Don't Ask, Don't Tell fails Senate

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Christcorp - The President is COMMANDER IN CHIEF He is the head of the military. AND ask any one and they will tell you that Congress controls the funding, therefore they control the MILITARY. My point is this, it doesnt matter who made the desicion about starting DADT it still is a military policy on Gays and lesbians. Now your other point. A federal district court DOES ABSOLUTLY have the right to overturn AND see to the elimination of federal laws and policies!!!!!!! Ask any government teacher!!!!!!!!! SHE COULD HAVE VERY WELL SAID THE IRS IS VOID AND UNCONSTITUTIONAL SO DONT PAY YOUR TAXES!!!!

I don't care what the media says, i don't beleive even half of it, but there is always some fact in what they say! They are reporting the news which came from somewhere.

You can not possibly rebutle anything I just said. I believe that your political inclinations are the bases for your frustration and in that case I can't help you but please tell the truth from now on.
 
Christcorp said:
1: It WASN'T the "military's 17-year-old ban on openly gay troops". It was the PRESIDENT and CONGRESSES ban on openly gay troops.
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You're right, the media did mess that up. The military was banning gay soldiers long before the President and Congress got around to it 17 years ago.
 
The way the media is spinning it, they are implying that the military has the authority to simply stop the DADT policy. And that, they do not have. That policy started at the top, and that's where it has to be rescinded. Commanders tomorrow don't just tell all their troops: "if you're gay, you don't have to hide it any longer. You're free to come out". Sorry, but the federal judge doesn't have the power to legislate. And I don't need to talk to a government teacher. I have the luxury of having access to a constitutional lawyer. And we've had this discussion before. The President, with a stroke of a pen, can eliminate the DADT policy. And if S/He doesn't succumb to blackmail from the congress, who indeed does hold the purse strings, then the policy could end tomorrow.

The federal judge can interpret the law, and find it unconstitutional, but it's not just her say so and therefor the law/policy no longer exists. That is why the system has an appeal process in place. So NO, she can't just say, the IRS is unconstitutional, don't pay your taxes. The legislators then has the ball in their court. They can challenge the findings; I.e. take it to appeal; or, change the legislation to amend the unconstitutional section; or allow the entire law/policy to be rescinded. But that is the legislator and executive branches role. The federal court simply gave an interpretation of an existing policy/law.

This DADT policy, which I believe is wrong, should in fact be rescinded by the president. But HE is the one who has to do it. Not some 4 star general or even the secretary of defense. And that IS the truth. And that is my problem with the media. They will have everyone believe that it's the military branches of service, the 4 stars, the base commanders, the secretary of the branches, etc... who decided on the DADT policy. It was federal policy, prior to DADT, that homosexuality was inconsistent with military service, and would not be condoned. The DADT policy was a weak attempt at: "If we pretend it isn't happening, then there's no problem". I can handle a policy of YES or NO, but this "Lets not talk about it and it will go away" is B.S. So, maybe now the real topic will be addressed. And sbbond; while you probably mean well, you don't know me or probably much about me. Don't tell me that my political inclinations have any part in my opinions. You have no idea.
 
While she cannot legislate, she can issue an injunction stopping the enforcement of the law, which is what the media is saying she did. And unless it is appealed, then the injunction will stand.

It's a lot like injunctions against street gangs that take away, basically, the rights of the members of said gangs.
 
As people are mentioning, but aren't understanding, the appeal process is part of the process. Thank god for such a process. Just because she gave her interpretation and ruling, doesn't mean that gays can openly enter the military tomorrow.
 
Obama will now have to decide to either fulfill his promise to the homosexual community by repealing DADT or he is going to take a lot of political heat. The survey is due in December, so if you do the mathematical equation of 60 days, he really doesn't have political coverage like he did earlier because that will place him in the time frame of the survey results.

This will be interesting to say the least.
 
Christcorp said:
As people are mentioning, but aren't understanding, the appeal process is part of the process. Thank god for such a process. Just because she gave her interpretation and ruling, doesn't mean that gays can openly enter the military tomorrow.
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So you disapprove of our system of Checks and Balances as defined in the US Constitution?

You disagree with the Judicial Branch having the power to review the laws passed by the Congress?

Who would you rather see have the power to review the laws of the Legislative Branch other than the Judicial Branch?
 
It won't stand. The President and Congress will be forced to do what they said they would do or will have to explain why they didn't. A Courts will not be their cop-out.
 
Luigi59 said:
So you disapprove of our system of Checks and Balances as defined in the US Constitution?
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Just a minor point of procedure, but the ability of the Judicial Branch to review laws for constituionality is not technically defined in the specific text of Article III of the U.S. Constitution. The Supreme Court has, however, interpreted their role in this way since 1803 when they issued Marbury vs. Madison.

Regarding another post and the income tax question: The Supreme Court actually did limit the federal government's ability to levy an income tax in the late 19th century. This is the reason we have a 16th Amendment-it rendered that decision moot.
 
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Luigi59 said:
So you disapprove of our system of Checks and Balances as defined in the US Constitution?

You disagree with the Judicial Branch having the power to review the laws passed by the Congress?

Who would you rather see have the power to review the laws of the Legislative Branch other than the Judicial Branch?
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On the contrary. I believe very much in the judicial branch. However, the US Code: TITLE 10 > Subtitle A > PART II > CHAPTER 47 > SUBCHAPTER XII > § 941 Art. 141. states that there's this thing called "United States Court of Appeals for the Armed Forces". And it is establish by Article 1 of the Constitution. Article 1 is quite clear that the congress and president by nature of being the commander in chief in Article 2, has the responsibility to arm, train, discipline, governing, etc... the military. Hence, the reason for the UCMJ. There is a reason for a military judicial system.

