The Justice Department will seek a short-term emergency stay to the bar on the military’s Don’t Ask Don’t Tell policy at the Ninth Circuit Court of Appeals, a puzzling twist to a court case that appeared to end the policy outright.

The courts are following the evolving determinations of one of the litigants in the case. If repeal has passed and is about to be certified, and if the same Administration is withdrawing their support for laws discriminating against same-sex couples on the grounds that they are unconstitutional, the court had no choice but to lift the stay. “The circumstances and balance of hardships have changed,” wrote the Ninth Circuit, “and [the government] can no longer satisfy the demanding standard for issuance of a stay.”

This is a fairly astounding happening as Liu was first nominated to the 9th in February of 2010, but the nomination died at the end of the 2010 session from lack of even an attempt to call for a floor vote. President Obama promptly renominated Liu, and he was again promptly reported out of the Judiciary Committee on a straight party line vote, but it appeared as if the nomination would be again be left to die a quiet death. Apparently not.

The Supreme Court declined to fast-track a challenge to the health care reform law, and will allow the circuit courts of appeal to take up the question of the constitutionality of the individual mandate. This likely means that they won’t get around to a ruling of their own, assuming that whatever the appeals courts decide will get appealed up to them, until 2012 at the earliest. In fact, a decision could come right in the middle of the Presidential election.

A standard tactic of the last two Administrations has been to operate in secrecy and then accuse those who have been denied access and information of not having standing to sue over, in this case, wiretapping, because they don’t have evidence that they’ve been targeted. It’s a cynical technique, but a successful one, until now.

Florida District Court Judge Roger Vinson has ordered a stay on his own ruling voiding the Affordable Care Act because of Constitutional issues. This will allow states and the federal government to continue to implement the health care law while the case is under appeal.

Surprising no one, the Supreme Court left intact (without comment) the ban on open service in our military by gays and lesbians while the Appeals Court determines its constitutionality.

A three-judge panel of the Ninth Circuit Court of Appeals has put a temporary stay on the worldwide ban on discharges of gay and lesbian service members under Don’t Ask Don’t Tell. However, this doesn’t mean that stay will continue; in fact, the three judges haven’t even heard the case.

The President has a lot of options here, and they do not merely reflect picking and choosing what laws to implement and what to ignore (which makes me personally uncomfortable). The appeal is discretionary, a stop-loss order is available and in general the DADT ban doesn’t have to be stayed as a matter of Constitutional precedent.

The final ruling should come out of the Riverside, CA courtroom this morning. But based on yesterday’s hearing, we can expect a rejection of the stay. The judge said the government failed to show proof of “irreparable harm” to the military if the injunction goes forward.