Posted by: theoptimisticconservative | October 12, 2010


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.


  1. “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.”

    Federal courts sitting in California hear cases from plaintiffs and defendants from all over the US (and world). They very well have the authority to issue injunctions as far away as Crystal City, and do so all the time. If a US Marshall does not obey that injunction, her or she is violating the court order – essentially breaking the law.

    “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.”

    I’m not sure I follow this. If the losing party has the right to appeal, yet waives that right, I don’t think any judge, liberal or conservative, would say there was a denial of due process.

    Just to be clear, federal district courts issue injunctions all the time. Very often, those injunctions are not appealed, and thus, the district court has the final say. This is not a denial of due process. If you disapprove of this system, then be upset with the Founding Fathers for giving Congress the right to create lower federal courts.

  2. Thomas — that’s fair enough, as far as it goes, but what precedent would you cite as an analogous guide for this case?

    These are valid questions:

    1. What would the Marshall Service do to enforce this injunction? Attempt to enter the Pentagon and detain Robert Gates?

    2. What compels the president to cooperate in that scenario? Precedent in constitutional law is what I’m looking for. Independent of how the president feels about the DADT issue itself, what compels him to accept enforcement of this injunction on one of his departments?

    3. The point at issue here is a policy imposed by Congress, and a judge having declared it unconstitutional. It’s not criminal law enforcement. In a situation of the latter kind, the role of law enforcement and the executive is clear-cut; prosecutorial discretion can be exercised, but there is a massive body of statute and precedent covering what the options are.

    In this particular situation, can you cite the precedent(s) and/or statute(s) that define what it is you think Phillips is trying to order to occur?

    Because it looks like she is expecting to simply be obeyed without any serious means of enforcement. What comes to my mind is the Massachusetts Supreme Court ordering the state legislature to write a same-sex marriage law — an order the legislature chose to act on, but for which the court had no visible means of enforcement.

    For the Obama administration, the bottom-line question must be, What if a district judge enjoins one of their departments against executing OBAMA’s policies? Can Obama afford to set the precedent of cooperating with injunctions in the manner implied by the Phillips ruling? I suspect they see the danger in this very clearly.

    But I am very interested in what you would cite as the precedent or statute obliging the executive to simply comply with this court-ordered reversal of Congressional policy. If the answer is nothing more than that you think DADT is unconstitutional — that answer can apply, and probably will, to the Obamacare legislation, if we base our thinking solely on what the first federal judge in the process says about it.

  3. If I understand you correctly, you wonder where a district judge gets the authority to tell the executive not to enforce a congressional policy. Is that correct?

    If you want precedent, Marbury v. Madison would probably do: “It is emphatically the province and duty of the Judicial Department to say what the law is.” This established judicial review, which basically means the judiciary gets the final say on whether laws are constitutional. If the executive is enforcing a law that is contrary to the constitutional, they are acting unconstitutionally.

    I think you’re right in thinking that if the executive simply did not want to follow the injunction, there would be no one to stop them. After all, the executive has a monopoly on federal force. But this is true of all laws that are deemed unconstitutional. Our current system of separation of powers, based on the executive and legislature respecting judicial review, would crumble if the executive decided not to abide by judicial rulings. America would be a much different place if this were to occur.

    And yes, this holds for Health Care reform as well. If a judge holds the mandate to be unconstitutional, and there is an injunction, Obama MUST abide by it, even if the injunction is made by a district court. Remember, the administration can always ask the Court of Appeals/Supreme Court for a stay of the injunction. It can then appeal the original decision if it so wishes.

  4. Actually, Thomas, you’ve answered a different question. Marbury v. Madison is not on point, because my question — I think clearly — is not about judicial review, it’s about enforcement. Your first objection was that a district court judge can, in fact, send the marshalls to execute an order. And that remains the point at issue, and the one I am asking for precedents for.

    It’s not good enough that a judge can dispatch federal marshalls to detain an individual or put a guard around a private installation and prevent business from being done there. That’s not analogous to issuing an injunction against POLICY enacted by Congress and being observed by a department of the federal executive branch.

    Marbury v. Madison actually offers no clue on this one, since its upshot was the Supreme Court declining to rule that an action under a federal law must be enforced. If SCOTUS had ruled that Marbury’s commission had to be delivered — as opposed to ruling that there was no obligation to deliver it — the famous line “He has made his ruling, now let him enforce it” might have been uttered decades earlier by a diffierent US president.

    In the case itself, the result of judicial review was that NO action was required from anyone. The Judiciary Act under which Marbury’s commission had been written was deemed unenforceable. Jefferson still thought the ruling was a faulty interpretation, but he was not nearly as inclined to fight it as he would have been if the ruling had purported to compel him to take action.

    As far as I know, we have not actually had this confrontation at the federal level: that is, a court ordering the executive to TAKE action, as opposed to releasing it from the obligation to take action. If there is such a precedent, I would be very interested to hear it advanced.

