“Log Cabin Republicans vs. USA: One [Headline] Says It All”?
Save for the bracketed word in the title, every word in quotation marks in the title above comes from an e-mail Log Cabin sent out to its list earlier this week. Did they even consider how that sounded?
In the e-mail primarily a fundraising appeal, the organization discusses the court challenge it brought against Don’t Ask/Don’t Tell (DADT), “Log Cabin Republicans is proud to have brought this case, and is committed to fighting “Don’t Ask, Don’t Tell” on all three fronts – on Capitol Hill, within the executive branch, and through the courts.”
While I share their goals of overturning DADT, I don’t share their commitment to fighting this in all three branches of the federal government. I’m concerned about the precedent this would set of having a federal court interfere in military policy, something the Constitution clearly delegates to the executive. Recall that it was President Harry S Truman who desegregated the military. And when President Bill Clinton punted on keeping his campaign promise in 1993, he agreed to legislative intervention. Until he signed that bill, the president could have, with the stroke of a pen, repealed the ban.
Instead of bringing this suit in a court of law, Log Cabin should deploy its resources to lobbying wavering Republican Senators and to working with Service Members Legal Defense Network (SLDN) to push the Senate to move forward on repeal.
15 Comments
RSS feed for comments on this post.
Sorry, the comment form is closed at this time.
Military policy that is blatantly unconstitutional should not be respected or upheld. They are not immune to the Constituion. The judiciary has every right to review this policy, and if necessary, block it’s enforcement.
I for one hope this is the beginning of a new age of aggressive judicial review. The Citizens United precedent seems to indicate that this is happening. I long for the day when every federal court house has the phrase “No You Can’t” carved above the door.
Comment by Jeremy — August 1, 2010 @ 3:26 am - August 1, 2010
Jeremy, the constitution clearly delegates authority over matters military to the executive, not the courts. Do you really want courts meddling in military policy? Perhaps had Log Cabin attempted to make a separation of powers argument, I might agree with this suit (given that the legislature passed DADT), but they’re not.
The real problem here is that Log Cabin just doesn’t get a conservative approach to government and goes whining to the courts just as do the left-wing gay groups because their feelings were hurt. At least that’s the way they sound given the tone of their releases.
This is not a freedom issue, but one of national security. Bill Clinton should have never ceded executive authority over the issue. That said, the courts should not make decisions that are not theirs to make.
It’s too bad Log Cabin doesn’t understand that.
Comment by B. Daniel Blatt — August 1, 2010 @ 3:40 am - August 1, 2010
The court generally is highly deferent to military policy, but when that policy is given from without by Congress, rather than being created from within, there is less deference.
And if the court “interferes”, it certainly would not be setting any precedent bingy do so. The Supreme Court has “interfered” in military policy many times. In just the past ten years, there has been Rumsfeld v. Padilla, Hamdan v. Rumsfeld, Rasul v. Bush, and Boumediene v. Bush (each dealing with Guantanamo Bay and military tribunals in some fashion), as well as Rapanos v. US (which dealt with the Army Corps of Engineers).
davidh
Comment by David Henderson — August 1, 2010 @ 4:19 am - August 1, 2010
As then-Justice Rehnquist wrote for the Supreme Court in Rostker v. Goldberg in 1981:
That decision went on to say that Congress was within its Constitutional authority to not require women to register for the Selective Service. However, it did not reach that conclusion because Congress could do whatever it wanted with the military; rather, it was constitutional because women (at that time) were barred for active combat roles, and the purpose of the Selective Service was to have a pool of potential draftees for combat service.* Thus, it was constitutional because it served a legitimate military need.
Does DADT serve a legitimate military need? LCR says it doesn’t, and presented evidence supporting that position. That is a legitimate question that the courts can answer.
davidh
* – The question of whether it was legal to bar women from combat was not before the court in that case.
Comment by David Henderson — August 1, 2010 @ 4:54 am - August 1, 2010
David, courts should not determine legitimate military needs, the executive should.
Comment by B. Daniel Blatt — August 1, 2010 @ 12:36 pm - August 1, 2010
What “wavering Republican Senators”, Dan? Except for those derided as being RINOs, you’d be hard-pressed to find any GOP Senators who support abolishing DADT. Face it: the GOP establishment is STILL on the wrong side of this with absolutely nothing indicating their willingness to change. Disagree with their motives and/or tactics if you wish but like it or not this is one of the few issues the Dems are correct on – well, verbally at least they lack a spine for much else.
Comment by John — August 1, 2010 @ 1:29 pm - August 1, 2010
[...] “Log Cabin Republicans vs. USA: One [Headline] Says It All”? [...]
Pingback by GayPatriot » Further thoughts on a conservative approach to gay issues — August 1, 2010 @ 5:00 pm - August 1, 2010
Daniel:
The needs of the Military were not in dispute here. What is in dispute is whether the means by which the Military achieves its ends are in fact Constitutional. The Courts examining the Military’s ways of achieving otherwise legit ends is within the Courts’ scope of review.
