Friday, April 8, 2011

Palm Center Brief on Judicial Deference

This week the Palm Center (a research organization at the University of California) filed an amicus brief with the Ninth Circuit Court of Appeals in Log Cabin Republicans v. United States, a constitutional challenge to "Don't Ask, Don't Tell." The government appealed a district court ruling invalidating the policy.

The Palm Center brief is the first of its kind, as far as I know: the only brief devoted entirely to the doctrine of judicial deference in military affairs. This is the doctrine the government often relies on to argue that courts should be reluctant to second guess military policies adopted by Congress, the President, or the military, even when those policies raise constitutional concerns. The Palm Center brief takes the position that this doctrine is much more limited in practice than in reputation.

From the brief's conclusion:

"Judicial deference does not bar this Court from assessing the constitutionality of "Don't Ask, Don't Tell" or any conditional plan for its repeal. To grant special deference to the government's desire to extend the life of the policy would violate every controlling principle of the doctrine. Courts should defer only to specific judgments made in individualized circumstances. Courts should defer only when the facts and law underlying the original judgment have not changed. Finally, courts have the weighty obligation to ensure that the doctrine of judicial deference is not used to evade judicial review or to undermine civilian control of the military under the Constitution."

The brief was drafted by NIMJ Advisor Diane Mazur, author of a recent book on civil-military relations from Oxford University Press: A More Perfect Military: How the Constitution Can Make Our Military Stronger.

Readers might wonder why constitutional challenges continue after Congress passed the DADT Repeal Act of 2010 last December. The short answer is that the Repeal Act did not actually repeal anything. It only set in motion a conditional process for repeal that shifts the decision when (and whether) to end DADT to the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff. In the Ninth Circuit, the government appears to have conceded that DADT itself is unconstitutional. Instead, it now argues that courts must defer to its indefinite plan to unwind the policy.