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Friday Talking Points [143] -- Don't Ask, Don't Tell, Don't Appeal?

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[OK, that was rather a fun title to write, but I have to at least begin with a warning that, while today's column is almost completely Obama-centric in focus, that only about the first third of it is going to deal with the gays-in-the-military issue -- the remaining two-thirds will examine the foreclosure mess and what it means politically. Just didn't want to mislead anyone by my title today, that's all.]

The White House has announced (as pretty much everyone expected them to) that they will be asking for a "stay" of the federal judge's order this week which demanded that the United States military immediately cease all enforcement of the "Don't Ask, Don't Tell" (DADT) policy of forbidding openly gay people from serving their country. This was a blow to many who support overturning the policy, since President Obama himself has long advocated (even fiercely, at times) getting rid of it. But now the White House is caught on a tightrope, or (to be less charitable) caught in an extraordinary display of doublethink. What Obama is saying, in essence, is: "We're fighting to get rid of DADT, while at the same time we're fighting to keep it." But, to be more charitable towards the White House, there is a valid constitutional reason for this awkward position, and also a valid political reason.

Some might have expected this discussion to take place a little further down this column, in the Most Disappointing President Of The Week award section. But, honestly, this wasn't a disappointment to me (even though it was seen as disappointing to many), but instead exactly what I expected Obama to do. As I wrote, earlier this week:

President Obama's position has always been that since Congress created this policy, Congress should be the ones who overturn it. He doesn't want to do it by executive order alone, and he doesn't even want the courts to do it for Congress. He's providing Congress with a Pentagon report which is going to lay out a way to make the transition smoothly (integrating the military didn't happen overnight, either, as I've written about before). This report is designed to quell politicians' fears and give them a reason to vote to end DADT. He's going to trust that Congress is going to do the right thing in December, after the report is released.

But Obama needs to get out and say so, and he needs to do it right now. Because his Justice Department is likely going to mount an appeal to the federal judge's injunction. Justice is supposed to defend all of the laws, even the ones they don't particularly agree with. That's their constitutional job. Meaning Attorney General Eric Holder is almost certain to appeal the ruling.

I ended this column with a suggestion as to how Obama could frame this issue, and put some pressure on the Senate to act on it before the end of the year. But I can't say that the decision to ask for a temporary stay of the judge's order was unexpected, because it really wasn't.

Of course, there was a bold way Obama could have acted on the issue, but looking at his past record, it would have been nothing short of downright astonishing if he had taken it. This would have been to perform what I would call (keeping in mind I am no lawyer, and realizing there already may be a term for this, which is unknown to me): "prosecutorial nullification." In other words, the government agency (in this case, the Attorney General) could have decided: "The judge is right, this is unconstitutional, therefore we will no longer defend this law in the courts, and let the ruling stand."

There is a very current example of this, on the state level. The state of California, through citizen referendum, passed "Proposition 8," which outlawed gay marriage. A lawsuit was brought against the new law. The lawsuit was successful, before the first judge who heard the case. It has now been appealed. But state Attorney General Jerry Brown (who is now running for governor) refused to defend the law in court. Brown, a Democrat, was backed up by his boss, Republican Governor Arnold Schwarzenegger, who refused to order Brown to defend Proposition 8 in court (because Arnie also disagreed with Proposition 8). Because the state isn't defending the law, the pro-Prop-8 folks have had to do so on their own (which has led to the legal question of whether they even have "standing" to do so).

President Obama and Attorney General Eric Holder could have taken this route on the DADT ruling. They could have said: "Well, the judge has ruled, we agree with the judge that the law is unconstitutional, therefore our constitutional obligation to defend it is now over, and we're going to let the ruling stand." They chose not to (and my advice is: don't hold your breath waiting for them to do so). This may be disappointing for opponents of DADT, but again, it should not have been entirely unexpected.