In fact, the Courts taking an active role in doing this reinforces the Constitution’s checks and balances. The Executive determines the needs of the Military, and the Courts can ensure that the actions taken by the Executive (and by extension, his/her military) to meet those needs do not violate the Constitution.
Comment by Jeremy — August 2, 2010 @ 3:04 pm - August 2, 2010
Sorry, Jeremy, I just don’t buy your argument here. And it could lead to a lot of second-guessing by an overzealous court.
I think the policy is wrong-headed, but it’s not within the court’s purview. And it should make any conservative uncomfortable to have the court overseeing military policy — as it could lead to a judicial imposition of rules of engagement that hamstring effective military action.
Not just that, this shows Log Cabin as nothing more than lickspittles, eager to follow in the footsteps of the gay left, running to courts to seek redress of their grievances. This suit should fail and Log Cabin should start thinking like Republicans.
Comment by B. Daniel Blatt — August 2, 2010 @ 3:41 pm - August 2, 2010
Start thinking like Republicans? Then I suppose you do not support the States’ suit against the Health Care Reform law? After all, they are seeking redress of their (valid) grievances through the Courts. That is what Courts are for– seeking redress of grievances.
[I do support it, but it's clear the constitution forbids such mandates just as it's clear where the constitution delegates authority over matters military. Don't get me wrong; I think the policy itself is wrong-headed. I don't think you're even paying any attention to what I'm taking about. Please go back and read the constitution, something I daresay Log Cabin leaders haven't done, resorting instead to case law and left-wing shibboleths.]
I will never understand the Conservative antipathy towards the Judiciary. You all claim to be pro-Constitution, but how will you ensure that the Constitution is followed if the Courts do not enforce it? W/o the Courts, the Constitution is a worthless piece of paper.
And your argument that the Courts might impose “rules of engagement” on the military to me counts as a “parade of horribles” argument. Our current Republic is now 223 years old. We have had the same Judiciary, same Constitution, this whole time. I don’t recall SCOTUS ever delivering battle plans to the Pentagon.
[And I don't recall SCOTUS every telling Congress how to determine military eligibility.]
Comment by Jeremy — August 2, 2010 @ 3:54 pm - August 2, 2010
There is no Constitution w/o case law. We are a common law nation, and court decisions have the effect of law. Case law provides the guidance needed to enforce the Constitution, to ensure that Judges w/ wildly different views on the document do not just make shit up (something Liberals and Conservatives would love to do w/o the straitjacket of prior precedent).
[And I don't recall SCOTUS every telling Congress how to determine military eligibility.]
You know full well if tomorrow Congress made being Black a disqualification to joining the military that SCOTUS would smack that down, regardless of whether or not they ever “told” Congress how to determine eligibility. Again, military eligibility requirements are a tool through which the military’s overall needs are met. If they set eligibility requirements in a way which plainly violated any of the Amendments, that SCOTUS would have the duty to strike them down. This would be THEIR proper role– ensuring that any act Congress, the President, or the States take do not violate that document.
Comment by Jeremy — August 2, 2010 @ 4:38 pm - August 2, 2010
We disagree very strongly about that, Jeremy. Our constitution changed our system of government from the English common law system.
You go to the constitutional convention to understand the meaning of its very provisions–and the legislative debates to determine the meaning of the amendments. That’s how we preserve the balance of powers.
But, judges in their arrogance overstepped those limitations.
And Congress can’t make being black a disqualification for joining the military, given the 15th amendment.
Please note that for the suit against Obamacare, the plaintiffs (i.e., the various states) are pointing out that Congress did not cite a provision giving it the authority for the mandate.
And there is clearly a constitutional provision granting authority to regulate matters military.
Comment by B. Daniel Blatt — August 2, 2010 @ 4:51 pm - August 2, 2010
15th Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
I don’t see anything about military service in there.
Anyway, from Article II, Section 8: “[Congress has the power] To make Rules for the Government and Regulation of the land and naval Forces;”
This does not preclude Judicial Review. Further, the Bill of Rights, and the other Amendment added later, supercede and modify the effect of this passage. Congress can not make a regulation of the armed forces that violates a later Amendment.
As for the scope of the Judiciary:
The judicial Power shall extend [...] to Controversies to which the United States shall be a Party A suit challenging the Constitutionality of a military regulation would be a suit against the USA, and the Constitution holds that the Judiciary has jurisdiction there.
Comment by Jeremy — August 2, 2010 @ 5:14 pm - August 2, 2010
go back and study the debates over the 14th and 15th amendments.
I think the article 2, section 8 makes pretty clear that Congress has authority to set standards that are beyond judicial review.
Comment by B. Daniel Blatt — August 2, 2010 @ 7:23 pm - August 2, 2010
PS do hope my tone didn’t come off as too saucy. Just seems we have very different standards for evaluating the merits of a constitutional challenge.
Comment by B. Daniel Blatt — August 3, 2010 @ 1:07 am - August 3, 2010