    Courts deeming a law unenforceable is the obvious consequence of Marbury v. Madison, but courts demanding positive action from the executive is not. I don’t see any precedent for this DADT situation that compels action from the executive. A strong case can be made that the true and rightful impact of the decision is that it suggests DADT is unenforceable, and that that in turn could be the basis for a lawsuit brought against the president or SECDEF if they continue to observe DADT.

    But there is a big difference between a law being unenforceable, and the judiciary having the authority to force the executive to take action relative to it. The latter proposition, I don’t see a valid precedent for.

  5. I guess I don’t really see this as the executive being ordered to take action. If anything, it’s the opposite. They’re being ordered NOT to enforce don’t ask don’t tell.

  6. Thomas — again, fair enough, but in practical terms that turns out to be a narrow and abstract view of what will, in fact, most definitely require action. That’s why DOD asked for time to do a study and make proposals for a careful implementation of a different policy.

    The mere absence of action is a meaningless abstraction. It has relevance only in the context of a judicial ruling that something is unenforceable. But administering the Defense Department is not a proposition in which the inertia of unenforceability is intelligible. Hate to keep using the word meaningless, but that’s what it is, outside of judicial categories that are, effectively, abstract, and without utility at the point of practical application.

    The UCMJ, notably, still has the prohibition on sodomy in it. If DADT is unenforceable, then by default, the UCMJ’s punishments apply to servicemembers who “come out.” DOD can’t rewrite the UCMJ, which is written by Congress.

    Phillips’ action was poorly conceived in every aspect.

  7. By action, you mean the DOD would be forced to create a new policy regarding homosexuals in the military?

    I haven’t read the order of injunction (do you have a link?) but I am assuming the judge addressed that issue (probably not to your liking).

    Though you may argue that the judge improperly granted the injunction (without a stay pending appeal), I think it’s a far cry to say her actions were unconstitutional or exceeded her authority as a judge. It might be a different story if she instructed the DOD on what their new policy must be. In that case, you could argue that she was acting in a legislative capacity. However, she did not do this. If Congress so desired, they could instate a new, temporary policy tomorrow. For whatever reasons, Congress has chosen not to do this.

    Do this address your concern?

  8. As to your standing question, I scanned over the opinion and found that the judge used the following standard:

    “To bring suit on behalf of its members, an association must establish the following: ‘(a) [at least one of] its members would otherwise have standing to sue in [his or her] own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’ Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).”

  9. Even IF this low-level, and appointed, judge has jurisdiction (which I firmly believe she does not), the US Marshalls have more important things to do – like staying alive. Their primary function after all is the protection of Federal Judges.
    Although … a few of them showing up at Pendleton while wearing their nifty blue wind breakers would be rather comical, eh?


  10. “Even IF this low-level, and appointed, judge has jurisdiction (which I firmly believe she does not),”

    Just curious, how would a federal judge NOT have the jurisdiction to find a law unconstitutional and order that it not be enforced? If you think this can only be done by an appellate court, it would mean that if a judgement is not appealed, it would have no effect. This can’t be correct.

    “the US Marshalls have more important things to do – like staying alive. Their primary function after all is the protection of Federal Judges.”

    I don’t think the judge ordered US Marshalls to do anything. The author simply used that as an example of how judges lack the practical power to enforce their rulings. This, however, is an issue for ALL courts – they MUST, for the simple reason that they lack a police force or army, rely on the executive to enforce their decisions.

  11. The judge has wildly exceeded her authority by issuing a ridiculously over-broad injunction.
    Whether it can be enforced is not material. It MAY NOT be enforced beyond its application to whatever plaintiffs, in the suit AND in the district, were found to have been harmed.

  12. […] in issuing an actionable order to a department of the federal executive.  As I elaborated in an exchange with a reader at my home blog (The Optimistic Conservative), it’s one thing for a judge to rule something unconstitutional.  […]

  13. […] order to a department of the federal executive.  As I elaborated in an exchange with a reader here, it’s one thing for a judge to rule something unconstitutional.  It’s another for the judge to […]

  14. Sir I really don’t think you understand anything about the law and in these two articles that you have written show that. First of all a federal judge has the right to order Federal marshals anywhere, second federal judges no matter what their level have the authority to strike down congressional laws, federal mandates, and even rule when and if federal law would supersede state law.
    The fact that you don’t understand this is troubling, the fact that your articles are being published as if you were an authority is worse.
    Please go talk to a court official before you dig yourself any deeper in this hole of yours.

    Maligning and slighting members of the government is your right by law but spouting nonsense is your shame.

  15. on a side note have you ever extrapolated on the logic behind DADT? It is essentially saying that gays and lesbians are fully qualified to serve in the military as past history has shown, it also illustrates that the problem is not with the gays and lesbians but with people defending their right to persecute them. These witch hunts that have been going on for decades have to end, we can scarcely spare the manpower and money, and it serves the government, the military and the public no good. Since it is such a waste of money, an obvious abuse of a minority, and a unequal application of law what business does it have being on the books?

