DOJ's obligation to appeal findings of unconstitutionality

[William Funk]

One case in which DOJ did not defend the constitutionality of a federal law
was in Chadha v. INS, 634 F.2d 408 (9th Cir. 1980).  This case started in
the court of appeals and was brought by the petitioner, Chadha, challenging
the order of deportation.  In the court of appeals, the government agreed
with Chadha that the law (one-house veto) was unconstitutional, and the 9th
circuit invited the House and Senate to file amici briefs, which they did.
Judge, later Justice Kennedy, wrote the opinion finding the law
unconstitutional.  Then the government, having prevailed on the merits,
sought certiorari and continued to argue that the law was unconstitutional
and that the 9th circuit was correct.

Bill Funk

Lewis & Clark Law School

 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Cohen,David
Sent: Thursday, October 14, 2010 3:10 PM
To: conlawprof at lists.ucla.edu
Subject: DOJ's obligation to appeal findings of unconstitutionality

 

Hi all - In light of today's unsurprising revelation
<http://www.huffingtonpost.com/2010/10/14/air-force-dadt-enforcemen_n_763192
.html>  that the DOJ is going to appeal the district court's finding that
Don't Ask, Don't Tell is unconstitutional and its issuance of a worldwide
injunction in the case, I'm curious to hear what others know about the DOJ's
obligation to appeal lower court rulings that find a federal statute
unconstitutional.

 

Does the DOJ have an obligation to do so?  If so, where is it from?  If not
(or even if so, I guess), when has it failed to do so in the past?

 

Thanks for the help here,

 

David S. Cohen

Associate Professor of Law

Earle Mack School of Law at Drexel University

(215) 571-4714

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