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Administration Pushing for Supreme Court Intervention in DADT?

By Robyn Hagan Cain on July 15, 2011 4:02 PM

The Department of Justice filed an emergency motion on July 14 asking the Ninth Circuit Court of Appeals to reconsider a California district court’s worldwide injunction against the enforcement of the “don’t ask, don’t tell” policy. The motion accompanied the Obama Administration’s response to the Ninth Circuit’s July 11 order asking whether the government would defend the constitutionality of the policy; the administration claims that the Ninth Circuit is incorrect in concluding that the government must choose whether it will defend the “don’t ask, don’t tell” policy because the policy was already repealed by Congress.

Congress passed a bill repealing the eighteen-year-old “don’t ask, don’t tell” policy in December last year, but the repeal does not take effect until 60 days after the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certify that the military is ready to handle the change. On July 6, the Ninth Circuit ordered the military to stop enforcement of the policy.

The Obama Administration, which publicly supports the Congressional repeal of "don't ask, don't tell" has been criticized for delaying implementation of the bill. The administration and Pentagon officials counter that an immediate change in the policy would cause problems in the military during a time of war, CNN reports. In its emergency motion, the administration claims that military personnel need to understand that the transition is "the product of the military's own, informed choices (and reflecting the choices of the democratically accountable Branches of government), rather than the product of a judicial order."

The administration may ask the Supreme Court to reinstate "don't ask, don't tell" should the Ninth Circuit refuse to do so. Though the Supreme Court is currently adjourned for summer recess, SCOTUSblog notes that it could still intervene in the case. It would not be the first time that a party to the case asked the high court to get involved; the Supreme Court previously denied the Log Cabin Republicans' application to vacate the Ninth Circuit's stay on the policy in November.

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