Obama really, really wants Congress to do the heavy lifting on overturning DADT. By his reasoning, Congress passed it in the first place, therefore Congress needs to get rid of it. Here is the president, from a recent town hall appearance, after being asked about DADT, and specifically why Obama didn't just take the route Harry Truman did in issuing an executive order to end the policy of segregation in the military:

First of all, I haven't "mentioned" that I'm against "don't ask, don't ask" -- I have said very clearly, including in a State of the Union address, that I'm against "don't ask, don't tell" and that we're going to end this policy. That's point number one.

Point number two, the difference between my position right now and Harry Truman's was that Congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally. So this is not a situation in which with a stroke of a pen I can simply end the policy.

Now, having said that, what I have been able to do is for the first time get the Chairman of the Joint Chiefs of Staff, Mike Mullen, to say he thinks the policy should end. The Secretary of Defense has said he recognizes that the policy needs to change. And we, I believe, have enough votes in the Senate to go ahead and remove this constraint on me, as the House has already done, so that I can go ahead and end it.

Now, we recently had a Supreme Court -- a district court case that said, "don't ask, don't tell" is unconstitutional. I agree with the basic principle that anybody who wants to serve in our armed forces and make sacrifices on our behalf, on behalf of our national security, anybody should be able to serve. And they shouldn't have to lie about who they are in order to serve.

And so we are moving in the direction of ending this policy. It has to be done in a way that is orderly, because we are involved in a war right now. But this is not a question of whether the policy will end. This policy will end and it will end on my watch. But I do have an obligation to make sure that I am following some of the rules. I can't simply ignore laws that are out there. I've got to work to make sure that they are changed.

In other words, his hands are tied and he is forced into defending a law he doesn't believe in, or at the very least believes should be changed. This seems, to this humble reporter, to be a bit less than the "fierce advocacy" on gay rights he promised on the campaign trail, but at the same time, it is entirely understandable.

Politically, Obama knows that if he latched on to one judge's ruling, and preempted both congressional action and the Pentagon's report (which should come out in roughly a month's time) on how to end DADT, he's going to make a lot of enemies in Washington. The whole point of giving the Pentagon a year to get used to the idea was to get as many of the brass on board before changing the policy, and to have a plan in hand on how to make the transition. When this report arrives (which was conveniently scheduled for after the elections), Obama is hoping that the lame duck Senate will pass the repeal of DADT the same way the House has already done so, in this year's Pentagon budget. The judge jumped ahead of this timeline, which is what put Obama in the bind he's currently in.

But even excusing Obama from telling Holder to just not defend DADT in the appellate courts for various reasons, he still seems to be ignoring the massive leverage the court's decision gives him. Perhaps this is intentional, and Obama is waiting until after the election to push the issue to the forefront of his own agenda. Which is indeed disappointing, if true, because he is missing an opportunity here to make some political hay over an issue on which the American public supports him, to the tune of 70 percent or better, right before an election. Republicans have been using gay issues as a political wedge for decades now, so maybe Democrats haven't quite woken up to the fact that the tide of public opinion -- on repealing DADT, at least -- has definitely turned. Democrats, led by Obama, could make this a big election issue, forcing Republicans to campaign on their support of intolerance and discrimination.

But, so far at least, neither Obama nor most Democrats seem inclined to do so. Which is both a shame, and a missed political opportunity to boot.

 

Most Impressive Democrat of the Week

The national news covered a Senate candidate debate in Delaware this week (even though the race in question is pretty much a foregone conclusion at this point), on the off chance that Republican/Tea Party candidate Christine O'Donnell might just say something amusing (which is so much more polite than saying "crazy as a loon," don't you think?).

Her Democratic opponent, Chris Coons, could have stood mute for the entire debate -- mouth agape at the nonsense emanating from O'Donnell, with the occasional eye-roll thrown in for effect -- and he still would have won the debate. His performance cleared this extremely-low bar adequately, so Coons deserves at least an Honorable Mention this week, although we do try to shy away from giving the Most Impressive Democrat Of The Week award out under these "by default" situations.

