Fed. Judge Just Issued Worldwide Permanent Injunction Against Don't Ask/Don't Tell

by Justitia Themis 62 Replies latest social current

• 

  beksbks

  In this particular case, the judge ruled well IMO.

  But Jefferson realized how dangerous the judiciary branch could be.

  "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party,(We've seen this at work in recent years with two of the most partisan and detrimental decisions in a very long time) for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." --Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

  "In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow... The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." --Thomas Jefferson to Spencer Roane, 1819. ME 15:212
• 

  beksbks

  In the article LWT linked

  Although Obama opposes the law, a Justice Department spokeswoman said that the administration was defending the statute because it was obligated to defend federal laws when challenged in court.

  "As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed," said Justice Department spokeswoman Tracy Schmaler. "The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged."
• 

  leavingwt

  The Defense of Marriage Act is another matter. This doesn't relate to Don't Ask Don't Tell.

  You are correct.

  Regarding DADT, specifically, here is the latest word from the Justice Department.

  Department of Justice officials said Tuesday that no decision had been made, though the government has known the ruling might be coming since a month ago, when U.S. District Judge Virginia A. Phillips in Riverside said she considered the policy unconstitutional.
  
  At the Pentagon, spokeswoman Cynthia O. Smith also said the order was under review. Other Pentagon officials said a task force created to examine the issue has not completed its study and that town hall meetings with military families were continuing, as was an online opinion survey. If there is no appeal, they said, the ruling would short-circuit that effort.
• 

  leavingwt

  Here's one progressive blogger on why the DoJ should appeal the DADT decision.

  . . .

  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.

  . . .

  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.

  http://emptywheel.firedoglake.com/2010/10/12/judge-phillips-dadt-order-is-not-the-victory-being-claimed/
• 

  Ding

  Jefferson couldn't stand his cousin, Chief Justice John Marshall.

  He saw his assertion of the power of courts to declare laws unconstitutional as tyranny in the hands of an unelected oligarchy.
• 

  leavingwt

  Rachel Maddow. . .

  http://www.youtube.com/watch?v=AWouOKXjCG0
• 

  BurnTheShips

  Does this Federal judge even have standing to direct internal military policy? It is not clear to me.

  Is it a Federal crime to be openly gay in the military?

  Also, if this injunction bans DADT, does this mean the military falls back on its previous policy of questioning sexual orientation?

  Remember, it was DADT that allowed homosexuals in the military to begin with.

  BTS
• 

  beksbks

  Remember, it was DADT that allowed homosexuals in the military to begin with.

  BTS

  Right, never happened before DADT
• 

  beksbks

  Subtitle G: Other Matters - Expresses as congressional policy the prohibition against homosexual conduct or activity in the armed forces. Requires separation from the armed forces for such conduct or activity. Directs the Secretary to ensure that the standards for military appointments and enlistments reflect such policy.

  9/28/1993 3:01pm:

  H.AMDT.317 Amendment (A020) offered by Mr. Hunter.
  Amendment sought to require the Defense Department to ask individuals entering the armed forces if they are a homosexual or bisexual, and whether the person engages in, or has a propensity to engage in, homosexual acts.

  9/28/1993 3:01pm:

  DEBATE - Pursuant to the provisions of H. Res. 254, the Committee of the Whole proceeded with ten minutes of debate on the Hunter amendment.

  9/28/1993 3:37pm:

  H.AMDT.317 On agreeing to the Hunter amendment (A020) Failed by recorded vote: 144 - 291 (Roll no. 461).

  9/28/1993 3:37pm:

  H.AMDT.318 Amendment (A021) offered by Mr. Skelton.
  Amendment restates language contained in the bill and establishes congressional policy concerning homosexuality in the armed forces.

  9/28/1993 3:37pm:

  DEBATE - Pursuant to the provisions of H. Res. 254, the Committee of the Whole proceeded with ten minutes of debate on the Skelton amendment.

  9/28/1993 4:11pm:

  H.AMDT.318 On agreeing to the Skelton amendment (A021) Agreed to by recorded vote: 301 - 134 (Roll no. 462).

  http://thomas.loc.gov/cgi-bin/bdquery/z?d103:HR02401:@@@L&summ2=msummary
• 

  B-Rock

  How do you know Obama is lying? His mouth is moving.

  U.S. District Court Judge Virginia Phillips has enjoined the enforcement of Don't Ask Don't Tell.

  It violates free speech and due process, she wrote, rejecting the arguments made by the Department of Justice lawyers who fought against the change... change that President Obama promised a year ago that he would deliver. Here, watch him — it's chilling to witness now:

  http://www.youtube.com/watch?v=FKOTX0OmlNk "It's important to be honest among friends," he says at 0:24 and then literally puts his tongue in his cheek. He was lying and he knew it. Lying about being honest.
  
  But what damnable luck for the Democrats to have this thrown at them 2 weeks before the election! It's such a bad issue for Obama. He hasn't done what he promised, and he's fought against constitutional rights that he ought to be actively pursuing, whether he'd made promises or not. He's going to have to rest on the argument that he was always all about Congress making the change. But why hasn't his Congress gone his way? And do Democrats in Congress want this issue forefronted now? They've only made everyone unhappy — people who want DADT repealed and people who don't. And then there's the additional issue of "activist" judges.... (Phillips was appointed by President Clinton, who, of course,signed the original Don't Ask Don't Tell statute.)