  16. Tim — I understand the difficulty of thinking out of the box. But you are in error to seize on my reference to a judge using federal marshalls as evidence that I don’t understand how these things work.

    I think it was clear that I was referring to the impossibility of a judge sending marshalls to enforce a policy injunction on the Department of Defense. If you think a judge COULD do that, using the marshalls or by some other means, please elaborate. The first question is what you think the marshalls would do when they reached the main entrance to the Pentagon and were denied permission by the armed guards to proceed further. A federal marshall can’t just walk into the Pentagon.

    The injunction issued by Judge Phillips in this case is very arguably beyond her constitutional authority, and even beyond her traditional authority. Her office is afforded no means of enforcing the injunction. That makes her action, at the very least, questionable.

    We have let a tradition of judicial activism build that has no basis in the Constitution or the practical provisions for the judicial branch, and as judges get further out on the limb of issuing autocratic orders, we need to review why we’re where we think we are.

  17. Your concept of “thinking outside the box” requires turning the rule of law on it’s ear and restoring the mob rule from the french revolution.
    first of all the officers of the US military are bound by oath and law to enforce the laws of the United states by oath and law. Suggesting that US marshalls would have to enter military facilities is an insult to both them, and the ruling from the judge.
    For your information judges are adjudicators of the law not autocratic it is in fact the opposite of autocratic rule. Autocratic rule is rule by desire, done by unelected, appointed people of the society that make rules and laws on a whim. The judge held a trial ruled from the evidence and backed it up with precedence and findings.
    To you judges seem to be foreign members of society thrust on us by Stalin. I don’t understand how you have missed the last 230 years of history in trying to make your case that judges should simply make findings and those findings should be sent to the legislator for them to think and possible make laws about. If a judge made a ruling in a murder case should they send that to their state legislator to create laws on. Who would enforce those rules? Would you snicker when they sent in police men to arrest people, Talking about how ridiculous they would look trying to arrest drug barons. Your idea of how law flows to the people and is reviewed is strange, sad even. Judicial activism is what the loosing side calls a ruling, specially since you never once talked about the case itself. The law is unethical, unjust, and unjustified. Logic dispels it and justice demands it’s end.
    Address the case on it’s merits not on your prejudice against judges, Judges make rulings, that is the very definition of their title.
    The one point you make is that a lower federal judge making these rulings is with little precedent but not with none. The president would be smart to appeal it to prevent a precedent, little more. Look to precedent, not to emotion, you come off sounding like Absalom trying to woo members of the loosing side.

  18. Tim — a few points. One, it’s an emotional statement to say that the idea of federal marshalls having to go to the Pentagon is an insult to both marshalls and military officers. It certainly isn’t a rational argument. My point remains unrefuted: if the judge wanted to enforce her injunction on DOD, she would have no means of doing it. This stands in contrast to what she does have the means to enforce, such as arrest warrants and private property forfeitures.

    An autocrat is a ruler unfettered by counterchecks. The word comes from the ancient Greek autokrates, or “sovereign.” “Auto” means individual “self,” and the use of the word autocrat signifies rule by an individual, with no systematic checks on it like those wielded by a legislative body with shared powers.

    Because of the problems with human nature, autocracy becomes a bad thing whenever it is tried. But saying “autocrat” isn’t like spitting out “Hitler!” as an epithet. Some autocrats are really, really bad, and others in history have been no worse than the average human, put into a situation with built-in moral hazards.

    All of this is to say that you seem to speak about “autocrats” with a fairy-tale sense of cartoon-character menace, and as if any concern expressed about autocratic trends in public servants is out of bounds and unfair, because the only time you’d say “autocrat” is when you mean “Vlad the Impaler.”

    That’s not the case when I speak of autocrats or autocracy. If I mean Vlad the Impaler, I’ll say so. But it is necessary to public dialogue and human liberty for the people to be able to speak about “autocracy” in careful and explanatory language. That can’t be out of bounds, and it’s what I’m doing here. Where the features of autocracy begin to emerge, it is not out of bounds to identify them.

    If you want to lay out a case why there is no evidence of autocratic features in our judiciary, go ahead. But saying that it’s using mean words to fear that judges may be turning into autocrats isn’t an argument.

  19. I’m only going to bother if you research the word “adjudicator” with the same fervor. Seriously you have missed the point of the judiciary branch completely. I don’t mean to be trite, far from it, YOU used the word “autocratic” like an epitaph. You conflated rule of law with rule by decree, and you besmirched a simple judge for doing her duty in the face of an unconstitutional law passed by congress.
    You seem like a nice enough person and open for reason but many who posted have broached the same point. You seem to have no idea of the reason for the judiciary branch and their check on the Executive and Legislative branches of our government.

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