Instead, the MIDOTW goes to the Attorney General of Iowa, Tom Miller. Miller has shown admirable leadership nationwide in the past few weeks, for being the point man on investigating the foreclosure mess. He has gotten all 50 states to officially join him in his investigation of all the various illegal hanky-panky (that's a non-technical term for "fraud") by the banks and Wall Street in the growing disaster over foreclosure proceedings in the courts.

Tom Miller has truly gone above and beyond the call of duty in his pursuit of the banks. Miller has exposed shockingly unprofessional practices by the banks over foreclosure paperwork, and Miller has already gotten several of the biggest banks to impose multi-state (or even nationwide) voluntary foreclosure moratoria, to halt the entire process while the investigation continues. Last month, a record number of homes were foreclosed upon, meaning this is an enormous problem with enormous consequences -- and not only for the people being thrown out of their homes. If the paperwork upon which all those "mortgage-backed securities" turns out to have been built on sand, then it has the potential to cause another economic systemic meltdown.

So for his efforts to valiantly try to turn back a flood, for getting every single other A.G. in the country to stand behind him, and for identifying and spotlighting an issue that has long flown under the media's radar, this week's Most Impressive Democrat Of The Week is none other than Iowa Attorney General Tom Miller. Keep up the good work, Tom, and keep digging until you get to the bottom of the mess, no matter what species of slime you turn up along the way!

[Congratulate Attorney General Tom Miller via his official contact page, to let him know you appreciate his efforts.]

 

Most Disappointing Democrat of the Week

The big stories of the week centered on holes. The big feel-good news was the rescue of the Chilean miners from their hole in the ground. The media had way too much fun with this, swarming the relatives aboveground for weeks, and generally having themselves a picnic. One correspondent for a national broadcast network (after admitting he'd been up for two solid days) even described it as "Woodstock for journalists."

Kidding aside, though, the real holes in the news were the holes blown in peoples' financial lives over the foreclosure crisis. Other than bankruptcy, getting a home foreclosed upon is the biggest financial calamity a family can face in their entire lives. While Wall Street played fast and loose with the paperwork on mortgages, devising ever-cleverer (and ever-less-understandable) ways for Wall Street to make money, their headlong rush apparently cut a few corners. Actually, they cut all the corners off, and have now left millions of people in a very round hole. Because it is not only the families foreclosed upon who now may bear the brunt of this fiasco, but the properties themselves. Because no clear title can be granted, we now not only have "toxic asset" mortgages, we have moved to the level where we must contemplate thousands of houses which cannot currently be legally sold -- because nobody can prove who actually owns them -- or "toxic properties," perhaps. The scope of the problem is so far unknown, but it has the potential to further destabilize the housing market and push out for years any hopes of a true recovery in America's economy.

In other words, it's a nationwide problem. A "Sea of Holes," if you'll forgive the Yellow Submarine metaphor. You'd better, because I'm going to keep using it for at least another paragraph, I warn everyone.

Barack Obama, to be blunt, has been the ultimate "Nowhere Man" on the problem. As the Nowhere Man character in the movie put it (when asked what he knew about holes): "There are simply no holes in my education." OK, I'll stop now, I promise.

But it's no joke -- the millions of holes in peoples' financial lives the foreclosure disaster represents seem not to be on the mind of the president at all these days. He has been out on the campaign trail giving fiery speeches in an effort to aid Democrats, and yet he barely mentions foreclosures -- and when he does, it is merely one point in a litany of problems America faced when he took office (which he refers to frequently as "the hole" that Republicans left him in). Usually, he doesn't even use the word "foreclosure" at all in his speeches. Here's an example, from a town hall at Georgetown earlier this week:

And yet because of that hole, we've got millions of people across the country who are struggling, and some of you know in your own families those struggles -- people who can't find work despite sending resume after resume out, small business owners who still are having trouble getting loans, young people who are still having trouble financing their college educations, people who are worrying about losing their homes to foreclosure.

