July 14, 2011
By Adam Bink
Earlier today, the DOJ filed for an emergency stay from the 9th Circuit in the Log Cabin Republicans v. United States case. Last week, a panel from the 9th Circuit ruled that given the approaching full repeal of DADT, and the government’s recent filing in the DOMA case, there was no need for a stay. Today, the DOJ said there was.
The Department of Justice filed a motion in the U.S. Court of Appeals for the Ninth Ciruit in the Log Cabin Republicans v. United States case today, asking the court for “emergency” reconsideration of its July 6 decision to lift the stay of the worldwide injunction of the “Don’t Ask, Don’t Tell” law — a motion that asks for the stay to be put back in place by “close of business” on Friday, July 15.
Additionally, not waiting until its July 21 deadline to respond to a later order from the appellate court, the government submitted a second filing, responding to the Ninth Circuit’s claim that “it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654” — the DADT law. DOJ countered today that “it has fully defended, and continues to defend, the constitutionality of 10 U.S.C. § 654, as it exists following enactment of the Don’t Ask, Don’t Tell Repeal Act of 2010” in a letter that argues that — after the Don’t Ask, Don’t Tell Repeal Act was signed into law — Section 654 became a “transitional provision.”
The government argues that “§ 654 remains in force by operation of § 2(c) of the Repeal Act, which provides that § 654 ‘shall remain in effect until such time that all of the requirements and certifications required by’ the Repeal Act ‘are met.'” Because of this provision in the repeal act, the government argues, “§ 654 is now a transitional provision that remains in force only until the Executive Branch completes the repeal process.”
The chief of staff of the Repeal Implementation Team at the Department of Defense — Marine Corps Major General Steven A. Hummer — detailed, specifically, where the repeal process stands in a declaration submitted with the emergency motion asking for the stay to be reinstated.
Hummer states, “At this time, the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff have not yet certified that repeal is consistent with these standards, though it is anticipated that certification will be presented for their decision in a matter of weeks, by the end of July or early in August. Just last week, the Secretaries of the Military Departments, Chiefs of the Military Services, and Commanders of the Combatant Commands submitted their written advice regarding the status of their preparations for repeal and ability to satisfy the certification standards set by Congress.”
In its request for emergency reconsideration of the decision to lift the stay, DOJ also asks for “a temporary administrative stay of the injunction” while considering the emergency motion. DOJ is asking for quick action on that request. “We respectfully request that the Court act on this request for an administrative stay by the close of business tomorrow, July 15, 2011,” the lawyers wrote to the court.