole. If such an injunction were violated, the judge wouldn’t be able to bring in officials outside of Texas, or hear complaints from residents of states outside of Texas.

    Judges do not sit as arbiters of public policy in the abstract, is what I meant to say. They’re forced to wait on specific cases, involving specific parties, and their decisions in the final analysis only apply to those individuals. They’re enforceable only when similarly situated individuals walk into their court and say, “I want the same rights you gave Jane Roe in that other case.”

    Since a district court judge in the central district of California can’t hear a complaint from a New York soldier discharged under DADT, e.g. (or a soldier from anywhere OTHER than the central district of California), she’s powerless to issue an injunction like this. Sure, they have significant “public policy effect”, but they decide cases. They don’t issue blanket statements on public policy outside the scope of specific parties and litigants.

    A worldwide injunction is unnecessary to deciding the specific case before her: a California soldier discharged under DADT. She could have issued an injunction affecting only that soldier, while overturning DADT on the merits, and been well within her authority. An injunction affecting the entire Central District of California would be much more questionable, but possible. A worldwide injunction, especially against the U.S. military, is a major overreach for a federal district court judge.

    • bmaz says:

      Right, the larger effect of such rulings comes as they are affirmed/decided on appeal. Here, if the root determination that DADT violates constitutional muster is upheld in the 9th Circuit (and I think it almost certainly would be) then Phillips decision is expanded by function of the 9th circuit to be controlling law for the Circuit, and then the country if cert is granted and the circuit decision upheld by the Supreme Court. But this is all from Phillips’ decision, NOT her separate injunctive order. Phillips decision can come to effect the entire country and military wherever it may be through the normal appellate process; her ability to enforce an injunctive order, however, is a far different thing and just does not extend that far.

  13. bmaz says:

    An injunctive oder enjoining activity is supposed to be drawn absolutely as narrowly as possible; that is fundamental black letter law. This one was drawn more expansive than possibly imaginable. It extends light years beyond the scope of the who the plaintiffs are and what individual harm they allege. This case was NOT certified as a class action, it was about a discreet and identifiable plaintiff, LCR, who after much pre-trial litigation was allowed to proceed on the back of, and because of, two specific named individuals. If you do not understand this (and very few people writing on this case seem to), you should go read the full docket; it becomes clear as to how the plaintiff really exists in the litigation, and it is NOT as a representative for every individual worldwide.

    Lastly, keep in mind this issue was actually addressed in the very case that led Clinton to enact DADT to start with, Meinhold. Here is the pertinent language from the decision:

    In addition to rescinding Meinhold’s discharge, the district court permanently enjoined DOD from “discharging, changing [the] enlistment status of or denying enlistment to any person,” from maintaining files, and from “taking any actions” against gay or lesbian servicemembers based on sexual orientation in the absence of sexual conduct which interferes with the military’s mission. The Navy argues that even if the district court did not err on the constitutional issue, its nation-wide injunction cannot stand. We agree.

    An injunction “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v.Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 2558, 61 L.Ed.2d 176 (1979); see also Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir.1987). This is not a class action, and Meinhold sought only to have his discharge voided and to be reinstated. Effective relief can be obtained by directing the Navy not to apply its regulation to Meinhold based only on his statement that he is gay. Beyond reinstatement, and not separating Meinhold on that basis, DOD should not be constrained from applying its regulations to Meinhold and all other military personnel. Accordingly, the injunction is vacated except to the extent it enjoins DOD from discharging Meinhold due solely to the statement that he made

  14. Margaret says:

    This of course doesn’t touch on the fact that it is well within his power as Commander in Chief, (despite what Barney Frank says), to order the services to stop enforcing the code. Though it has been codified in law now, DADT started out as a Department of Defense Directive, (number 3004.26), and was enforced as such between the time it was signed by Clinton until it was codified in law. OBAMA CAN STOP ENFORCING IT. Don’t let anybody tell you differently. They either don’t know any better or they are shilling for Obama.

  15. jonathangelling says:

    As a follow-up, a few examples of district courts finding federal laws unconsitutional and enjoining the federal government from enforcing them:

    You’re confusing a preliminary injunction barring enforcement of a statute during litigation and a permanent injunction. The judge here has issued a permanent injunction.

