Hopey changey unconstitutional-y

posted at 8:45 am on October 13, 2010 by J.E. Dyer

The enthusiastic Virginia Phillips, US District Court judge in Riverside, California, yesterday enjoined the Department of Defense to cease enforcing “Don’t Ask, Don’t Tell” (DADT) forthwith.  The US Justice Department had appealed her September ruling that the law is unconstitutional, but Phillips issued her injunction pending higher court action.

It’s not clear that, as a federal district judge, she even has the authority to do this.  The whole case, which was brought originally by the Log Cabin Republicans, has reeked of bad-law exceptionalism.  What standing the LCR had to bring the suit in the first place is a very good question.  The idea that it is a party injured by DADT is not one that would necessarily hold up in cases brought under other aspects of law.  Phillips is out on a limb with the ruling against a law passed by Congress; in no case should a lower-level district judge issue the final decision on the constitutionality of a federal law.  Americans have every right to expect that the weight of long precedent will preempt this decision’s practical effect until it has gone through the appeals process.

Phillips is also exceeding her authority in issuing a global injunction to the military.  Effectively, a district court judge can’t enforce an injunction on the whole Department of Defense.  Precedent and tradition aside, there is no means of doing so. The district court judge in Riverside can’t order a US Marshall to somehow enforce this ruling in Crystal City.  It’s a form of judicial shenanigans to issue an injunction under these conditions.

Phillips is taking judicial activism to its irresponsible extreme, and she needs to be slapped down by the check of the executive branch’s authority.  The Obama Justice Department appealed her ruling last month precisely because it doesn’t want to be ordered around by the judiciary, even in cases on which it agrees with a particular judge in substance.  What it does next will be even more important.  Frankly, this is a rare case in which Obama should say he does not recognize the judge’s authority to do what she has done, and he will not enforce her inappropriate injunction.

He should take the responsibility for this himself.  In this case, Congress would and should back him up.  A Congressional review of Ms. Phillips’ judicial record is in order.  Meanwhile, the Justice Department should appeal her September ruling with all the promptness it can muster, rather than letting this situation stew unadjusted any longer than necessary.  It has tremendous meaning for the import of law that a federal judge has done this, and what the executive branch does about it next is equally significant.  No law that we count on is safe, if the Obama Justice Department just lets this one go.

We can hope that the self-interest of Obama’s executive inner circle will induce it to do the right thing.  Judge Phillips herself has provoked what must be recognized as a confrontation.  If she is allowed, by passive default, to reach outside the scope of her authority in this manner, the phrase “due process of law” will no longer have any meaning.  If DADT is deemed an issue of constitutionality – well, we have a due process of law for that, and it’s called the appeals process.  The executive branch is the one we have to rely on in this case to ensure that the process is observed.  And if DADT is perfectly constitutional, and therefore a matter of legislation by Congress, well, due process of law will establish that, and Congress is the place for partisans to focus their lobbying efforts.

In a way, it’s good that Phillips’ partisan reach has so egregiously exceeded her due-process grasp.  If she hadn’t issued this inappropriate injunction, the end-run around our “government of laws and not of men” would not have been quite so obvious.  Team Obama could have simply left the appeals process to languish at a snail’s pace, hoping to avoid decisions and undesired political consequences for as long as possible.  But Phillips has forced the confrontation on the executive branch.  That may well turn out to have been a tactical error.

We should hope it was, however we feel about DADT.  Government by feelings and emotion is the worst sort of tyranny.  Government falling apart because one branch is a loose cannon and another is passive and feckless is an equally horrible prospect.  This is a shot across the bow, and it cannot stand. If the Obama executive doesn’t repudiate it quickly, and on the proper basis, the cost of reversing this precedent will only go up.

Cross-posted at The Optimistic Conservative.

This post was promoted from GreenRoom to HotAir.com.
To see the comments on the original post, look here.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Phillips is out on a limb with the ruling against a law passed by Congress; in no case should a lower-level district judge issue the final decision on the constitutionality of a federal law.

Exactly. The only time they do this is when the decision will fall on the side of the liberal agenda.

ted c on October 13, 2010 at 8:46 AM

Obama and take responsibility in the same sentence? Does not compute….

cmsinaz on October 13, 2010 at 8:48 AM

PBHO has already fired back from what I understand, challenging this ruling.

The frothing clownshoes of the left won’t care about the details though, and that is a good thing because it will hurt their support of President Change.

Bishop on October 13, 2010 at 8:52 AM

Progressive justice……….meets militant gay activism?

…..now it’s the military.

…..next?

…..the Boy Scouts of America?

…..Churches?

PappyD61 on October 13, 2010 at 8:52 AM

it’s too bad we just didn’t have someone to espouse our liberal statist values and that would just SAY something and make DADT go away so we can live out our wonderful utopia…oh wait!

