The enthusiastic Virginia Phillips, US District Court judge in Riverside, California, has today enjoined the Department of Defense to cease enforcing “Don’t Ask, Don’t 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.
It’s 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 decision’s 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 can’t 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 can’t order a US Marshall to somehow enforce this ruling in Crystal City. It’s 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 branch’s authority. The Obama Justice Department appealed her ruling last month precisely because it doesn’t 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 judge’s 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 Obama’s 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 it’s 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, it’s good that Phillips’ partisan reach has so egregiously exceeded her due-process grasp. If she hadn’t 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 snail’s 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 doesn’t repudiate it quickly, and on the proper basis, the cost of reversing this precedent will only go up.
Cross-posted at Hot Air.