Saturday, February 26, 2011

Legal Commentary: DOMA cont'd... an DADT

While suggesting that Congress had the authority to pass the ban, when it did so in 1993, the new filing argued that, now, the courts — if they do anything at all — should conclude that Congress had the constitutional authority to give the Pentagon some time to achieve actual repeal of the policy under the law passed in December.

Under one scenario that the government suggested might come about, and one that it apparently would consider acceptable, the Ninth Circuit could go ahead and rule that the ban was unconstitutional, but then “adopt some form of…orderly process as a remedy” — presumably, matching the timetable that the new repeal law provides for the military to carry out the repeal.
It doesn't change much, but it's interesting to watch the Obama Administration simultaneously lobby for big changes in the Legislature while going out of their way to make sure those changes don't happen in the courts.