He didn't mention the word "foreclosure" again. He did glancingly refer to people who were "having trouble making your mortgage right now" once; but in the entire rest of the town hall meeting, he had absolutely nothing else to say on the foreclosure crisis. He spoke glowingly of Democratic solutions to all kinds of problems, and how Democrats were fighting for the middle class and all the rest of that sort of thing; but the big hole in his remarks was the word "foreclosure," and (even more importantly) "what we're going to do about it."

Even more ominously, this was the only speech this week where the president even mentioned the word "foreclosure" (from a quick reading of the most-recent White House archives).

This is a huge political problem. I argued earlier in the week that it was a huge political opportunity for the president and Democrats in general, since all of the pressure to declare a national moratorium on foreclosures is coming from the Democratic side, and Republicans aren't uttering a peep over it (for fear of annoying their Wall Street donors, no doubt). All the while, the mainstream media has finally noticed the story in a big way. Once they got every drop out of the miners' rescue story, they turned back to the home front and have been beating a very big drum on the foreclosure crisis ever since. Conveniently, this is right before an election.

But Obama's week-long silence on the issue was disappointing, to say the least. Hillary Clinton famously asked if Obama was ready to take a "3:00 A.M. call," and Obama made a whole bunch of political hay out of John McCain's response to the financial crisis which happened during the campaign. In both instances, Obama presented himself as a true leader, who would do the intelligent thing and be able to react quickly in a crisis. So far, on the foreclosure mess, he has been almost completely absent. And this absence grows more noticeable with every day that passes.

Which is why, even though he dodged it for the DADT issue, President Barack Obama is the winner of this week's Most Disappointing Democrat Of The Week award. Please, Mister President, start showing some leadership on the issue. You may not have the exact answer to the problem, but you have got to show that you recognize the problem exists, at the very least. Up until now, you have been failing to do so.

[Contact President Barack Obama on the White House contact page, to let him know what you think of his inaction.]

 

Friday Talking Points

Volume 143 (10/15/10)

I really should be writing stuff for Democrats to use out on the campaign trail this week, since we're getting right down to the wire on the 2010 midterm elections. But this week, the foreclosure thing has overshadowed other subjects, so instead I'd like to offer up my suggestion for how President Obama should be getting out in front of the issue. It's really only fair, after handing him the MDDOTW award in such a fashion.

For Democrats feeling a bit despondent in this grim election season, I do have a fun link for you, however. Check out PooDoo Dolls -- voodoo dolls of your least-favorite Republicans, actually filled with (how appropriate!) de-smell-ified elephant dung (as they put it: "they're REALLY full of GOP crap!"). Twenty bucks gets you a doll of such luminaries as Michele Bachmann, Glenn Beck, John Boehner, and (naturally) Sarah Palin. And that's not all! You even get accessories! Again, from the site's text:

Plus, they each have a keychain accessory -- Glenn Beck (crazyboard), Sarah Palin (teabag), Rush Limbaugh (pill bottle), Ann Coulter (broomstick), John Boehner (suntan lotion), Virginia Foxx (tin foil hat), and Michele Bachmann (cuckoo clock).

As with all our politically-themed products, a third of our profits from the sale of these dolls will go to the campaign funds of politicians who could use a few bucks. Outside the election cycle, proceeds will go to the Carter Center, Habitat for Humanity, or another worthy charitable fund.

So, since this week was kinda on the serious side, I just had to give these folks a free plug. Order your PooDoo Doll today, and maybe it'll arrive before the election!

[Full disclosure: I received nothing for this free plug, and am not a customer of their site. I just thought it was hilarious, that's all.]

But enough of such frivolous levity. Because, as I mentioned, the foreclosure problem is not only a serious one which faces America right now, but also a very serious political problem which faces President Obama right now. The longer he goes without addressing it, the more it appears that the White House simply doesn't know what to do, and is dithering instead of leading on the issue. Obama doesn't have to come up with any magic answer tomorrow or anything, mind you -- but he does have to appear to at least understand how big the problem could be, and he also needs to show that his administration is engaged on the issue as much as they can be.