    Take Ashcroft v. ACLU, e.g.:


    “The District Court issued a preliminary injunction barring the enforcement of COPA because it concluded that the statute was unlikely to survive strict scrutiny.”

    If the judge wants to issue a temporary injunction, stayed during appeal, that would be one thing. Also, this injunction is written to apply not just to the Secretary of Defense, but everyone associated with the entire U.S. military worldwide. Those “acting in participation or concert with them” is particularly troubling language.

      • bmaz says:

        You are citing an order from Anna Diggs Taylor that was slapped down before the ink was dry. (god bless her root decision on legality/constitutionality which oddly was never disturbed I might add)

        This is not very persuasive. And you are further mistaking the fact that some judge somewhere said something with the concept that what they said is actually enforceable.

        • timbo says:

          Enforcement is often an act of traditional respect. When that traditional deference is eroded, the law becomes like wall paper in a condemned house–no one really notices it except the guys who have to demolish the home. In this case, the Administration can choose to ignore the judges ruling or it could choose to enforce the injunction.

          What puts some teeth into it is that the judge can hold people in the administration in contempt for failure to comply with the injunction, right?

        • bmaz says:

          Um, no, absolutely not. Phillips’ order is almost certainly unenforceable against the government except as to the specifically enumerated and known individuals that the plaintiff Log Cabin Republicans were legally determined to be representing in this case. There are exactly two such individuals.

        • timncguy says:

          if there were only two individuals being represented in this vase, then why did the government ask the judge to limit her ruling the the current membership of the Log Cabin Republicans? Were they just fishing, as a somewhat veiled threat, for an identified list of membership that they could use for future discharge proceedings?

          Was the government suggesting that if she was going to overreach, that should should limit her overreach to one they would consider acceptable?

          Would it be considered normal for the losing side in a case to ask the judge to expand the scope of the judgment outside the litigants in the case as long as they just expand it a little bit?

        • bmaz says:

          Actually, I think that is about exactly what occurred. The govt did a shitty job of briefing their objection to the proposed judgment.

          The injunction will be quashed by either the 9th or the Supremes, without any question whatsoever. The harm here is that it gives the Obama WH a valid excuse to continue their hypocritical and duplicitous posturing without action on DADT

        • timncguy says:

          it still doesn’t make any sense to me at all that this judge is supposedly within her bounds to issue a facial ruling but at the same time you say that it is not within her bounds to then issue a facial remedy.

  16. qualar says:

    I don’t believe that this issue involves injunctive overreach at all. It is rather the judiciary performing its constitutional “checks and balance” responsibility to strike down unconstitutional laws. It is clearly a legislative overreach, though, and is nothing new for Congress, i.e. Terry Schaivo, ACORN, and the Patriot Act. Of particular interest is the Patriot Act because it weakens portions of the Constitution without following mandated steps to amend this document.

    • bmaz says:

      So you think every last podunk Federal judge in existence, in every Federal courthouse anywhere and everywhere, should have the unmitigated and unrestrained power to command the United States Military as to how it conducts its affairs all across the globe? Really, this is what you believe? Wow.

      • qualar says:

        Absolutely, the judge has a right and obligation to challenge any law that is questionable. If the judge is in error, there is a review process to overturn the judges ruling. That is the system whether you like it or not. It’s to protect our democracy – not to undermine it.

      • Synoia says:


        In reading your words are you stating the injunctive relief should be only for the two LCR plaintiffs, and then let the scope of the judgement be expanded on further application of the judgment in additional lawsuits (aka: I want what they got)?

        Or by the Supremes which, sorry who, which implies they are inanimate, could make it settled law affecting the whole US military?

        • bmaz says:

          Since this was not certified as a class action for all similarly situated plaintiffs, and since the root ruling of DADT being unconstitutional only has force as to the named plaintiffs and in that particular District Court until such time as it is upheld on appeal in the 9th Circuit and then the Supreme Court, yes that is exactly what I am saying.

          Just to give you an idea, there are other District courts, and I believe a Circuit or two, that have previously (wrongly and unfortunately in my opinion, but they are opinions nevertheless) ruled DADT to be constitutional. Those decisions have full force and effect as to the government in those jurisdictions until reversed or superseded. But Phillips, all by herself, has ORDERED the US government and military to disregard the lawful decisions of courts of equal power and maybe superior power to hers. That is an overbroad and unenforceable order, and wildly so.

