Do You See a Trend Here?

A couple of days ago I noted this story, reporting on the DOJ's attempt to have a suit against DADT dismissed:

Congress's steps toward repeal of the ban on gays in the military should bring a halt to a federal lawsuit challenging the current policy, the Justice Department said in a legal brief filed Wednesday afternoon.

Though Congress has not yet passed a bill providing for conditional repeal of the Don't Ask Don't Tell policy, government lawyers contend the prospect of such a measure's passage should be sufficient for the courts to stay out of the issue.

I thought it was just us, but this morning I ran across this story concerning a legal immigrant facing deportation:

The Department of Homeland Security (DHS), backed by the Department of Justice, tried to argue that even though Jose had neither been charged nor convicted of a federal felony, the fact that he could have been prosecuted for a federal felony, means that he was not eligible for cancellation of removal.

I think we can call it the "well, it might happen" theory of legal argument. (This is actually close to one of the arguments offered by the proponents of Prop 8 in Perry vs. Schwarzenegger -- something terrible might happen. Maybe. But we don't know.)

It also strikes me that this is an inheritance from the Bush administration's treatment of the concept of "enemy combatant" and the majority of the detainees at Guantanamo. We're developing a whole legal philosophy based on wild-eyed maybes.

They can't all be right-wing crazies -- can they?