/lefties.

ted c on October 13, 2010 at 8:54 AM

The judge can do what to the military if they ignore her?

seven on October 13, 2010 at 8:54 AM

Nothing better than a huge no win situation for President Obama. No matter what he does, he loses. If he sides with the court, he will lose power by allowing the Judiciary to take power from him, if he doesn’t take action he looks weak, and he loses power, if he fights the ruling he loses votes from the gay communities. Hello quagmire.

Rode Werk on October 13, 2010 at 8:55 AM

Are there illegals involved? If so, the Won will be right on it with a lawsuit. Congress has become irrelevant to the regime.

Kissmygrits on October 13, 2010 at 8:55 AM

…..Churches?

PappyD61 on October 13, 2010 at 8:52 AM

Forcing churches to perform gay “marriages” is already on the agenda in some states.

Johnnyreb on October 13, 2010 at 8:56 AM

The only time they do this is when the decision will fall on the side of the liberal agenda.

Yes, I believe the term is “legal positivism”…laws mean what the left says they mean, or they’ll get a pet judge to make it so.

Progressive justice……….meets militant gay activism?

…..now it’s the military.

…..next?

…..the Boy Scouts of America?

…..Churches?

Don’t think that’s not on the agenda. They’ve already sued both BSA and churches for failing to affirm gay marriage.

englishqueen01 on October 13, 2010 at 8:58 AM

No matter what he does, he loses. If he sides with the court, he will lose power by allowing the Judiciary to take power from him, if he doesn’t take action he looks weak, and he loses power, if he fights the ruling he loses votes from the gay communities. Hello quagmire.

Rode Werk on October 13, 2010 at 8:55 AM

at least he’s a consistent loser….

perspectives.

ted c on October 13, 2010 at 9:02 AM

The judge doesn’t … they just assume they do.

tarpon on October 13, 2010 at 9:02 AM

Let’s see,
Article I, Section 8, Clause 14:
To make Rules for the Government and Regulation of the land and naval Forces;

Article II, Section 2, Clause 1:
The President shall be Commander in Chief of the Army and Navy of the United States

I don’t see any Amendment making homosexuality a protected class. Is DADT good or bad policy? That is something that, along with gay marriage, needs to be worked out through the political process, not the judicial process.

rbj on October 13, 2010 at 9:03 AM

as to the scope of the decision–maybe too broad. maybe the Log Cabin Repubs didn’t have standing–maybe alot of things with this decision.

however, a federal judge may make decisions about constitutionality. that is part of what they are there for. The appeals process starts somewhere after all.

kelley in virginia on October 13, 2010 at 9:03 AM

Breaking: Judge rules Constitution unconstitutional.

darwin on October 13, 2010 at 9:04 AM

In the age of obama anything goes…

tinkerthinker on October 13, 2010 at 9:13 AM

“Make me,” -Gen. David Petraeus.

Akzed on October 13, 2010 at 9:17 AM

Phillips is taking judicial activism to its irresponsible extreme, and she needs to be slapped down

Would that be a b&tch slap?

barnone on October 13, 2010 at 9:18 AM

How many divisions does Judge Phillips have?

Akzed on October 13, 2010 at 9:19 AM

Yep, way past time to deal with activist Judges and their power grab. Much work to do!

Keemo on October 13, 2010 at 9:23 AM

Forcing churches to perform gay “marriages” is already on the agenda in some states.

Johnnyreb on October 13, 2010 at 8:56 AM

Where…and on who’s “agenda”?

JetBoy on October 13, 2010 at 9:23 AM

As an adult leader of Boy Scouts for two decades now, I can tell you from personal experience that the gay community has been attacking BSA for at least a decade, if not two.

Keemo on October 13, 2010 at 9:25 AM

It’s not clear that, as a federal district judge, she even has the authority to do this.

No one should ever be given a job that they can’t be fired from. Judges no longer interpet the law, they are the law. Every one should have to live with the consequences of their decisions good and bad. But that’s not the liberal way is it.

Tommy_G on October 13, 2010 at 9:26 AM

Odingle will let this slide. Don’t you see that he’s intent on reducing the US to chaos like that which prevails in many countries in (Muslim) Africa?

Unconstitutional Czars, the abhorrent short-circuiting of the bankruptcy process in the case of the auto makers, the Philly voter intimidation thing, improper use of TARP funds, making a big deal of accusing others of accepting overseas political funding while blatantly doing the same thing himself — am I the only one who’s adding all this up?

C’mon America — wake up and smell the $hit sandwich.

mr.blacksheep on October 13, 2010 at 9:27 AM

If Obama does not appeal, I expect some soldier would have to sue on the other side saying his enlistment contract has been violated if conditions have changed from his enlistment agreement. Otherwise, this ruling would stand.

