“Based on this advice from the Department of Defense and Joint Chiefs of Staff, and after consulting with the Department of Justice about the legal effect of that advice, the President concluded that the Dornan Amendment is unconstitutional. It arbitrarily discriminates and violates all notions of equal protection. Again, at the direction of the President, the Attorney General and the Department of Justice will decline to defend this provision in court. If the Congress chooses to defend this treatment of men and women in the military, it may do so. But this administration will not.” – White House Counsel Jack Quinn, 1996, in transcript quoted in full below.
[UPDATE: I've just posted a DOD memo from 1996, below, confirming that the Defense Department was on board with not appealing these cases.]
I keep writing posts saying “this is huge,” and once again, it is.
I’ve just been sent a White House transcript from 1996 showing the Clinton administration, explaining in detail, how it was not going to defend in court any cases kicking HIV+ service members out of the military because it believed the law requiring such discharges to be unconstitutional.
This is exactly what we have been arguing for a year and a half, and what the Obama administration and its apologists have been denying: The President has the power to not appeal a case if he so chooses. We were told that simply wasn’t an option, we were told that even if it were an option it certainly wouldn’t apply to a case involving gays being kicked out of the military, and we were told that all hell would break loose if it ever happened, and now we find out that it didn’t only happen, it happened on a case dealing with kicking gays (let’s face it, back then HIV+ was code for “gay”) out of the military, and all hell didn’t break loose, a later Republican president didn’t retaliate, and locusts didn’t descend from on high.
Former Clinton administration Solicitor General Walter Dellinger makes this same argument in today’s Washington Post:
The Justice Department is generally required to uphold existing law and is expected to appeal rulings even when the president might agree with them. But Walter Dellinger, who was solicitor general in the Clinton administration, said an appeal could make clear that the president believes the law is unconstitutional, an approach President Bill Clinton took in 1996 concerning a law that would have required the discharge of HIV-positive service members from the military.
“I think this is the answer,” Dellinger said, noting that it would be politically untenable to allow a single district judge to set law for the country in a case that the Supreme Court has not heard. “Let the courts decide, but tell them what you think.”
Richard Socarides, a New York attorney and former Clinton White House adviser on gay issues, agrees that this solution gives Obama the out he’s been looking for. Richard told me today:
The suggestion by former Solicitor General Walter Dellinger in this morning’s Washington Post is to “appeal” the order but tell the appellate court that the government agrees with the lower court’s reasoning and decision: The law is unconstitutional and should not be enforced. It’s a great solution because it gets the right result — a swift end to the ban — and puts the President where he says he wants to be, both politically and legally: For equal rights and for the orderly transition Secretary Gates wants. Plus, he no longer would be defending the indefensible — a policy that is morally unjust, constitutionally infirm, and one not in our national security interest.
A DOD memo at the time confirms the administration’s policy – that DOD was on board with – to not appeal these cases.
Dod Hiv Memo Final http://d1.scribdassets.com/ScribdViewer.swf
Now, the Clinton administration did not believe that they had the authority to simply ignore the law and stop the HIV+ discharges themselves. They believed that the Supreme Court had to rule against the law before they could stop enforcing the law, as compared to defending it in court. But as we’ve pointed out before, the Obama administration has routinely ignored the enforcement of laws with which it doesn’t agree, so that argument is irrelevant – Obama is already picking and choosing what laws he enforces, why don’t anti-gay laws meet his test?
I’m going to post the entire transcript from the Clinton White House. It’s fascinating. This proves beyond a shadow of a doubt that President Obama has a choice, he doesn’t have to appeal a law kicking gays out of the military. There is legal and political precedent. It’s only a matter of whether he has the courage to do so.
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release February 9, 1996
BY COUNSEL TO THE PRESIDENT JACK QUINN
AND ASSISTANT ATTORNEY GENERAL WALTER DELLINGER
The Briefing Room
1:41 P.M. EST
MR. MCCURRY: Good afternoon, everyone. I apologize for the delay, but I wanted to be in a position to report to you on several decisions the President has just taken.
As you know, the President is expected to render final judgment tomorrow on the FY 1996 Defense Authorization bill. More on that subject — much more later. But there was a provision of that bill that was of very great concern to the administration. The President ‘s just made decisions concerning the legality of that provision; also signed a directive related to how the Executive Branch will cope with the consequences of that provision. What I’d like to do is ask legal counsel Jack Quinn to talk about the decisions the President has just taken. With him is Assistant Attorney General Walter Dellinger. And it is a great honor to turn the podium over to my colleague, Jack.
MR. QUINN: Thank you, Michael.
