I think the article 2, section 8 makes pretty clear that Congress has authority to set standards that are beyond judicial review.

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.

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.

[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.

[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.]

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.

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.

“[J]judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged. As previously noted [...] deference does not mean abdication.”

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.

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

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.

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.