Saturday, October 16

On DADT: Obama isn't quite Dumbledore

I've heard this complain many times.

Why doesn't Obama just do what Truman Did - and sign an Executive Order banning DADT?

Simple Answer: Because he can't do that, and the reason why is named : Bob Dole.

Y'see, "Don't Ask, Don't Tell" isn't just a matter of policy or regulation - it's a matter of law which was passed by Congress and unfortunately for those who think Obama can waive his magical executive wand and ignore the law, he can't.

\First on the issue of an Executive Order, from the President himself.

Obama: Point Number two, the difference between my position and Harry Truman's is that Congress explicitly passed a law that took away the power of the Executive Branch to end this unilaterally. This is not a situation that with the stroke of a pen, I can end this policy.

In his book, My Life Bill Clinton describes how it was Bob Dole who pushed forward the DADT Law as a way to block Clinton's then stated goal of ending the Military's Gay Ban. The President may be "Commander in Chief" but it is Congress who makes the rules for the Military.

U.S. Constitution, Article 1, Section 8 - Powers of Congress
To make Rules for the Government and Regulation of the land and naval Forces;

As a result of Bob Dole's move, DADT is listed within the U.S. Codes. - it's not simply a set of regulations, it is the law.

The point here is that when Congress passes a Law, the President can't just Ignore It and do what he wants to do anyway. He has to either change the law, which Obama has been working on doing with the defense authorization bill pending in the Senate, or the law would have to be struck down by the Supreme Court.

We've had another President who used to pretend that laws were optional. That President thought he had the power to ignore Geneva with the stroke of a pen, until the Supreme Court told him otherwise with Hamdan v Rumsfeld. We had a President who didn't think he had to follow the FISA law. Since then Congress has changed that law to give the President more wiggle room with the so-called "FISA Fix". Congress also passed the Detainee Treatment Act as well as the Military Commissions Act which erased Habaeus for foreign enemy combatants, until the SCOTUS restored it with Baumediene.

President Obama tried to close Gitmo with the stroke of a pen, but Congress hasn't funded it's replacement yet - so Gitmo remains open since we have no other place to put them currently.

I have also heard the argument that Obama could use "Stop Loss" to prevent the separation required by DADT? That is incorrect, because Stop Loss is not a Law, (Correction: No, Actually it is a Law that brought in during Vietnam, more on this here) it's a policy that was implemented by the Military and for which Congress was only briefed about. The only thing Congress has done with Stop Loss is to extend pay for it, but Congress didn't put it in place.

Lastly there is the argument that the Obama DOJ Shouldn't Appeal the DADT ruling - but that's not a very good idea.

Former Clinton Admin Solicitor General Walter Dellinger explains why.

I think the government really has not choice but to appeal the case, because we don't want a situation where a single federal judge can repeal and act of Congress. Imagine three years down the road if someone is challenging Health Care, over the individual mandate or minimum coverage requirements and we have a Republican President, and they find one Federal District Judge who finds that it's unconstitutional.


You wouldn't want a situation where the government would say "Well, we're just not going to appeal

So, even though the President wants to end the policy - the Justice Department should appeal because simply dropping the case because of the ruling of one judge is a horrible way to make policy. The Judge has issued a stay order, but the DOJ will appeal even if they have no real intention of winning the case are only doing so as a pro forma measure to push this issue ultimately to the Supreme Court. Once the SCOTUS rules - the law is changed.

Now the current defense authorization bill in front of the Senate also ends this policy - and there is only one bill - so either we repeal DADT and fund our military this year or we don't.

The policy is not over, not until either the Senate or the SCOTUS acts and right now the odds are good that both might in fact do so - but they haven't done it yet and other than cheerleading the Senate on the issue, Obama's hands are largely tied.

So stop beating him up over it, he's doing the right thing. It may not be
pretty right now, but we'll get to the goal we all want. Soon.


Update: More on the Stop-Loss Argument. This Study from last year states that the President has authority under 10 USC 12305 to suspend the law.

(a) Notwithstanding any other provision of law, during any period members of a reserve component are serving on active duty pursuant to an order to active duty under authority of section 12301, 12302, or 12304 of this title, the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States.

The question I have with this is whether this would be only an individual case-by-case basis where the individual person being separated has to be shown to be essential or can it be more broad. The other problem with this is that it would only last for as long as that determination held, so another President - or SecDef acting in his stead - could reverse this rule just as easily.

One thing is certain, the President isn't aware of this study or opinion - which as I noted is a fairly new understanding - because his understanding seems to be exactly as mine was.

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