Adam makes a great point about the Obama administration's duty to defend "don't ask, don't tell" in court -- one many of us who have been calling on the administration not to defend the discriminatory law have glossed over:
I think it's perfectly valid to argue, as former Solicitor General Paul Clement has, that the president refusing to defend laws he disagrees with -- even those as blatantly unjust as DADT -- sets a problematic precedent. I don't like the idea of a Republican administration, for example, simply deciding that they no longer want to defend the Voting Rights Act because they think it's an unjust imposition of federal authority on the states.
I agree this is problematic. But this isn't quite the case with "don't ask, don't tell." As Scott Lemieux pointed out, while it is generally the practice of the DOJ to defend laws passed by Congress, there are numerous examples of presidents refusing to do so (John Aravosis at AmericaBlog has taken the time to collect many of them). For example, in 1996 President Clinton refused to enforce a law requiring HIV positive soldiers to be discharged because he thought it was unconstitutional. That's the key distinction: The law in question can't be something that the president happens to disagree with; it has to be facially unconstitutional. Of course, as Adam points out, that's a tricky call for a president to make. You could get a Republican president who claims the Voting Rights Act violates the Constitution and thus declines to enforce it (which, as a side note, it seems like the Bush administration did anyway).
But unless you think Clinton should have started kicking people with HIV out of the military -- or that he is required to enforce any law passed by Congress no matter how egregiously discriminatory -- then you are making a normative judgment: There are certain laws that are so blatantly unconstitutional that the president need not enforce them, but others -- "don't ask, don't tell," in this instance -- are more on the fence. That DADT is generally assumed to fall in this second category is what I think is most disturbing about the administration's stance. Would it be enforcing and fighting in court on behalf of a law calling for schools to be resegregated? Probably not, and it shows the underlying reasoning behind the administration's thinking -- Well, we think this is beyond the pale, but there are reasonable people who think DADT is a good thing.
I don't think there are reasonable people who support discriminating against gays, and I am confident that in 20 years people will acknowledge that.
-- Gabriel Arana
