With the failure of the Senate to even begin debating the defense authorization bill and an amendment to repeal Don’t Ask, Dont’ Tell some — including the New York Times — are now pressuring the White House not to appeal a recent California District Court ruling which found the policy unconstitutional. Activists argue that because the case challenges the law on its face, the decision could apply to the whole country and will end of Don’t Ask, Don’t Tell. The Justice Department has until tomorrow to file an appeal in the case filed by the Log Cabin Republicans.

Congress’s three openly gay members, Reps. Barney Frank (D-NY), Tammy Baldwin (D-WI), and Jared Polis (D-CO), are already drafting a letter to President Barack Obama, urging him not to appeal the decision and today, the Palm Center released a new analysis arguing that “the White House has a strong foundation for not filing an appeal to the recent case which declared ‘don’t ask, don’t tell’ unconstitutional.” DOJ has an obligation to defend existing law, the report notes, “[h]owever, it would be inaccurate to characterize this common practice as a mandatory requirement that DOJ must always defend federal laws in all cases, without exception”:

First, there is executive discretion to decline to defend federal law when the president believes the law intrudes upon his express constitutional authority, such as the commander-in-chief authority. [...]

Under the second exception, the executive branch has discretion to choose not to defend a federal law when that defense would involve asking the Supreme Court to disregard or alter one of its constitutional rulings….Under the second exception, the constitutionality of “don’t ask, don’t tell” has been seriously undermined by the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003). … Lawrence was the basis for Judge Phillips’s ruling in Log Cabin Republicans. She held that, after Lawrence, the government could no longer rest on unsupported congressional and military opinion alone. Before the government could impose sweeping restrictions on personal intimacy and autonomy, it had to offer evidence that “don’t ask, don’t tell” significantly furthered the government’s interest in military readiness, and that the policy was necessary to further that interest. However, in Log Cabin Republicans the government was unable to produce any evidence beyond the opinions offered in support of the law back in 1993.

Indeed, as AmericaBlog has consistently argued, administrations have a long history of refusing to defend certain laws:

In fact, George W. Bush (ACLU et al., v. Norman Y. Mineta – “The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems.”), Bill Clinton (Dickerson v. United States – “Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda…. Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court’s Miranda cases.”), George HW Bush (Metro Broadcasting v. Federal Communications Commission), and Ronald Reagan (INS v./ Chadha – “Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.”) all joined in lawsuits opposing federal laws that they didn’t like, laws that they felt were unconstitutional. It is an outright lie to suggest that the DOJ had no choice.

As DADT scholar Nathaniel Frank explained last night to Rachel Maddow, Democrats now have three paths for repealing the law: the Senate can try to pass repeal during the lame duck session, President Obama could issue an executive order ending implementation of the policy, or the Justice Department could refuse to appeal the Log Cabin Republicans case. “The court case, I think, is one of the more likely now, for the President to say, this actually is unconstitutional and although there is a tradition of defending standing law, it’s not obligated to defend a policy that it believes is unconstitutional,” Frank added.

The White House has been reluctant to publicly advocate on behalf of repeal, however, and has previously indicated that it would not take steps beyond the legislative compromise to change the policy.

Yesterday, as Republicans successfully filibustered the 2011 Defense Authorization Bill and the repeal of Don’t Ask, Don’t Tell, President Bill Clinton told CBS’s Katie Couric that when he signed DADT into law, he was promised a far more lenient policy:

COURIC: Don’t Ask, Don’t Tell, do you ever regret it as a policy?

CLINTON: Oh yea, but keep in mind I didn’t choose this policy. Don’t Ask, Don’t Tell was only adopted when both Houes of Congress had voted by a huge veto proof margin to legislate the absolute ban on gays in the military if I didn’t do something else…They made it clear they would never let me order my executive order, gays to serve in the military…. And I got beat and so did they gay rights people got beat. [...]

Now, when Colin Powell sold me on don’t pass, don’t tell, here’s what he said it would be: Gay service members would never get in trouble for going to gay bars, marching in gay rights parades as long as they weren’t in uniform, getting gay materials for any of the places they went or any of the things they did, as long as they didn’t talk about it. That was what they were promised. That’s a very different don’t ask, don’t tell than we got. What we got as soon as General Powell retired, was this vicious mid and lower level officer feedback when they for a year or so made it worse than it had been before. Then it sort fo settled down. But the reason I accepted it because it was better than an absolute ban and because I was promised it would be better than it was.

Watch it:

Indeed, in his book Unfriendly Fire, DADT historian Nathaniel Frank writes that while President Clinton tried to hold firm on his campaign pledge to allow openly gay people to serve in the military, Congressional and military opposition forced him to compromise. Then-Sen. Majority Leader George Mitchell (D-ME) told Clinton that “[a]ny executive order can be overturned by act of Congress,” and eventually “Clinton began to make it clear that the compromise would involve only welcoming gays who did not engage in homosexual conduct, although the meaning of this was still being debated,” Frank wrote.

Clinton was assured that the military would not pursue witch hunts against gay soldiers, but his policy led to that and resulted in hundreds of other abuses. The regulations prevent the military from initiating cases, but they instruct commanders to begin investigations once a servicemembers’ orientation is known. As a result, the history of DADT is riddled with witch hunts and with discharges that feel like with hunts. Soldiers were both unintentionally outed by circumstances outside of their control or illegally pursued by their commanders. “The fact that the regulations were tightened by [Secretary of Defense Robert] Gates shows that there was plenty of room to tighten the regulations,” Frank told me.

“It is pretty disingenuous of Clinton, I mean he is on the right side now and he was on the right side then in hopes, but this is not about, he thought this was going to be a fine policy and would be fair and was just badly enforced,” Frank said. “This is about Clinton failed to get done what he tried to do, bless his heart he tried to do it. At a certain point he stopped spending political capitol and he lost. And since the end of his presidency in [19]98, [19]99, he’s been saying ‘the policy if out of whack, we should get rid of it,’ but he’s responsible for signing into law a bad policy.”