A Federal District Judges acts like she is Commander in Chief

NY Times:

A federal judge on Tuesday ordered the United States military to stop enforcing the “don’t ask, don’t tell” law that prohibits openly gay and bisexual soldiers from military service.

Judge Virginia A. Phillips of Federal District Court for the Central District of California wrote that the 17-year-old policy “infringes the fundamental rights of United States servicemembers and prospective servicemembers” and violates their rights of due process and freedom of speech. She issued an injunction banning enforcement of the law and ordered the military “to suspend and discontinue” immediately any investigations or proceedings to dismiss members of the armed services.

While Judge Phillips’s decision is likely to be appealed by the government, it represents a significant new milestone for gay rights in the United States.

Two other recent decisions have overturned restrictions on gay rights at the state and federal levels, but Tuesday’s ruling, in Log Cabin Republicans v. United States of America, could have a more sweeping impact, as it would apply to all United States service members anywhere in the world. Christian Berle, the acting executive director of the Log Cabin Republicans, a gay organization, applauded the judge’s action, saying it would make the armed forces stronger. “Lifting the ban on open service will allow our armed forces to recruit the best and brightest,” Mr. Berle said, “and not have their hands tied because of an individual’s sexual orientation.”

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I don't think a district judge should be able to order the military to do anything. It is an abuse of the separation of powers doctrine. She is not in the chain of command and therefore lacks the authority to give a direct order to commanders in the field.  If a judge had that kind of authority it could create chaos in fighting a war.

What she can do is find a Congressional statue unconstitutional. Once she does that, the military can take actions it deems appropriate as can Congress. I really doubt her ruling will stand up unless the administration refuses to appeal. That type of liberal collusion could have political consequences for the administration.

The gay rights groups are making a mistake by going the judicial route on trying to overturn this law. They should have stayed with the political route where they were having some success.