Thank you and good afternoon. As Mike indicated, we anticipate that tomorrow the President will sign the Department of Defense Authorization bill. As you also know, the President’s indicated previously that there’s a provision in that bill that he finds completely abhorrent and offensive — the Dornan Amendment, which would require the Armed Forces to toss out of the military everyone who is HIV positive, no matter what the cause of that affliction, and despite the fact that these people are physically and medically able to perform their military duties.
This provision of the bill, in the President’s judgment, is mean-spirited and serves no purpose other than to punish people who deserve this government’s help, not its hatred.
The President’s response to this provision is three parts. First, we will vigorously support the Kennedy-Cohen legislation which we anticipate will soon be introduced to repeal the Dornan Amendment. The President calls upon Congress to act swiftly on this legislation and pass it.
The second, the President has determined that this provision is unconstitutional. He’s, therefore, directed the Attorney General not to defend it in court. The
President has been informed in this regard by the Department of Defense that in its judgment the Dornan Amendment serves no legitimate military purpose; that it is arbitrary, unwarranted, and unwise.
If I may, I’d like to read a portion of the joint statement which the President received on this recently from Secretary Perry and Chairman of the Joint Chiefs Shalikashvili. It reads in pertinent part as follows:
“To discharge all of these service members arbitrarily, as Section 567 mandates, would be both unwarranted and unwise. Section 567 is unnecessary as a matter of sound military policy because there is already in place a physical evaluation system to determine the fitness for duty of HIV positive personnel. Discharging service members deemed fit for duty would waste the government’s investment in the training of these individuals and be disruptive to the military programs in which they play an integral role.
“This provision violates a standard traditionally used by the services for retention and, thus, undermines a fair policy of evaluating retention on medical and service issues on an individual basis.
Based on this advice from the Department of Defense and Joint Chiefs of Staff, and after consulting with the Department of Justice about the legal effect of that advice, the President concluded that the Dornan Amendment is unconstitutional. It arbitrarily discriminates and violates all notions of equal protection. Again, at the direction of the President, the Attorney General and the Department of Justice will decline to defend this provision in court. If the Congress chooses to defend this treatment of men and women in the military, it may do so. But this administration will not.
Finally, we hope that no service member will be discharged under this provision if Congress does what it should and repeals it. But in case that does not happen quickly enough, the President is directing the Departments of Defense and Veterans Affairs, as well as the Department of Transportation, which is responsible for the Coast Guard, to take all necessary steps to ensure that separated service members and their families will get the full measure of benefits that they should, including disability retirement pay, health coverage for their families, and transition benefits such as job training.
We’ll be happy to take questions, but I’d like to invite Assistant Attorney General Dellinger to add to my statement.
MR. DELLINGER: We advised the President that this provision, which discriminates against a group of healthy and productive members of the Armed Services, would be constitutional only if it serves a legitimate governmental purpose. After consulting with Secretary Perry and the Joint Chiefs, the President concluded that the provision does not serve any valid military or other purpose. Based on the Pentagon’s military conclusion, and after consulting with the Department of Justice about the legal effect of those conclusions, the President appropriately determined that the provision is unconstitutional and that the Department of Justice should not defends its constitutionality in any litigation.
We’d be happy to answer questions.
MR. QUINN: May I just add — Mike reminds me that copies of the statement by Secretary Perry and General Shalikashvili, as well as the directive I alluded to, will be available to you in a few minutes.
Q Did the President have the opportunity to tell the Defense Department not to enforce the law if he finds it unconstitutional?
MR. QUINN: We discussed that matter. I’m going to ask Walter to elaborate on it. There are ample reasons why we’re not in a position to direct the Secretary of Defense not to enforce it. What it boils down to, frankly, is that we don’t have the benefit of a prior judicial determination to the effect that this provision is unconstitutional, and in circumstances where you don’t have the benefit of such a prior judicial holding, it’s appropriate and necessary to enforce it. Among other things, by setting in motion enforcement of this policy, that is how we will get a case moving, the ultimate result of which, of course, we believe firmly will be for the courts to strike this down as unconstitutional.
Q Will that be tomorrow, immediately after –
MR. DELLINGER: Let me add one point to that, Ms. Thomas. When the President’s obligation to execute laws enacted by Congress is in tension with his responsibility to act in accordance with the Constitution, questions arise that really go to the very heart of the system. And the President can decline to comply with the law, in our view, only where there is a judgment that the Supreme Court has resolved the issue. And here the courts have not had an opportunity to resolve it, and the action the President is taking, if the leadership of the House and Senate choose to defend this provision, will ensure that the courts are presented with a full range of argument in making their determination.
Q How long will that take?
Q Is there a particular case you will rely on in your judgment that this is unconstitutional, or is it just some reading you’re making of the Constitution as written?
MR. QUINN: We are going to rely upon the judgment that the President has made in consultation with the Joint Chiefs and the Secretary of Defense that this provision serves no valid military purpose. And if that is the case and that is their determination, we’ll present that determination. That is the basis of the President’s decision that the Department will not defend the constitutionality of this provision.