  17. bmaz says:

    The judge has the obligation to act within her discretion and power. She did so on the determination of the case on its merits, but wildly exceeded that on the injunctive order. And in doing so, gave excellent cover for a duplicitous administration to hide behind as it further strings out the criminally loathsome DADT policy. If you think that is brilliant and appropriate, and you appear to do just that, we are just going to have to disagree. And I understand “the system” well enough, thank you very much.

  18. jerryy says:

    Good morning bmaz, I hope today finds you well.

    While I understand what you are saying in general, I am not understanding how it applies in particular.

    Suppose a military person serving within this judge’s jurisdiction decides to claim they are gay / lesbian. The military then immediately transfers them to another jurisdiction and proceeds to prosecute them intending to remove them from the service using DADT as the basis. Can the evidence from a jurisdiction where this is ‘legal’ be used where it is ‘illegal’? Could the military be forced to never transfer people out of her jurisdiction because they would be persecuted?

    • Peterr says:

      Bmaz, I’d love to hear your answer to jerryy’s question, because it gets at the nub of crafting a remedy.

      If the injunction is anything BUT worldwide, then what’s to stop the DOD from transferring any GLB military personnel to somewhere outside the scope of the injunction and discharging them there?

      And you know that there are those at the DOD who would move heaven and earth to take advantage of a loophole like that.

  19. sonofloud says:

    Lawyers routinely ask for more than they want and she knows her ruling is headed for appeal…..get a clue.
    The notion that it somehow gives Obama legitimate grounds to continue discrimination is absurd.

  20. lysias says:

    Gibs says DOJ is preparing to appeal (but Obama nevertheless still opposes DADT): White House: ‘Don’t ask’ will end soon:

    The White House said Wednesday that recent court decisions have demonstrated to Congress that the “Don’t ask, don’t tell” law will soon end — it’s just a matter of how.

    White House press secretary Robert Gibbs acknowledged the Justice Department is preparing to appeal a court’s decision against the law preventing gays from serving openly in the military, but said President Obama is still committed to ending the policy.

  21. JDM3 says:

    I think bmaz is wrong. Judge Flannery sitting in the District Court for DC heard all the multifarious challenges to the Federal Surface Mining Control and Reclamation Act of 1977 and associated policies and regulations over a number of years and neither the DC Circuit nor the SCOTUS quailed at that, even though his numerous rulings affected events in the 23 coal mining states – which don’t, obviously, include DC. In Re Surface Mining Regulation Litigation. Likewise, when Judge Fullam administered the enormous Penn Central bankruptcy, he set the gold standard for universal injunctive jurisdiction by the not so podunk federal courts. Both District Courts and Bankruptcy Courts exercise this jurisdiction whenever a multistate or multinational corporation go into Chapter 11. Such companies have assets and creditors all over the place. When someone is doing something illegal to one or two people, they don’t remain at liberty to keep doing it to everyone other than those plaintiffs, unless the judge chooses to restrict his or her order, which hardly makes any sense since here since we’re dealing with nation wide issues of due process and equal protection. The class action is a device of judicial administration, not the sole avenue for relief for other gay soldiers. Nor should they each be compelled to court to get the same relief. The Article III judges are the gatehouse to the federal court system – if Judge Phillips is reversed, it will be on substance under the due process and equal protection clauses. The Federal government gets sued virtually every day and appealing this ruling won’t stop that nor will it restrict the jurisdiction of a sitting federal judge to grant relief on constitutional grounds.

    • beowulf says:

      Agreed, what’s more if a district court lacked the power to issue an injunction valid outside its district, then consent decrees (which, after all, don’t go to the Circuit Courts or the Supreme Court since no one can appeal them) involving interstate commerce would be invalid outside the district of the issuing court.

      The Government not appealing the DADT injunction is the functional equivalent to the Government agreeing to a consent decree. Conveniently enough, the US DOJ and the US DOD operate under the authority of one man (Art. 2 “The Executive Power shall be vested in a President of the United States of America”), so a nod of the head in a cabinet meeting is all that’s needed to end DADT today.

