Failure to protect

[Wintereis]

No need to apologise, I can argue all day about the constitution of another country and it's gratifying to a newcomer to have someone read my stuff and engage me in debate.

He is legally bound to appeal because the law has not changed, the bill has not passed both houses.
He is obliged to appeal because a district court does not have the authority of the supremes (Stop! in the name of love) who have the ultimate authority to declare something unconstitutional and force a law down. If he doesn't appeal the situation doesn't get resolved, district court ruling notwithstanding. It has to go to the Supreme Court to get the final stamp of unconstitutionality.

Usual caveats, I'm not a lawyer and I'm no stranger to that exquisite sensation of being completely wrong.

Oh my, here is the circus of the American political arena.

No, the President is not legally bound to appeal a federal court decision challenging the constitutionality of any law. A challenge to the constitutionality of a law is the primary concern of the Judiciary branch in the balance of powers. However, anyone can appeal the findings of a ruling to the next court level, including the executive branch.

That the case in question should be appealed to the next level of the federal court system is a given, since the district judge's decision would have had national implications. If DADT is to be overturned by the judiciary, it rightly should be done by the Supreme Court, which requires an appeal.

"The Justice Department will have to defend the law the Administration firmly intends to repeal because, as CNN reports, the President hopes to end the policy with the strength of Congressional backing, and not through the actions of one judge in one jurisdiction. Bottom line is this is a policy that is going to end; it's not whether it will end but the process by which it will end, said White House Press Secretary Robert Gibbs. The courts have demonstrated that time is ticking on the policy of don't ask, don't tell."

Now, the administration's appeal is likely to have a multivalent reasoning functioning behind it. First, the President can claim that he tried to avoid the repeal being enacted by "activist" judges ( a contention held since Brown vs. Board of Education and Roe vs. Wade and perpetuated by Laurence vs. Texas). Secondly, it will slow the process down so that "Don't Ask, Don't Tell" is removed after his second bid for presidency (it will likely cause a right wing back lash against progressive candidates). Three, if the law was overturned by an act of congress rather than the Judiciary, it would be far more difficult to overturn in the future. Fourthly, the President and his party is able to take more credit for the law's repeal by Congress than by the Judiciary (score more points for Democratic candidates from their electoral base in 2016). Timing is everything in politics. Unfortunately, the government (all governments) tend to forget that their game playing has real effects on real people.

[fredv3b]

Many thanks for your informative post, however I one question.

However, anyone can appeal the findings of a ruling to the next court level, including the executive branch.

Anyone? I thought there were rules on who has standing to appeal? Certainly, the attempted appeal against the striking down of Prop. 8 may fail if the appeal court fails to recognise the standing of the would-be appellants.

[Wintereis]

Many thanks for your informative post, however I one question.



Anyone? I thought there were rules on who has standing to appeal? Certainly, the attempted appeal against the striking down of Prop. 8 may fail if the appeal court fails to recognise the standing of the would-be appellants.

Anyone has the right to appeal. The courts, however, do have the say as to whether an appeal is heard and what grounds an appellate hearing is conducted. For instance, most criminal appellate cases do not make it to the supreme court. Yet, a handful do. Probably the most famous case that was allowed to appeal to such a level and was not simply referred back to the lower court decision is Miranda Vs. Arizona. From which we now have, Miranda Rights: "You have the right to remain silent. Anything you say can and will be used against you in a court of law . . . "