White House Asks Court To Keep Don’t Ask, Don’t Tell In Place

The Obama Administration is asking the 9th Circuit Court of Appeals to reinstate the stay on the order striking down Don’t Ask Don’t Tell, even though the policy is already well on the road to repeal:

The Obama administration asked a federal appeals court late Thursday to suspend its decision last week ordering an end to enforcement of the military’s “don’t ask, don’t tell” policy, which bars gay people from serving openly in the armed forces.

The Justice Department argued that the government wants to stick with the timetable set in last year’s congressional action to repeal “don’t ask, don’t tell.” It provides a grace period for retraining to integrate gay service members, and a 60-day evaluation to certify that the change won’t hurt military readiness.

Continuing to enforce the policy is necessary until that review is completed, a government attorney argued.

Under the deferred repeal, President Obama, the Defense secretary and the chairman of the Joint Chiefs of Staff must sign off on the certification that the military is thoroughly prepared for the change.

“Judicial deference is at its apogee when Congress legislates under its authority to raise and support armies,” the government said in its 30-page legal brief, quoting constitutional language. In its motion to the U.S. 9th Circuit Court of Appeals, the government focused on the separation of powers, rather than a defense of the policy’s merits.

Needless to say the Plaintiff’s aren’t too happy:

The gay Republican group which brought the lawsuit that led to the short-lived injunction against “don’t ask” last year and the return of that injunction this month, blasted the Obama administration’s latest move.

“This latest maneuver by the President continues a pattern of doublespeak that all Americans should find troubling. All this does is further confuse the situation for our men and women in uniform,” Clarke Cooper of the Log Cabin Republicans said in a statement. “Let me be clear – the president is asking the court for the power to continue threatening servicemembers with investigation and discharge, and the right to turn away qualified Americans from military service for no reason other than their sexual orientation. Even if the administration never uses that power, it is still wrong.”

But a Pentagon lawyer told a group of liberal activist lawyers that the process under the law should be allowed to work itself out:

“Repeal of this law will occur in my judgment, and the judgment of a lot of others, smoother if it is done through the democratic process, if it is done through the political branches,” Johnson told the American Constitution Society. “That is a process that the lawmakers, the people’s representatives—in consultation with the administration—devised for bringing about the end of don’t ask, don’t’ tell. That is a more orderly and in my judgment a sustainable process than a court order that suddenly imposes a worldwide injunction on the entire military worldwide to stop enforcing a law that the Congress passed in 1993.”

I tend to think the Administration has the better argument here. Congress passed a law back in December and set up a procedure to ensure that the policy would be  repealed in a way that wouldn’t be disruptive to the military. The Pentagon has been following that procedure and, by all accounts, is only weeks away from the certification after which DADT will be 60 days away from final repeal. It seems to me that the Court should defer to Congress and let that process work itself out.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Vast Variety says:

    The problem with that is that until the certification is complete gay servicemen and women are still getting discharged for no good reason. If they need to halt the discharges.

  2. VV,

    Are you sure? My understanding is that they’ve essentially suspending enforcement