What if a judge issues a ruling mandating “Cap and Trade” in some Clean Air Act case and Obama has EPA issue regulations on CO2 based on said ruling even though Congress never addressed CO2? Well, that has already happened; so Congress is already bypassed if you can interpret into previous laws whatever a judge wants to despite congress intending no such thing. You don’t have to use the constitution to overturn a law if you can just “revise and extend” it willy nilly judicially. That is why the left is so determined to control the courts. They can mandate what the people’s representatives would not.

KW64 on October 13, 2010 at 9:27 AM

however, a federal judge may make decisions about constitutionality. that is part of what they are there for.

kelley in virginia on October 13, 2010 at 9:03 AM

Excuse me? Sez who?

OhioCoastie on October 13, 2010 at 9:29 AM

It’s called Good order and discipline for a reason.

What behavior could be more prejudicial to Good order and discipline?

Corky
CPO, USN-RET

Corky on October 13, 2010 at 9:31 AM

Let’s see,
Article I, Section 8, Clause 14:
To make Rules for the Government and Regulation of the land and naval Forces;

Article II, Section 2, Clause 1:
The President shall be Commander in Chief of the Army and Navy of the United States

I don’t see any Amendment making homosexuality a protected class. Is DADT good or bad policy? That is something that, along with gay marriage, needs to be worked out through the political process, not the judicial process.

rbj on October 13, 2010 at 9:03 AM

You don’t understand rbj, this is a civil rights issue. /

Rovin on October 13, 2010 at 9:34 AM

Where…and on who’s “agenda”?
JetBoy on October 13, 2010 at 9:23 AM

“We were crushed,” she says. “I lived my whole live, fortunately, without having any overt prejudices or discrimination waged against me. So while I knew it was wrong, I never knew how it felt. And after this, I did know how that felt. It was extremely painful.”

Luisa says that initially, they walked away from the situation. “We were so stunned, we didn’t know what to do. But as we came out of our initial shocked stage, we began to get a little angry. We felt an injustice had been done,” she says.

So the couple filed a complaint with New Jersey’s Division of Civil Rights, alleging the Methodists unlawfully discriminated against them based on sexual orientation. Attorney Lawrence Lustberg represents them.

“Our law against discrimination does not allow [the group] to use those personal preferences, no matter how deeply held, and no matter — even if they’re religiously based — as a grounds to discriminate,” Lustberg says. “Religion shouldn’t be about violating the law.”

Akzed on October 13, 2010 at 9:44 AM

Phillips is also exceeding her authority in issuing a global injunction to the military. Effectively, a district court judge can’t enforce an injunction on the whole Department of Defense. Precedent and tradition aside, there is no means of doing so. The district court judge in Riverside can’t order a US Marshall to somehow enforce this ruling in Crystal City.

So if a sergeant in Fort Hood refuses to follow the injunction, what happens to him? Probably nothing–he’s not in her district! Or if a gay man gets upset and sues, then the case goes before a different judge, and if a different decision is reached, then “the law” is different in two different districts, and the conflict can be resolved only the the U.S. Supreme Court.

If a district judge seeks to impose her will on the military, can she be court-martialed?

Steve Z on October 13, 2010 at 9:44 AM

The only “self-interest” among O-Bama-Lama-Ding’s inner circle I’m interested in is that which will cause them to run screaming over the cliff like lemmings.

JeffH on October 13, 2010 at 9:44 AM

More from NPR:

Adoption services: Catholic Charities in Massachusetts refused to place children with same-sex couples as required by Massachusetts law. After a legislative struggle — during which the Senate president said he could not support a bill “condoning discrimination” — Catholic Charities pulled out of the adoption business in 2006.

Housing: In New York City, Yeshiva University’s Albert Einstein College of Medicine, a school under Orthodox Jewish auspices, banned same-sex couples from its married dormitory. New York does not recognize same-sex marriage, but in 2001, the state’s highest court ruled Yeshiva violated New York City’s ban on sexual orientation discrimination. Yeshiva now allows all couples in the dorm.

Parochial schools: California Lutheran High School, a Protestant school in Wildomar, holds that homosexuality is a sin. After the school suspended two girls who were allegedly in a lesbian relationship, the girls’ parents sued, saying the school was violating the state’s civil rights act protecting gay men and lesbians from discrimination. The case is before a state judge.

Medical services: A Christian gynecologist at North Coast Women’s Care Medical Group in Vista, Calif., refused to give his patient in vitro fertilization treatment because she is in a lesbian relationship, and he claimed that doing so would violate his religious beliefs. (The doctor referred the patient to his partner, who agreed to do the treatment.) The woman sued under the state’s civil rights act. The California Supreme Court heard oral arguments in May 2008, and legal experts believe that the woman’s right to medical treatment will trump the doctor’s religious beliefs. One justice suggested that the doctors take up a different line of business.