Q That phraseology itself suggests that there must be some body of case law that derives from this that you would cite as an example.
MR. QUINN: In cases like this where you have a discrimination worked on the face of a statute, the question the courts ask is, is there a rational basis for this discrimination? Does it serve some valid, legitimate, rational government objective? The people to whom that question is properly put by the President are the Secretary of Defense and the Chamber of the Joint Chiefs. They’ve indicated to the President that, in fact, no, this provision does not pass that test. It does not serve a valid military purpose, and, in fact, according the statement I just read you, it is detrimental to the military mission.
Q There must be some cases where that’s been found an applicable standard, though. There must be –
MR. QUINN: There are a ton of cases, yes. There are a ton of cases, absolutely. Absolutely.
Q Jack, you mentioned that the — if the law goes into effect, that the discharged members will receive a full measure of benefits. Would they receive benefits above and beyond what any honorably discharged member of the service –
MR. QUINN: Yes. Here’s what we’re trying to do with this directive. What we want to do, what the President is determined to do with this directive is to make sure that in the unhappy event that the court doesn’t quickly enough strike down this provision and some of these people are discharged, that they would get the full measure of benefits that they would get if they were retired for medical reasons.
Now, the directive, you’ll see, asks the affected departments to flesh that out. But, again, we’re talking about disability retirement. We’re talking about the provision of health insurance for families and making transition benefits available. None of those things will now be available in the absence of this directive. The President is determined to make sure we do everything we can to soften any blow if we’re unsuccessful in warding off that blow.
Q — definitely will receive medical –
MR. QUINN: I’m not an expert on — the answer is yes. I’m advised the answer is yes.
Q Jack, is there any precedence — do you know of a precedence for a President refusing to enforce a — to defend a law?
MR. QUINN: Yes. Yes, there’s ample precedent for President
s refusing to defend enactments of the Congress in court. President Roosevelt — Franklin Roosevelt — did this in what at the time was a well-publicized matter, but there have been many other occasions. I’ll let Walter elaborate on that.
MR. DELLINGER: Let me give you just one example. In 1943, President Roosevelt signed the Urgent Efficiency Appropriation Act notwithstanding his reluctance because of a provision that in his view violated the Constitution by depriving named individuals who were singled out by Congress of the right to ever receive any pay from their government jobs. The President directed the Attorney General not to defend the constitutionality of the provision. The Senate, in fact, defended in the Court of Claims through counsel, and the court ruled in United States versus Lovett that the President was correct in his conclusion and held that provision of the Urgent Efficiency Appropriations Act unconstitutional.
Q So what you’re trying to do is you’re looking for a case? It sounds as though what you’re doing is you’re seeking a case as soon as you can –
MR. QUINN: Well, it is as sure as the sun will come up tomorrow that a lawsuit will be filed the moment that this provision is put into effect. We don’t have to seek one out, one will be filed.
Q What will be the mechanics, the legal mechanics of that at that point? Is the idea that if the administration doesn’t defend the constitutionality of this in court that in essence you’re –
MR. QUINN: The Attorney General — my expectation is that the Attorney General, having been directed by the President not to defend this in court, will notify the congressional leadership and indicate to the congressional leadership that if it chooses to defend this enactment it may do so, but that this administration will not. I can’t answer — I’m sorry?
Q Any indications of what the leadership will do? Have you talked to them about it, working with them on the repeal, or whatever?
MR. QUINN: No. I have no idea –
Q Do you know what their –
MR. QUINN: I do not. I do not. I look forward to seeing how they will respond.
Q Maybe I just didn’t notice, but we did not see a lot of administration public complaint about this provision when the bill was working its way through Congress, nor, as far as I know, was it a veto element in the — or was it? I mean, I don’t — what’s the history of you trying to get this done before it happened?
MR. QUINN: I’m advised that our opposition to this provision was stated clearly in our statement of administration policy on the bill.
Q But not as — you said then you wouldn’t veto the bill over it, right?
MR. QUINN: The President is not vetoing the bill.
Q On its effect on the military, the argument you’re using that it’s arbitrary, the congressional Republicans who sponsored this say that the current policy does affect military readiness because people who test positive for HIV are given shore leave while others have to go overseas or on ship, and that they right now get preferential treatment. What is your response to that?
MR. QUINN: Well, I can’t rely on Congressman Dornan to give us advice about military readiness. We have to rely on General Shalikashvili and Secretary Perry, and they conclude to the contrary. And, frankly, I’m satisfied with that, as is the President.
Q — to knock down the Dornan provision? Aside from taking a hands off position, would the administration file a — brief in support of the plaintiff? Would you join as a party in court, or would you just not appear at all?
