The Department of Justice has asked Judge Phillips to issue a stay of her DADT injunction and indicated that it will appeal the decision. This was not unexpected, but it is certainly disappointing. Here’s an excerpt from the introduction:
Defendants request that the Court issue an order to stay pending appeal of its Order, dated October 12, 2010 (Doc. 252), permanently enjoining enforcement of the “Don’t Ask, Don’t Tell” (DADT) statute, 10 U.S.C. § 654, and implementing regulations.1 Defendants also request that the Court issue an immediate administrative stay of its October 12, 2010 Order to allow time for the orderly litigation of that request for a stay pending appeal both before this Court and, if this Court were to deny the stay request, before the Court of Appeals. At a minimum, if this Court declines to enter a stay pending appeal or any administrative stay to allow its own consideration of the request, defendants request that the Court enter an immediate administrative stay to afford time for filing a request for a stay pending appeal in the Court of Appeals and an opportunity for that Court to consider that request in a meaningful and orderly manner. Given the urgency and gravity of the issues, defendants respectfully request that the Court rule on this ex parte application no later than noon PDT on Monday, October 18, 2010. If an administrative stay is not entered by that time, defendants intend to seek a stay pending appeal from the Court of Appeals and will request an immediate administrative stay from that Court to allow the orderly litigation of the stay request before that Court.
And, DOJ invoked the Pentagon Working Group as a reason for needing the delay:
In support of the President’s decision to seek a congressional repeal of the law, and as directed by the Secretary of Defense, the Department of Defense has established a high-level Working Group that is currently conducting a comprehensive review of the statute and how best to implement a change in policy in a prudent manner. The Working Group is nearing completion of its report to the Secretary, which is due on December 1. The immediate implementation of the injunction would disrupt this review and frustrate the Secretary’s ability to recommend and implement policies that would ensure that any repeal of DADT does not irreparably harm the government’s critical interests in military readiness, combat effectiveness, unit cohesion, morale, good order, discipline, and recruiting and retention of the Armed Forces.
In the first sentence above, you’ll notice a footnote. This is what it states:
1 As the President has stated previously, the Administration does not support the DADT statute as a matter of policy and strongly supports its repeal. However, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here.
Got that? Remember, DOJ does not have to appeal this decision. But it is going to do just that.
The Courage Campaign posted the DOJ application for the Emergency Stay here.
From here, Judge Phillips will probably issue her decision in the next couple days. She could order a stay pending the appeal — or not. She could do any number of things, including denying DOJ’s application. Whatever she does will lead to DOJ’s next step. This could mean that DOJ may have to ask the Ninth Circuit for a stay, too. What is clear is that the DOJ has every intention of appealing this ruling and dragging out this process. DOJ has 60 days to file its notice of appeal.
We’ll have more on this, as you can imagine.