Psychological services: A mental health counselor at North Mississippi Health Services refused therapy for a woman who wanted help in improving her lesbian relationship. The counselor said doing so would violate her religious beliefs. The counselor was fired. In March 2001, the United States Court of Appeals for the Fifth Circuit sided with the employer, ruling that the employee’s religious beliefs could not be accommodated without causing undue hardship to the company.

Civil servants: A clerk in Vermont refused to perform a civil union ceremony after the state legalized them. In 2001, in a decision that side-stepped the religious liberties issue, the Vermont Supreme Court ruled that he did not need to perform the ceremony because there were other civil servants who would. However, the court did indicate that religious beliefs do not allow employees to discriminate against same-sex couples.

Adoption services: A same-sex couple in California applied to Adoption Profiles, an Internet service in Arizona that matches adoptive parents with newborns. The couple’s application was denied based on the religious beliefs of the company’s owners. The couple sued in federal district court in San Francisco. The two sides settled after the adoption company said it will no longer do business in California.

Wedding services: A same sex couple in Albuquerque asked a photographer, Elaine Huguenin, to shoot their commitment ceremony. The photographer declined, saying her Christian beliefs prevented her from sanctioning same-sex unions. The couple sued, and the New Mexico Human Rights Commission found the photographer guilty of discrimination. It ordered her to pay the lesbian couple’s legal fees ($6,600). The photographer is appealing.

Youth groups: The city of Berkeley, Calif., requested that the Sea Scouts (affiliated with the Boy Scouts) formally agree to not discriminate against gay men in exchange for free use of berths in the city’s marina. The Sea Scouts sued, claiming this violated their beliefs and First Amendment right to the freedom to associate with other like-minded people. In 2006, the California Supreme Court ruled against the youth group. In San Diego, the Boy Scouts lost access to the city-owned aquatic center for the same reason. While these cases do not directly involve same-sex unions, they presage future conflicts about whether religiously oriented or parachurch organizations may prohibit, for example, gay couples from teaching at summer camp. In June 2008, the federal Ninth Circuit Court of Appeals asked the California Supreme Court to review the Boy Scouts’ leases. Meanwhile, the mayor’s office in Philadelphia revoked the Boy Scouts’ $1-a-year lease for a city building.

Akzed on October 13, 2010 at 9:46 AM

But it couldn’t happen here.

Akzed on October 13, 2010 at 9:47 AM

it’s too bad we just didn’t have someone to espouse our liberal statist values and that would just SAY something and make DADT go away so we can live out our wonderful utopia…oh wait!

/lefties.

ted c on October 13, 2010 at 8:54 AM

As I understand it, “Gays can’t serve in the military” is Law, passed by congress. All the President can do is resend the “Don’t enforce this law” corollary that Clinton added, which would then lead to gays being actively expelled.

Count to 10 on October 13, 2010 at 9:59 AM

Vote all you want for overturning congress and the whitehouse but the real power has fallen into the hands of a very politically activist judiciary. Pending the flacid use of impeachment -freedom will someday require the ignoring or open rejection of such judge’s lawmaking. Let the crisis that develops then, be the catalyst for their cessation, and a return to constitutional governance.

After that the federal agencies need the same treatment. You can’t impeach a leftist in the state dept or the IRS.

Don L on October 13, 2010 at 10:34 AM

Next thing you know, Her Highness Phillips will declare herself Commander-in-Chief. She pretty much already has.

WannabeAnglican on October 13, 2010 at 12:11 PM

Heck, Obama is going to put her on the Supreme Court the first chance he gets.

StubbleSpark on October 13, 2010 at 1:27 PM

Akzed on October 13, 2010 at 9:46 AM

Thanks for posting all the info for JetBoy.
I thought he was joking when he asked that question, but I guess he wasn’t.
How in this day & age could you not know institutions are being sued & attacked by the homosexual community for not kow-towing to them?

Badger40 on October 13, 2010 at 2:38 PM

Progressive justice……….meets militant gay activism?

…..now it’s the military.

…..next?

…..the Boy Scouts of America?

englishqueen01 on October 13, 2010 at 8:58 AM

They already tried that about 15 years ago. 5-4 vote. They lost. (Freedom of Association and all that)

That didn’t stop the 4 liberal judges from trying though.

This current judge is a Clinton appointee. I know it doesn’t bother liberals that the judge doesn’t know about jurisdiction etc… If something advances their agenda the actual law can go pound sand.

One day it will come back to bite them, but their myopia is all they have for now.

scotash on October 13, 2010 at 4:11 PM