To follow up on Gabriel's post below, White House adviser Valerie Jarret has claimed that the Obama administration's decision to defend the constitutionality of DADT is something the Department of Justice is "required" to do.
The problem with this assertion is that it's not true. There is certainly no constitutional or statutory requirement that an administration defend federal laws from constitutional attack. There is an (understandable) norm that the DOJ generally defend the constitutionality of federal laws, but there have also been any number of exceptions, and a law that burdens and stigmatizes the rights of a minority is a particularly strong candidate to go undefended.
Another argument that could be made on behalf of the administration's position is that majorities are entitled to constitutional deference from the courts. The problem in this case would be: what majorities? DADT is extremely unpopular with the public and is currently opposed by majorities in both houses of Congress and (we are repeatedly reassured) by the White House. I'd love to hear an argument explaining why minorities in the Senate who are empowered by anachronistic institutional arrangements are entitled to any special deference from the courts. Holding DADT unconstitutional would represent both the protection of minority rights and a defense of political majorities.
Gabriel is right: The Obama administration does have discretion here, and the case for not defending the constitutionality of the law in this case is extremely compelling. Defending DADT on appeal can't be defended.
--Scott Lemieux
