Jason Mazzone sees a path forward should Obama have the courage to take it. What the president should say to Congress:
[T]he Department of Justice will continue its current efforts in court to defend DADT from constitutional challenge only if doing so reflects the will of Congress. DOJ attorneys have filed with the Ninth Circuit a notice of appeal from the district court’s judgment. According to the schedule the Ninth Circuit has set, the government’s appellate brief is due on January 24, 2011. The DOJ will file a brief and continue with the appeal if prior to January 24, 2011, Congress affirms in a concurrent resolution that it supports the continued defense of DADT in court.
If neither the 111th nor 112th Congress adopts a concurrent resolution to this effect prior to January 24, 2011, on that date the DOJ will withdraw its appeal and the district court’s injunction will take permanent effect.