      • bmaz says:

        It is NOT just an injunction operative outside the district. It is an injunction operative worldwide against the command and structure of the US military. If you don’t think the military is a bit different than a Widget company or whatever, then I guess I understand you point. But there is a looong history of cases recognizing the different standing of the military.

        • beowulf says:

          The Bill of Rights don’t apply to a Widget Company. It does apply to the US Department of Defense, which operates (among other places) in the Central District of California.

          Were I a betting man, I’d wager you are correct that on appeal the injunction would be lifted simply because courts give such wide deference to the military. My point is that the military takes its orders from the Commander in Chief. If, say, President McCain were ordering DOJ and DOD to fight this injunction, I wouldn’t like it but we all know that elections have consequences.

          What bugs me is that the Commander in Chief is a President who won office after campaigning against DADT. If he chooses (and its his authority alone, Article 2 and all that) to appeal this decision and fight the injunction, its telling us that, sorry suckers, elections do not have consequences. I find that more distressing than the spectacle of “a remote district court” enjoining the Department of Defense from violating the Constitution.

          McCain is opposed to repeal of “don’t ask, don’t tell,” citing the advice of military leaders who say that the system as it stands is working… Obama, on the other hand, is strongly in favor of repeal, and has made this one of the principle issues of his gay rights platform.


        • bmaz says:

          What bugs me is that the Commander in Chief is a President who won office after campaigning against DADT. If he chooses (and its his authority alone, Article 2 and all that) to appeal this decision and fight the injunction, its telling us that, sorry suckers, elections do not have consequences. I find that more distressing than the spectacle of “a remote district court” enjoining the Department of Defense from violating the Constitution.

          Ah!! Now we are in complete agreement on something! And that is why the diversion of Phillips’ order perturbs me. If I am Obama, I simply say “Well I have to appeal this overreach into Executive and military authority, but of course I am otherwise committed to ending DADT”. If Phillips had kept her order pared back, there would be no such cover and the decision by the WH to appeal anyway (and you know they were going to appeal; they have not done squat to follow through with their rhetoric yet) would have really shown their hypocrisy. And that is my point. If I thought Phillips’ order could stick, I would be jumping for joy. But it can’t and won’t, and in light of that, I think it did a disservice to the effort behind it, to wit elimination of DADT.

        • beowulf says:

          Yeah, I take your point that since either the Circuit Court or the Supreme Court will likely strike down the injunction on appeal, this decision is an ephemeral victory. The nub of the issue is that the President doesn’t have to appeal. Remember, the DOJ, DOD, the Fish & Wildlife Service, the Jet Propulsion Laboratory and your local Post Office (and I’d argue the Federal Reserve too, damn you Humphrey and your executor too) all do the work the President is personally responsible for handling, the poor guy just doesn’t have enough hours in the day to do it all himself.

          The Plaintiff and the DOJ could negotiate a consent decree that enjoins DADT (without any need for new legislation) while protecting presidential authority as Commander in Chief. After all, in past DADT cases, the President (acting through his agents) has always objected. A consent decree with Presidential approval would be a different matter all together. What’s more, it wouldn’t create precedent for court injunctions in any future case (on different issues) where the President was not in agreement.

        • bmaz says:

          Absolutely. And I just did not want anything detracting from the primacy of the pressure on the President to do so, because I am certain he is looking to try to keep playing both sides of the fence. Phillips’ order will never be left to stand in the short term, and it being interposed just gives an out to the WH. An out that, quite frankly, even I grant is healthy basis for challenge to protect Executive authority. I really appreciate what Phillips was trying to accomplish, but I am leery of the precedent being set that any district court judge can enter such a sweeping order against the military. And I want DADT dead now. Thus why I am up in arms over it.

        • JDM3 says:

          Don’t think any of that really matters. Obamco will jam through a fast merits appeal and the Circuit and/or the SCOTUS will be more than happy to say DADT is fine and Obama could go further if he wants to. On the procedural aspects, I’ve said my say. I think that order is good.

        • bobschacht says:

          Rachel Maddow had a rather pessimistic assessment of the outlook for DADT tonight. She thinks Obama will appeal the court’s decision, which will keep DADT officially the law indefinitely.

