The 9th Circuit gives the Obama administration 10 days to say whether it will appeal the injunction against enforcing Don't Ask Don't Tell.

According to the Wall Street Journal:

[T]he court said it did not believe the Obama administration is prepared to defend the constitutionality of Don’[t] Ask, Don’t Tell....

But the court wrangling appears to be much ado about nothing.

Although the injunction will bar the military from discharging any gay or lesbian service members, as a practical matter the injunction will have little effect on a military that is gearing up for repeal. Pentagon officials have said that they will be ready to certify that the military is ready for repeal within weeks.

The Supreme Court leaves Don't Ask Don't Tell in place — with Kagan not participating.

The 9th Circuit stay on the order ending DADT will keep the policy in effect pending appeal. There were no dissenting opinions, and, most interestingly Justice Kagan did not participate:

While it was not a surprise that Justice Kagan had opted not to take part in the order, that was nevertheless a significant development.  It raised the prospect that, when the constitutional challenge reached the Supreme Court, the Justices might split 4-4 on it; that is always a risk when only eight Justices are taking part and the issue is a deeply controversial one.  Should the Ninth Circuit Court upheld [sic] the policy, that result would simply be affirmed; without an opinion, if the Justices were actually to divide 4-4 in reaction to it....

If it should turn out that Congress does not repeal the policy, despite the requests by President Obama and some of the Pentagon’s top civilian and uniformed officers, the constitutional challenge in the Log Cabin Republicans’ case would be the only potential way to end the policy, at least for several more years.

A 9th Circuit panel keeps Don't Ask, Don't Tell in place.

"[T]he public interest in ensuring orderly change of this magnitude in the military – if that is what is to happen – strongly militates in favor of a stay...."

9th Circuit Judge John T. Noonan Jr. can't understand the Justice Deparment's argument that the Arizona immigration law is preempted by federal law.

At oral argument today:

"I've read your brief, I've read the District Court opinion, I've heard your interchange with my two colleagues, and I don't understand your argument," Noonan told deputy solicitor general Edwin S. Kneedler. "We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That's not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don't have an argument."

"With respect, I do believe we have an argument," responded Kneedler, who said the Arizona law is unconstitutional and threatens civil liberties by subjecting lawful immigrants to "interogation and police surveillance.''

Yeah, well, but that's not preemption.

Here's my old post trying to make sense of the preemption argument. I came up with this (admittedly strange and politically inadvisable) argument:

The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration. Given that federal policy and the supremacy of federal law, one could argue that it is not within the state's proper power to dictate a different policy and impose it on the federal government (by referring a lot of new cases of individuals violating federal law).

I really need to see the whole transcript. Ah! Here's today's oral argument:

9th Circuit stays the Prop 8 case pending appeal.

So... no same-sex marriages in California until the appellate court hears the case. The question whether the Prop 8 proponents have standing to appeal is a threshold question that is still unresolved.

"Those offended by Kehowski's ideas should engage him in debate or hit the 'delete' button' when they receive his e-mails."

"They may not invoke the power of the government to shut him up."

Orin Kerr thinks the 9th Circuit has made "every computer search warrant that has ever been obtained — and every offsite search" unconstitutional.

"Am I right that the Ninth Circuit's Fourth Amendment decision in United States v. Comprehensive Drug Testing has rendered every computer search warrant that has ever been obtained — and every offsite search — unconstitutional? I've been working in this area for over a decade, and I have never heard of a case that satisfies the Ninth Circuit's new procedural standards."