Berman & Asbel, LLP

Obama will try to repeal Don't Ask Don't Tell in Congress but still defending it in Court

As reported by CNN, President Obama, Senate Majority Leader Harry Reid (D-NV) and Senate Armed Services Committee Chair Carl Levin (D-MI) plan another attempt to repeal the Don't Ask Don't Tell policy in the upcoming Congressional lame duck session.  The logic here is obvious as it will be politically more difficult in the next Congress when the House of Representatives, under Republican control will be much more conservative.

At the same time, however, the Obama Administration is defending the Don't Ask Don't Tell law in the courts.  A federal trial judge had ordered the Defense Department to stop enforcing DADT but following an appeal by the Obama Administration Justice Department, an appeals court has stayed implementation of that ruling while an appeal proceeds.  It does indeed appear quite illogical for the Obama Administration to, on the one hand, seek repeal in Congress but at the same time defend this law in the courts. The explanation is essentially this:  The Justice Department is generally considered responsible to defend the statutes enacted by Congress whether or not the administration agrees with them.  For the administration to have simply allowed the law to fall after the initial ruling would be a departure from that practice.  Presidents generally adhere to this practice because they will want their successors to defend the laws they enact later.  An administration spokesman gave as an example the defense by the George W. Bush administration of provisions of the Americans with Disabilities Act that was enacted by a Democratic Congress during the Bush 41 administration even though the Bush 43 administration did not necessarily agree with those provisions.

So, for now, the future of Don't Ask Don't Tell will be up for decision both in the federal courts and in the halls of Congress.

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