          Bob in AZ

    • bmaz says:

      Again, you are mistaking the authority to enter a decision on constitutional grounds with the ability to wildly expand an injunctive remedy beyond the scope of the case and controversy in front of her, not to mention the territorial jurisdiction of her court and in favor of people and entities never contemplated or named as part of the litigation. And there is a fundamental difference between jurisdiction over private business entities for BK purposes and the United States Military for personnel and command/control purposes. There is a long history of cases that disfavor management of military issues by federal courts; while it is certainly appropriate that courts have the jurisdiction to render the opinion as to a facial constitutional challenge, having injunctive authority to command action contrary to current policy, that has been upheld by other courts, and that is within the purview of the military leadership in DC until Congress or the supreme court provides otherwise, is quite another.

      I fully understand where the folks saying this is all hunky dory are coming from, and I respect your/their right and desire to argue the same. But I do not buy it for a second, do not think it is a scope of power a remote district judge does or should have. I predict her attempt at an unmitigated global enjoinder will be, and properly so, slapped down immediately. It was a grab for power the court should not have made, and that the Administration MUST fight. And it completely detracts from what otherwise would have been beautiful pressure and framing against their reticence to make good on their DADT promises. If you think that is a win and proper, then so be it; for the reasons I have clearly delineated, I think that is most certainly not the case. We shall see how long this little overreach last before being slapped down. If I am wrong about that, I will be happy to admit it.

      • beowulf says:

        the ability to wildly expand an injunctive remedy beyond the scope of the case and controversy in front of her, not to mention the territorial jurisdiction of her court and in favor of people and entities never contemplated or named as part of the litigation.

        1. Isn’t the point of a challenge to federal law on facial challenge on constitutional grounds that the law is unconstitutional under any circumstances against any party? Title III judges have the authority to enjoin enforcement of unconstitutional laws. A district court can issue the order which can be appealed (or not) to the Circuit Court and the Supreme Court.

        2. territorial jurisdiction, The Gitmo habeas corpus cases have made clear, “the Constitution follows the flag”, the Constitution goes outside the wire with every Marine on patrol. Likewise, it also rests in climate-controlled safety in every shopping mall recruiting station.

        3. people and entities never contemplated– the Constitution gives the President and Congress authority to organize and operate the Army and Navy (oh alright, and the Air Force too). Clearly the intent of this injunction is to protect the constitutional rights of every soldier, sailor, airman and marine who serves under the Commander-in-chief and his appointed officers (whether or not the service personnel are gay or not is irrelevant as, say, whether every resident of DC or Chicago wishes to be a gun owner).

        Specifically listing every member of the protected class by name, rank and serial number is, I would argue, unnecessary.

        • bmaz says:

          The plaintiffs were not proceeding as a class, the pre-trial litigation made the scope of the plaintiffs’ case and controversy quite clear, and it was indeed very restricted. Again, how does Phillips have the authority to overrule lateral or superior Article III courts that have decided differently? The answer is she does not. Furthermore, and again, the lineage of cases as to the special circumstance of the US military is quite clear that injunctive orders against them are to be extremely narrow and are disfavored. If you want to address those points fine; if not, then we simply disagree and that is healthy and good too. I think it was a completely asinine order by a judge that may have meant well, but actually for the reasons stated likely provided cover to an Administration that does not deserve it. I also think there is zero chance her order will hold up if the government challenges it.

  22. lysias says:

    When the courts have deferred to the military in the past, they have been deferring to the expertise of a virtual unanimity of commanders.

    There is nothing close to military unanimity on the necessity of DADT. Adm. Mullen, the Chairman of the Joint Chiefs, says the policy should go. SecDef Gates says the policy should go. Colin Powell says the policy should go. Many, many officers agree.

    • beowulf says:

      When the courts have deferred to the military in the past, they have been deferring to the expertise of a virtual unanimity of commanders.

      You’re probably right, but it should be irrelevant. The only military expertise a court should defer to is that of the Commander in Chief. After all, in the summer of 1945, the three senior field commanders, General of the Army MacArthur and Admiral of the Fleet Nimitz in the Pacific and General of the Army Eisenhower in Europe, all opposed the use of atomic weapons against Japan. All irrelevant (though, in retrospect, they were right) since the Commander in Chief, President Truman came out the other way.