Which brings up the argument of; how constitutional then is the UCMJ? If you're saying that the 9th Circuit Court has jurisdiction in decision over the Armed Forces, then S/He has jurisdiction of the UCMJ and it's constitutionality. Even though Article 1 and 2 of the constitution put that jurisdiction on congress and the president. Example: Article 125 of the UCMJ. Sodomy. That must be unconstitutional accordingly. What about Article 117 about provoking speeches and gestures. What about freedom of speech/expression. Is Article 117 unconstitutional?

I am not going to get into a legal debate on a forum where anonymity makes for a difficult discussion; however, when it comes to the military, it's not as simple as saying that a federal district court judge simply overrules military law, the UCMJ (Which is actually part of US Code Title 10), and can instantly call something unconstitutional and no longer enforceable. Especially considering it's the constitution that allows the UCMJ to be written specifically for the military.

The good thing about all this however is not her judgment. (Personally, I believe she is outside of her scope of authority on this). However, it's a good thing, because we have a pretty irresponsible congress. They've been this way for a couple of decades. Maybe now, they'll be forced to confront the issue once and for all. That would be good.
 
CC, the flaw in your argument is that DADT is not military law. It's a federal law.
 
scoutpilot said:
CC, the flaw in your argument is that DADT is not military law. It's a federal law.
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He knew that. Just momentarily confused. From his post yesterday:
Christcorp said:
1: It WASN'T the "military's 17-year-old ban on openly gay troops". It was the PRESIDENT and CONGRESSES ban on openly gay troops.
2: A Federal District Court Judge doesn't have carte-blance over making an enforceable national decision that was put into place by congress.
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scoutpilot said:
CC, the flaw in your argument is that DADT is not military law. It's a federal law.
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But it only applies to the military. A private company can't have such a policy. And being the president and congress, under authority of article 1 and 2 initiated such a law, it will be up to them to rescind it. If they so choose to. Again, there are plenty of military laws/policies/rules that could be considered unconstitutional. But, because the constitution allows for congress and the president to establish a separate set of laws/policies/rules for the military, it could be argued that the DADT policy, by nature that it only applies to the military, in fact is constitutional. It might be a stupid law; not fair; etc... but that doesn't mean it isn't constitutional.

We all know people who break laws, but that doesn't mean the law doesn't exist. If DADT is rescinded; "WHICH IT SHOULD BE"; then does the 9th federal district court expect celibacy among gay service members? Or, do THEY, the 9th Circuit Court, say that the UCMJ Article 125 is "Unconstitutional". If left alone, then the congress, president, and the military would be condoning sodomy and of BREAKING military law. Don't make this into discussing Article 125, sodomy, etc... This is simply a discussion that the federal district court judge doesn't have as much say so in military law/discipline/policies as some may think they do. The constitution is very clear about the separate need for military law and who has the constitutional power to establish such discipline. And it's not the 9th Circuit Court.
 
Christcorp said:
This is simply a discussion that the federal district court judge doesn't have as much say so in military law/discipline/policies as some may think they do. The constitution is very clear about the separate need for military law and who has the constitutional power to establish such discipline. And it's not the 9th Circuit Court.
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You would be incorrect. The Federal Courts have jurisdiction . The UCMJ does not exist in a vacuum, immune from Judicial or Congressional oversight.

Who do think wrote the UCMJ into law? It wasn't the military. It wasn't the president. The UCMJ was written into law by Congress (go back and re-read Article 1 Section 8 of the Constitution again).

Who do you think has the power to declare laws passed by Congress to be unconstitutional? That's right, the Federal Courts.

Your misconceptions about simple 8th grade civics fundamentals are fueling your incorrect assumptions about the separation of powers in the US Govt.
 
If you say so. But I really am wasting my time. I'll let you dormitory lawyers fight it out. But I would highly recommend against advising any military members to take any actions about their sexuality because of what this judge ruled on yesterday. It could turn around and screw them. "No pun intended".
 
So why is everyone getting so excited here?

We all knew that whichever way the decision went, the other side is ultimately going to take it to the Supreme Court.

This is just the undercard to the main event.

Anyone laying odds on how the Supreme Court will split on it?
 
Pima said:
Obama will now have to decide to either fulfill his promise to the homosexual community by repealing DADT or he is going to take a lot of political heat. The survey is due in December, so if you do the mathematical equation of 60 days, he really doesn't have political coverage like he did earlier because that will place him in the time frame of the survey results.

This will be interesting to say the least.
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I also noticed that. How convenient that this injunction, which is only permanent if left un-appealed in the next 60 days, comes just a little less than 60 days before the date the review is supposed to be finish.


As you said, he could refuse to appeal it, and still keep his promise about the review because even after the review there will still be 11 days to appeal if the review shows that repealing DADT would be inadvisable.
 
A couple of points -

The Govt has 30 days to appeal to the Federal Appeals court which is mandated to hear the appeal. After that the case can be presented to the US Supreme Court which is not mandated to hear the appeal. They look at the merits of the case and decide whether or not to take it.

The "Survey" - this has no bearing on the case whatsoever and is not a determining factor, nor was it intended to be. The Survey was implemented to simply survey thoughts and give servicemembers and families an opportunity to express themselves. It's use was intended to be for formulating the transition - should DADT be repealed.

No one in the military should come 'out' while the case is under review or in appeal status. The Govt has 60 days to appeal and those so inclinded should resist asking or telling. There is clearly lots of room for appeal, if the Govt chooses.

I don't *think* the Govt wants to get into appealing a ruling against a law they do not support. Time will tell on this one. Should the Govt choose not to appeal- it is possible that the Govt and Federal Court work together to implement a smooth(er) transition.
 
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