Skip to comments.Hopey changey unconstitutional-y (Does a judge have the authority to ban 'Don't Ask Don't Tell'?)
Posted on 10/13/2010 7:18:41 AM PDT by SeekAndFind
The enthusiastic Virginia Phillips, US District Court judge in Riverside, California, yesterday enjoined the Department of Defense to cease enforcing Dont Ask, Dont Tell (DADT) forthwith. The US Justice Department had appealed her September ruling that the law is unconstitutional, but Phillips issued her injunction pending higher court action.
Its not clear that, as a federal district judge, she even has the authority to do this. The whole case, which was brought originally by the Log Cabin Republicans, has reeked of bad-law exceptionalism. What standing the LCR had to bring the suit in the first place is a very good question. The idea that it is a party injured by DADT is not one that would necessarily hold up in cases brought under other aspects of law. Phillips is out on a limb with the ruling against a law passed by Congress; in no case should a lower-level district judge issue the final decision on the constitutionality of a federal law. Americans have every right to expect that the weight of long precedent will preempt this decisions practical effect until it has gone through the appeals process.
Phillips is also exceeding her authority in issuing a global injunction to the military. Effectively, a district court judge cant enforce an injunction on the whole Department of Defense. Precedent and tradition aside, there is no means of doing so. The district court judge in Riverside cant order a US Marshall to somehow enforce this ruling in Crystal City. Its a form of judicial shenanigans to issue an injunction under these conditions.
Phillips is taking judicial activism to its irresponsible extreme, and she needs to be slapped down by the check of the executive branchs authority. The Obama Justice Department appealed her ruling last month precisely because it doesnt want to be ordered around by the judiciary, even in cases on which it agrees with a particular judge in substance. What it does next will be even more important. Frankly, this is a rare case in which Obama should say he does not recognize the judges authority to do what she has done, and he will not enforce her inappropriate injunction.
He should take the responsibility for this himself. In this case, Congress would and should back him up. A Congressional review of Ms. Phillips judicial record is in order. Meanwhile, the Justice Department should appeal her September ruling with all the promptness it can muster, rather than letting this situation stew unadjusted any longer than necessary. It has tremendous meaning for the import of law that a federal judge has done this, and what the executive branch does about it next is equally significant. No law that we count on is safe, if the Obama Justice Department just lets this one go.
We can hope that the self-interest of Obamas executive inner circle will induce it to do the right thing. Judge Phillips herself has provoked what must be recognized as a confrontation. If she is allowed, by passive default, to reach outside the scope of her authority in this manner, the phrase due process of law will no longer have any meaning. If DADT is deemed an issue of constitutionality well, we have a due process of law for that, and its called the appeals process. The executive branch is the one we have to rely on in this case to ensure that the process is observed. And if DADT is perfectly constitutional, and therefore a matter of legislation by Congress, well, due process of law will establish that, and Congress is the place for partisans to focus their lobbying efforts.
In a way, its good that Phillips partisan reach has so egregiously exceeded her due-process grasp. If she hadnt issued this inappropriate injunction, the end-run around our government of laws and not of men would not have been quite so obvious. Team Obama could have simply left the appeals process to languish at a snails pace, hoping to avoid decisions and undesired political consequences for as long as possible. But Phillips has forced the confrontation on the executive branch. That may well turn out to have been a tactical error.
We should hope it was, however we feel about DADT. Government by feelings and emotion is the worst sort of tyranny. Government falling apart because one branch is a loose cannon and another is passive and feckless is an equally horrible prospect. This is a shot across the bow, and it cannot stand. If the Obama executive doesnt repudiate it quickly, and on the proper basis, the cost of reversing this precedent will only go up.
You still oppose the Liberal Agenda? And you actually won a court case? Well, there will be appeals, of course. It may be years before anyone can tell if your victory is a victory. Most likely, somewhere along the way, you will lose and that will be that.
You support the Liberal agenda? And you won a court case? Well, that's it. It's settled. Law of the land, now and forever. No need to talk about it any more. We won.
How to judge this? Does Virginia Phillips like carpet?
With judges, why do we need a Congress, President or Constitution?
IF a Federal Judge is allowed to make such decisions...Where does it stop? If Congress declares war and some federal judge doesn’t like it...If the EPA decides to mandate CAFE standards for tanks and some judge finds a low mpg tank in his/her jurisdiction can they make the whole Army switch to Prius tanks?
This is just so far out of line...
If gays want to make change - or anybody - there is a process and it needs to be followed. Otherwise we no longer have the Rule of Law. We have mob rule, we have anarchy, we have tyranny, or something other than the Constitutional Republic our forefathers left us.
It’s time like these when I look at the ‘good behavior’ clause in the constitution and think that judges who do this should be immediately disbarred and removed from their bench. If the President (hahahah) or the Congress want to limit the damage done by the courts, there is the power to disband them, limit their jurisdictions, remove judges and to maintain the sanctity of the Constitution and the Rule of Law. When I see this and I see no action being taken, I see this kind of abnegation of their responsibity as an acceptance of this kind of tyranny.
It cannot be accepted.
If Phillips or any other judge has the "authority" to order action from the Defense Department worldwide, she could for that matter order DOD to cease all military operations in Iraq and Afghanistan because of their status as "undeclared" wars.
US CONSTITUTION SECTION 8 - Powers of Congress:
To make Rules for the Government and Regulation of the land and naval Forces;
Based upon what I have seen in the last 10 years a judge or congressman, senator, president and even the traitors on the USSC CAN do anything they want.
Hell even Pete Stark admitted they can do anything.
We have let the communist progressives take over this country, our media, our universities, our PUBIC** schools without firing a shot.
We have no functioning Constitution as scum of the earth lawyers have decided to rule on case law rather than the original intent. Well if case law was what the founder intended to change the constitution then why the hell did they include the amendment process? I have yet to have ANY commie liberal be able to answer that question.
**(I spell it that way because they are more concerned with sex ed than education)
Judicial tyranny is killing the Republic. I realize that makes liberals dance with joy, but Americans actually prefer our continued existence.
This is UNCONSTITUTIONAL.
ONLY the CONGRESS has the power to quote:
To make Rules for the Government and Regulation of the land and naval Forces;
Per Section 8.....................
In 1995, Phillips became a United States magistrate judge for the Central District of California. On January 26, 1999, Phillips was nominated by President Bill Clinton to be a district judge for the Central District, a seat vacated by William M. Byrne, Jr. She was confirmed by the United States Senate on November 10, 1999, and received her commission on November 15, 1999.
The judicial Power of the United States, shall be vested in one supreme Court,and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive fortheir Services a Compensation which shall not be diminished during their Continuance in Office. I submit that failing to uphold and defend the Consitution falls under "Bad Behavior" mentioned above.
This judge needs to read the Constitution.
The military has always had separate rules.
For example, you have NO FREEDOM OF SPEECH in the military, for obvious reason................
Just because the Founders believed 'All Men are Created equal' doesn't mean they gave the government the authority to keep them that way.
Amen. You are preaching to the choir.
This judge needs to be disbarred for failing to understand her limits of jurisdiction - and so should any judge who should attempt such a thing. That would end this silliness pretty damn sharply.
When people start losing their jobs and can be held accountable for their decisions, that’s when the game-playing stops and that’s when we can tell who the adults are in the room.
It’s amazing what people with no authority say and expect people to buy into it,liberals and law never mix.