MR. QUINN: We would certainly consider that. I’m not prepared today to give you a definitive answer to that, but nor will I rule it out.
Q As a practical matter, how many people are affected by this?
MR. QUINN: About a thousand. About a thousand.
Q If the court — successful, would you make any promises to them that they would be rehired or accepted back into the military?
MR. QUINN: I’m sorry — if the –
Q If you have to start discharging these people, then six months later, nine months later you win in court — or, I’m sorry, plaintiff wins in court, are you going to make any kind of promises these people will be able to go back into the military?
MR. QUINN: I’m sure that we will do everything we can not only to keep these people in the military, but to reinstatement in the event that separation procedures are started.
MR. DELLINGER: Let me make one thing — the statute provides that separation can take place at a period up to six months. It says, as soon as practicable, but not later than the last day of the six months. So there is a six-month period of separation. So that there is not a requirement under the law that separation be immediate, given the practicalities of the military determination. So that will not take place.
MR. QUINN: Let me add to this point that no one will be separated until the last possible moment.
Q But could you explain — you’ll have a thousand people who will lose their jobs because of a provision that the President believes is unconstitutional. Why did he, therefore, decide to sign it?
MR. QUINN: There are ample good reasons why the President is in a position that he has to sign this bill in order –we are going to do more on that, I guess, at a 2:00 p.m. briefing, laying out in some detail the many parts of this bill that really do impel the President to sign it.
Q Jack, does the consideration for dismissal begin immediately? And as that consideration is underway, there’s this six-month lag time — is that what you’re telling us?
MR. QUINN: I’m telling you that the — I hope this answers the question — that the Secretary will undertake to set in motion procedures to effectuate this provision.
MR. QUINN: Immediately. That, we believe, will create the condition under which a lawsuit might appropriately be brought on behalf of the potentially affected military men and women.
Q So a lawsuit could be brought immediately if someone was under consideration for dismissal?
MR. QUINN: Yes.
Q And do you already have somebody picked out to do that?
MR. QUINN: No. We don’t represent the plaintiffs in those cases.
Q How long would it take, ballpark, for it to work its way up through to the Supreme Court before we get an answer?
MR. QUINN: I don’t know. It could take a good deal longer than six months before you get a final resolution of this. But bear in mind that that does not mean that in the meanwhile there will necessarily be a separation of these people from the military. It is entirely possible that a court will enjoin the separation of these people from the military pending final resolution.
What happens in a case like this is that a court will have to consider at some point early in the process the question whether an injunction should issue. Whether it should issue or not turns on the relative burdens that would be imposed on either side by granting or not granting, and on the important question of likelihood of success on the merits eventually. In our judgment — and I think our having taken the position we do contributes to this outcome — the likelihood is that a court will see at an early point in time that the plaintiffs in these cases have a very high likelihood of success on the merits. That being the case, combined with the fact that their discharge would work a real injustice and burden on them, it well may be that any such separations will be enjoined. But we’ll just have to see how that plays out.
Q Jack, there have been cases where military people were discharged from the service as incapable of performing service, highly decorated people, because war wounds created a disability. I think, if not mistaken, one case in point was Jim Webb who went on to become Navy Secretary. How are people who
are separated because war wounds disabled them different? I think you’re establishing a double standard here.
MR. QUINN: Not at all. Not at all. They, in fact — on the contrary. It is the judgment of General Shalikashvili and Secretary Perry that each and every one of these people is able to perform his or her military duty.
Q What is the current policy for someone who is not — who is diagnosed with AIDS as opposed to HIV-positive?
MR. QUINN: If they meet the standards, if a person has AIDS and meets the standard of medical disability for a separation, they are separated on the same basis of everyone else who meets the — I believe it’s a 30-percent disability standard or some other disability standard. It’s the same standard regardless of the condition.
The group of people that are affected by this law are people who are not medically disabled; that is, they’re healthy individuals performing their tasks. Anyone who is medically disabled, whatever the cost, is transferred on the same basis, whether it is AIDS — these are people who have at this point — it includes people who are only tested as being positive for the HIV virus.
Q And diagnosis of AIDS renders them medically disabled?
MR. DELLINGER: It subjects them to the same standards of disability, depending on what the actual disability is. All conditions, what the military looks to in those instances of discharge, is what someone’s condition is, regardless of its cause.
Q What’s the practice with people with AIDS? Are they discharged or not?
MR. DELLINGER: I assume they’re treated under the same medical disability as others. But that’s a question for the Defense Department.
Q You keep saying that, but you can’t — that doesn’t answer the question. Do you know what happens to them?
MR. DELLINGER: Mike will check it for you. I’m sure that’s right.
THE PRESS: Thank you.
END 2:03 P.M. EST