The Obama administration recently decided to seek a stay of the injunction that prohibited enforcement of the Don't Ask, Don't Tell policy in the Log Cabin Republican lawsuit and (for now) to contest the ruling on appeal. There has been a vigorous discussion about that decision, much of it focused on whether the administration was obligated to defend this odious statute, even while they are working hard to repeal it, and what broader implications a decision not to appeal might have had for the rule of law in future cases.

My purpose in this essay is to clarify what is at stake in this discussion -- in other words, to make clear precisely what options we are debating. The back and forth over the administration's obligation to pursue this appeal has often proceeded on the implicit assumption that, if the government did not appeal, then DADT would be permanently over, a thing of the past. The assumption, in other words, is that we should be measuring any political, legal or institutional costs associated with the government not appealing against the benefit of eradicating DADT once and for all.

That assumption is incorrect. In fact, if the Obama administration were to decline to appeal this injunction, a hostile administration could come back at a later time and ask the federal courts to lift the district court's injunction and allow the DADT statute to go back into effect.

HOW INJUNCTIONS WORK

This is a complicated issue, relating to procedure in federal court and how injunctions work. Here is my best pass at a concise explanation.

When a federal court finds a federal statute to be in violation of the Constitution, as Judge Phillips did in the LCR case, we often speak of the Court "striking down" that federal statute, as if the court's order removes it from the books altogether. That is not, in fact, what happens. Federal courts don't have the power either to enact or to repeal federal statutes. What they have the power to do is declare federal statutes unconstitutional and issue orders prohibiting their enforcement.

When a court issues a decision like that, it has three potential types of impact.

First, the court's decision binds the parties to the lawsuit itself. In the LCR suit, the government is now bound to a ruling that the DADT statute cannot be enforced against LCR's members.

Second, the court's decision may set precedent that other courts must follow, so that if the same issue ever comes up in a subsequent lawsuit the earlier opinion will control the outcome. Federal district courts do not have the power to set binding precedent in this way -- only federal appeals courts and the Supreme Court can do so.

And third, the court may issue an injunction to carry into effect its ruling, requiring the losing party to take or refrain from taking certain actions. In this case, the federal district court issued a worldwide injunction prohibiting the government from enforcing DADT anywhere, against anyone.

The only part of the district court's LCR decision that affects people other than LCR and its members is the court's worldwide injunction. LCR did not bring a class action lawsuit that purported to include past, current or future members of the military as parties before the court -- it was only litigating on behalf of its own members. And, as mentioned above, the district court cannot establish binding legal precedent for any other courts, not even other district courts.

It is only because the court issued such a broad injunction that the ruling applies to anyone other than LCR. As a point of comparison, think of the case of Major Margaret Witt, who recently secured a ruling from a federal district court in Washington ordering that she be reinstated to the military. Her victory resulted in an injunction that applies only to her.

ENFORCING THE INJUNCTION

Even when a defendant decides not to appeal a ruling in a case like this, the federal district court needs to retain some kind of ongoing jurisdiction over the case in order for the injunction to continue in effect. Otherwise, for example, there would be no one to turn to if a party thinks that the injunction is not being complied with and a contempt citation is necessary.

Thus, the observation that frequently gets made that there cannot be any appeal once the time for requesting the appeal expires -- in other words, that a decision not to appeal a ruling is permanent after the clock runs out -- is not the whole story in the case of an ongoing injunction prohibiting enforcement of a federal statute. Rather, even when a party to a lawsuit does not appeal the original ruling, the party can still come back to the court and ask it to modify or end the injunction on the grounds that enforcement of the order is no longer equitable or appropriate.

"FACIAL" VS. "AS-APPLIED" CHALLENGES

Some commentators have pointed out that LCR brought a facial challenge to DADT, rather than an as-applied challenge. That fact is indeed important, but it does not change the impact of this ruling at the district court level. A facial challenge argues that the statute cannot be applied constitutionally to anyone, while an as-applied challenge argues only that the statute cannot be applied constitutionally to someone in the plaintiff's specific circumstances. (Once again, compare the recent victory of Major Margaret Witt, who won an as-applied challenge to the policy.) A victory in a facial challenge can thus set a precedent that renders the statute completely unenforceable. That precedent can then be invoked by future litigants, even if they were no part of the original lawsuit.

But, as noted above, a district court doesn't have the power to establish binding legal precedent for other courts, even within its own district. The significance of a facial challenge vs. an as-applied challenge comes into play primarily at the Court of Appeals or Supreme Court stage. When one of those courts grants a party a victory in a facial challenge to a statute, it establishes a legal principle that applies as precedent to everyone else in the Circuit (in the case of the Court of Appeals) or in the country (in the case of the Supreme Court). When the case is at the district court level, however, the difference between winning on a facial challenge and winning on an as-applied challenge is less significant.

All of this is separate from the question of the type of injunction that the district court enters to enforce its order. When a court issues an injunction, it is crafting a remedy to carry into effect the rights of the parties that are before it. The court has very broad discretion in determining what type of remedy is appropriate. But its task is still to carry into effect the rights of the parties that are before it.

I assume that the district court in this case felt justified in issuing a worldwide injunction because, having ruled on a facial constitutional challenge, it had concluded that the DADT statute could not be applied constitutionally to anyone, anywhere. But it is still the case that the district court's task was to issue an order that would enforce the rights of the parties before the court -- here, LCR and its members. As I understand it, that's part of why the government took the view that the worldwide injunction was inappropriate -- because, in the government's view, it was an excessively broad and unwarranted way of enforcing the rights of LCR and its members, which was all that was before the court.

WHAT DOES ALL THIS MEAN?

According to my best understanding, here is the bottom line.

Even if the Obama administration were to embrace the LCR ruling and decline to take an appeal -- and even if members of Congress did not step in and continue pressing the appeal, which they could try to do -- the DADT statute would still be on the books. Only a repeal by Congress can change that. The only thing stopping the DADT statute from being enforced would be the court's worldwide injunction.

And if a hostile administration were to come into power in 2013 or 2017, that hostile administration could come to the court and ask it to lift or modify the injunction. If the court refused, a hostile administration could take an appeal from that refusal and ask the Ninth Circuit or the Supreme Court to do so. The original ruling on behalf of LCR and its members might still be permanent. But the worldwide injunction would be vulnerable and probably would not survive, meaning that the DADT statute would go back into effect for everyone else.

This does not resolve the debate over what the Obama administration should have done in this case. Some people might take the view that allowing the injunction to stand right now would make it easier to enact a legislative repeal of DADT, even if the injunction itself is not a permanent solution. I think that the opposite is true -- that allowing the worldwide injunction to stand would make legislative repeal politically impossible in the present moment. There is room for disagreement on that issue.

But the assumption that has informed much of this debate -- that not appealing the LCR ruling would mean that DADT would be permanently gone, once and for all -- is incorrect.



(This essay first appeared on the EqualityGiving website at http://www.equalitygiving.org/DADT-Appeal)

