During a conference call hosted by the National LGBT Bar Association about the government’s recent decision to appeal a recent federal court decision which barred the military from enforcing Don’t Ask, Don’t Tell, Walter Dellinger — acting United States Solicitor General for the 1996-1997 Term of the Supreme Court — outlined a third middle ground that would allow the government to honor its duty to defend existing laws, but also register the administration’s opposition to the policy.
Dellinger recommended that the government allow the DOJ to appeal the policy, but argue that it believes it to be unconstitutional:
DELLINGER: I think it is certainly possible for the President going beyond merely expressing policy disagreements….but we need to distinguish between two senses of unconstitutional. You can say it’s unconstitutional in a predictive sense, that you predict it will be stricken down, and I don’t think you can say it in this case, because the Supreme Court is up for grabs on that issue. But there is also a sense that you can say the law is unconstitutional because you’ve reached your own judgment about the facts of the world that can render the law unconstitutional.
The theoretical rule is that a law that infringes on liberty …is only constitutional if it advances a governmental purpose. Now, the Solicitor General would assume that Congress can decide the military purpose and here Congress has decided that it advances a military mission…but the President, as Commander in Chief, can make his own judgment that it is not necessary and if he concludes as he has said that it’s harmful to the national defense, then in his belief he doesn’t have to give deference to the political branch, he is a political branch. […]
Dellinger explained that the President — represented by the Justice Department — can go into court and argue that “it’s our understanding that this policy doesn’t advance the national interest and that’s what the Chiefs have said.” At that point, the government would be only technically defending the statute, and allow other parties to submit amicus briefs arguing in favor the policy.
This kind of strategy has some legal precedent, Dellinger continued. “In two cases cases, one from the Reagan administration and one from the George H. W. Bush administration, the government appealed cases, but gave its own view that the law they were defending is unconstitutional…and in both cases a 5-4 court disagreed with the government’s position and upheld the act of Congress.”
In this case, Obama would ask the Court to rule that the policy is, in fact, unconstitutional. “I think there are enough instances where the government has done that,” he said. “This is a middle ground between unilaterally not complying with the law and going in an actually defending, arguing that it’s constitutional.” He explained that in this way, the government would also avoid making “malicious” or “homophobic” arguments that are often made by certain conservative organization. “Once you get rid of those arguments, you get down to making arguments that are sort of weaker and weaker and you can be accused by critics of the administration from the right of throwing the case not doing the job. It’s almost better to be candid about it and say…. we’re just going to flat out say, there is not a sufficient government justification for this discrimination and burden….[but] we’re going to give the court the last word.”