WDellinger at OMM.com
Fri Jan 30 21:06:56 PST 2004
I am an increasingly strong adherent to Sandy Levinson's 'protestant'
approach to constitutional interpretation -- that every institutional body
-- legislative, executive and judicial -- is free, indeed obligated, to
interpret the constitution for itself. Judicial sovereignty adherents tend
to look only at what the Supreme Court has said, not at what the other
branches have said about this question For a debate on this issue within
the executive branch, see the letter from the head of OLC to White House
Counsel at http://www.usdoj.gov/olc/nonexcut.htm. Also, see the press
conference below on what position the executive would take on the
constitutionality of excluding HIV positive persons from the military,
pasted below. Since taking those positions as a government officer, I have
moved even more in Sandy's direction. His writings and arguments have shaped
But he is wrong to suggest that a lower court judge might properly refuse
to abide by Supreme Court precedent. That (tentatively held) view of his
results from a category mistake. He mistakenly assumes (I think) that the
argument for binding lower courts to follow Supreme Court precedent flows
from some assumption (that he rejects) that the Supreme Court is Supreme in
the interpretation of the law and the Constitution. But one can reject the
premise of judicial supremacy and still concluded that Supreme Court
precedent must be followed. This obligation of lower court judges (and in
some kinds of circumstances, executive branch officials) to abide by Supreme
Court precedent flows from a much more practical and ordinary consideration
-- the power to reverse. Where is it is known that the Supreme Court will
reverse holding X, it is simply an abusive process to rule X and thereby
force the litigant who loses in the lower court to undertake a wholly
unnecessary appeal. It's the judicial equivilent to a rule 11 violation to
unnnecessarily add an burden to a party who it is known will ultimately
prevail. This is just a simple common sense accomodation to the fact that
we know how the matter will come out in the end, and courts and executive
branch officials must not impose a wholly unjustified burden on a litigant
who is destined to prevail upon appeal.
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,
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
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,
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
Q -- definitely will receive medical --
MR. QUINN: I'm not an expert on -- the answer is yes. I'm advised the answer
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 Presidents 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
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
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
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
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
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
From: Levinson [mailto:SLevinson at mail.law.utexas.edu]
Sent: Friday, January 30, 2004 5:55 PM
To: dcruz at law.usc.edu
Cc: conlawprof at lists.ucla.edu
Subject: Re: Re: Lofton case
David Cruz writes:
I suppose I share Sandy Levinson's more catholic approach to constitutional
interpretation. While criticizing Supreme Court precedent is a distinctly
poor way to maintain a low profile and avoid reversal, I'm not yet convinced
that it is a breach of role or otherwise bad for the judiciary or the
Needless to say, I agree with David. I do note, though, that, with regard
to institutional authority, I'm a "protestant," rejecting a papalist
conception of the Court (which is why I'm tolerant of "inferior" judges
criticizing their ostensible superiors). I'm not absolutely convinced that
"inferior" judges are obligated to follow precedent, though I recognize I'm
in a small minority on that view. But I don't think that a judge should be
precluded, even as he/she "obeys the orders" emanating from a higher court,
from criticizing as stupid (or worse) what those orders require (or their
My "catholicism," as it were, comes in rejecting text alone as the source of
guidance as to the meaning of the Constitution.
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