THE BLOG
12/01/2010 03:50 pm ET | Updated May 25, 2011

Give 'Em Hell, Barry!

This President is soft on progress.

Yes, he inherited an economy driven to the brink by Republican irresponsibility and, yes, preventing a second Great Depression was priority one.

The problem is that President Obama too often values consensus over conscience, overestimates Republican decency and, as a result, sells his convictions short. And now that the Democrats have lost the House, the prospect of Obama passing any meaningful legislation during the remainder of his term is looking pretty grim.

If Obama wants to inspire again -- it's been a while -- he'd better make a grand gesture for justice. He should strike down Don't Ask Don't Tell and the Defense of Marriage Act immediately -- without seeking Congress's approval.

It's not as if the President hasn't given the Congressional route the old college try. In fact, earlier this year the House approved a provision in the defense bill that would allow for the repeal of Don't Ask Don't Tell.

The problem is the Senate, where there exists an insipid campaign against reason. A large group of senators, overwhelmingly Republican, refused to consider the provision until an exhaustive survey was conducted about the opinion of the troops, so as to prevent potential encroachment on "unit cohesion" -- a euphemism if there ever was one.

The report -- officially released yesterday morning but previously available -- finds that 70 percent of active duty and reserve troops are alright with repealing Don't Ask Don't Tell -- a number more or less consistent with the rest of the country. The finding is a direct repudiation of the popular Republican condescension that soldiers -- the people we send to fight wars -- can't handle something as banal as sexuality.

The 370-page report concludes that the military can lift the ban with only minimal risk to the current war efforts.

Surprise, surprise: John McCain is still threatening a filibuster and next season's Republicans have signaled no interest in addressing the policy.

So much for Congress. What's up next?

According to Diane H. Mazur of the University of Florida College of Law, one way that Obama can strike down Don't Ask Don't Tell and the Defense of Marriage Act is by simply calling off ongoing appeals.

In July, Judge Joseph L. Tauro of Massachusetts determined that the Defense of Marriage Act (the federal government's official refusal to recognize gay marriage) is unconstitutional. And in October, Judge Virginia Phillips of California reaffirmed her earlier ruling that Don't Ask Don't Tell is unconstitutional.

Traditionally, when a federal judge strikes down a federal law on constitutional grounds, it is White House protocol to appeal the ruling. However, as Mazur explains, Obama has the power to call off both appeals, which would uphold the lower-court judges' rulings and nullify both policies.

As it stands, the Obama administration is in the awkward position of defending the constitutionality of policies Obama believes are immoral. All Obama has to do is pick up the phone and tell Attorney General Eric Holder and the Justice Department to abandon the appeal processes for both cases.

Of course, the whole thing would be quite the scandal. Republicans would cry fascist, secretly wishing they hadn't worn the sting out of the word during the health care debate.

But it may very well be the thing that saves Obama's presidency.

After all, a similar gamble served President Harry Truman very well in 1948.

Two years earlier, the 1946 midterms -- widely considered, like the 2010 midterms, a referendum on the president -- delivered both the House and the Senate to the Republicans by huge majorities.

Truman's popularity sank to 32 percent and he found himself at the mercy of what he called a "do-nothing" and "obstructionist" Congress. Sound familiar?

Rather than throw up his hands in despair, President Give 'Em Hell Harry, as he was known, denounced the proto-Party of No. And, rather than trying to reason with obstructionists on desegregating the Armed Forces, he went ahead and did it by Presidential Order on July 26, 1948.

Three months later, Truman's Democrats came roaring back with an even larger majority -- larger than last month's upset, even. Truman won the admiration of his public.

But Obama won't follow his lead. His official position is that he wants Don't Ask Don't Tell repealed but he won't explore extra-Congressional avenues.

In the civilized world -- I mean that more as a state of mind than a collection of states -- America is the only country where rational people like Obama continue to behave as if the jury might still be out on whether it is okay to treat gay people like second-class citizens.

One of Obama's greatest strengths is his keen eye for nuance. But human rights are not measured in degrees. Three-fifths of a human being, Obama is no doubt aware, is nonsense.

And it is shameful that a biracial president should require anyone to repress their identity to pass for what they are not. More shameful still that he should condone policies that deny lovers the right to marry when, at the time of his birth, 23 states still had miscegenation laws on the books.

I admire Obama a great deal. I maintain that he is the best thing global politics has going for it. But I am worried he may be operating on the mistaken assumption that he has eight years to fix America, so he may as well pace himself.

I'm reminded of a '90s sci-fi flick called Gattaca. The climax has Vincent Freeman beating Anton, his genetically enhanced brother, at chicken -- a childhood game where the boys competed to see who could swim further into the ocean before turning back. When pressed by his ostensibly superior brother about how this was possible, Vincent replies: "I never saved anything for the swim back."

If Obama keeps holding back on progress, hoping to keep afloat the wave of enthusiasm that swept him into office two years ago, he may very well find himself out to sea by 2012.

Let gay rights be your legacy. And give 'em hell, Barry.