Fortunately for Obama, there's a new member of the administration who would be perfect to become the point person for the White House. But I'm getting ahead of myself.

 

Suggested remarks for President Obama

There has been a lot of talk recently about the foreclosure situation in America right now, and I'd like to address this today. First, I'd like to thank the Attorney General from Iowa, Tom Miller, for doing an outstanding job leading the effort to uncover this problem -- an effort that every single state has now officially joined with Miller in pursuing.

Americans have been hearing about some unbelievable things banks have been doing from the media recently, and I have to admit that I was shocked to hear of some of these practices as well -- people who were quite obviously unqualified hired to process foreclosure paperwork, incredibly lax practices in handling this paperwork, and people blindly signing over ten thousand foreclosures a month without even reading the paperwork they were rubber-stamping.

When the scope of this problem emerged, my first action as President was to veto a bill that had suspiciously skated through Congress right before they left to begin campaigning -- a bill which may have given the banks a legal shield behind which to hide, so they could avoid responsibility for their actions. I thought this was wrong, and so I refused to sign the bill. We've got to understand what happened here in order to prevent it ever happening again, and the only way to do that is to let the process go forward and uncover what it may. Signing this bill may have prevented the this from happening, which is why I did not do so.

Many Democrats have called for a nationwide moratorium on foreclosures, to halt everything in order to figure out what went wrong. While I understand the well-meaning feeling behind this effort, I have to say that I do not agree it is the right solution at the moment. Perhaps when Congress reconvenes, we can take a look at it, but not every bank or every institution on Wall Street caused this problem, so I don't think sweeping with such a wide broom is the productive way to go at this point.

Instead, however, I do fully support the banks which have voluntarily imposed a moratorium on their own foreclosures, so that they can reform their own practices and start the process of fixing the problems caused by the errors already made. I think that any bank or financial firm who has been shown to have exhibited these lax business practices should join this self-imposed moratorium, and if they do not then they do indeed need to be compelled to do so when we reach that point of intransigence.

But while mortgages are handled on a state government level, for the most part, the federal government also has a responsibility to oversee the banking industry to prevent such abuses from happening, and to reform regulations where needed to hold to account those who are playing fast and loose with the paperwork dealing with the biggest and most important asset most families will ever own -- their own home. If there has been criminal behavior, people should pay for it in the courts and in the jails if necessary. If there has been fraud, we want to track it down and hold both companies and individuals responsible to the fullest extent of the law.

What I can do, as President, is to order Elizabeth Warren to join in the effort led by Iowa's Tom Miller. Elizabeth is currently in charge of setting up the Consumer Financial Protection Bureau, and I can think of no more pressing issue right now than finding out what went wrong in the mortgage industry -- so that it never happens again. Elizabeth will come at the problem from the point of view of the consumer -- the average American family involved in the process -- and will have the full resources of the F.B.I. or any other federal agency necessary behind her, to get to the absolute bottom of this problem once and for all. I have informed her to report to me on a regular basis on her liaison with Miller's investigation, and that she can request any other federal agency's help to accomplish the goal of figuring out what went so very wrong. Within a month, she will deliver a report to me complete with recommendations for both what should be done immediately to defuse the problem in the short term, and what will be necessary in the long term to prevent it from happening in the future.

If Elizabeth Warren reports that new laws are necessary, I will be strongly urging Congress to pass such reforms before the end of this calendar year. If action is necessary, waiting months for such action may not be a realistic option. This should be a bipartisan issue, and I call on everyone -- no matter your political party -- to come together to fix this problem which could affect millions of Americans, and millions of properties.

You'll be hearing much more on this issue from me in the days and weeks ahead, I promise you that. Thank you.

 

Chris Weigant blogs at:
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