DADT and the Courts

| Mon Nov. 8, 2010 10:55 PM PST

Responding to my post earlier today about Republicans, not Democrats, being primarily responsible for blocking repeal of Don't Ask Don't Tell, Glenn Greenwald tweeted:

DADT was gone - done - and Barack Obama brought it back, probably for years. That's just a fact.

Glenn was talking about the fact that the Department of Justice is appealing a September district court ruling that held DADT unconstitutional. But this is an argument I have a real problem with. It's not because I have a problem with court rulings on issues like this, but because I have a problem with district court rulings on issues like this being used as a handy excuse for presidents to overturn laws they don't like.

Let's face it: if you pick your jurisdiction right you can probably find a district court judge to rule just about anything unconstitutional. It would be easy, for example, to find a district court judge somewhere to say that the healthcare reform law was unconstitutional. If this happened in 2013 and President Palin decided not to appeal the ruling, thus overturning the law, what would we think of this? Not much, and rightfully so. A district court judgment is just flatly not sufficient reason to overturn an act of Congress.

I guess the reason this is on my mind is that George Bush is back in the news, and it strikes me that this is the same category of reasoning he used to justify the use of torture on enemy combatants. Bush, of course, didn't bother with the fig leaf of a court ruling, but he used OLC memos to provide the same kind of excuse to uphold only the laws he wanted to uphold. A lot of liberals spent a lot of time condemning this at the time, and we were right to do so. This is really not a tactic we should be defending now just because the law at stake is one we don't like.

On a different note, I sometimes think that Republicans must be busting a gut over all this. Here they are, working loudly and relentlessly to prevent the repeal of DADT, and what's the result? Lots of liberals sniping at each other. You can almost hear Karl Rove cackling over his Diet Coke. Political strategy rarely pays off so beautifully.

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