Andrew Sullivan speaks for many when he writes, "One Last Thing, Mr. President: If you believe it is wrong to fire people from their jobs solely because they are gay, as you said Saturday night, stop doing it." But in order to "stop doing it" immediately, the president would have to stop obeying the law.
Yes, Harry Truman integrated the services by Executive Order. But there’s a crucial difference: segregation had been a matter of practice, never enshrined in statute. By contrast, Don’t Ask, Don’t Tell is law, enacted as a compromise after Bill Clinton’s bold, well-meaning, and disastrous attempt to keep his pledge to end discrimination against gays in the military “with a stroke of my pen.”
Yes, the president could use the same emergency powers used for "stop-loss" orders to end separations immediately. But the text of the provision granting those powers reads:
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.
On any reasonable interpretation of the term “essential,” a finding that ending DADT separations is “essential to the national security of the United States” would be false, Losing hundreds of servicemembers a year, out of an active-duty strength of just under 1.5 million, is costly to the services, and losing people in rare specialties, such as Arabists, is especially costly, but it’s hardly devastating. Does anyone actually believe that getting rid of DADT now rather than a year from now would change the odds of success in Afghanistan?
So the president would have to make a finding that is false-to-fact. That would be a flagrant abuse of power. Is the Blue team suddenly in favor of abuses of presidential power, now that one of our own holds the presidency?
Of course, if the Pentagon requested that the president invoke “stop-loss” powers that would change things; the press, the Congress, and the public are all (excessively) willing to defer to the brass and the Pentagon feather-merchants when it comes to defining what is, and is not, “essential to the national security of the United States,” and the president could not reasonably be accused of abusing his powers if he did so at the request of the acknowledged experts. But equally of course, once the Pentagon was ready to make that request it would be ready to propose repeal of the underlying Don’t Ask, Don’t Tell legislation. So all roads to success run through the Joint Chiefs and the Office of the Secretary of Defense.
Obama’s problem is to make the change bubble up from the services. And there's every indication that he is working on that, and succeeding. He has already made his preference clear, and defying the president (unless he leads with his chin the way Bill Clinton did) is rarely a good career move. A paper shredding the arguments for DADT, and explicitly comparing opposition to repeal to opposition to the racial integration of the armed services by Harry Truman, won a prize awarded by the Secretary of Defense and was published in the Joint Forces Quarterly. Lt. Dan Choi was invited to speak at West Point.
None of that would be happening except as part of a plan to reverse course on DADT. (And of course none of it would be happening under President McCain.)
A reversal of DADT that comes up from the bottom rather than down from the top will be much harder for a future Republican president to undo. Yes, patience in the face of injustice is hard. But that doesn’t make impatience a virtue.
The thing has to be done, and it has to be done sooner rather than later, and it has to be done right. Doing it right is more important than doing it instantly. And doing it right is the opposite of “throwing the gay community under the bus.”
I have $100 that says Barack Obama will sign a bill repealing DADT before the end of the current Congress. Any takers?
Follow Mark Kleiman on Twitter: www.twitter.com/markarkleiman
But - let's get real for a minute. Gay and lesbian citizens are angry and think they've waited long enough. They have but would you just stop and consider for one second how long it actually has been since y'all started openly campaigning for your rights? Women have been trying to get full civil rights in America since the 19th century. We were the last group allowed to vote which means that gay men always had the right to vote if they met all the criteria - and heterosexuality was a never a criteria.
It took women hundreds of years to get any rights anywhere. Gays and lesbians have made incredible progress in just under 25 years or so. And I firmly believe you'll be included completely just like you should be.
I'm not a lawyer, however, I do believe Mr. Kleiman has misread the stop-loss provision. As I understand it, and as it reads here, stop-loss applies to a MEMBER of the armed services that the President deems essential to national security. That is different than the sweeping application of reversing stop-loss as it applies to all gays in the military. Again, my understanding is that one is stop-lossed based on his or her duty speciality. If national security dictates that we need all the fighter pilots we can get, the President can declare that they are essential to national security and order them to remain in service. Similarly, if we needed more HumVee armoring specialists, doctors, radio operators, navigators, unmanned drone pilots, or infantrymen (and women.)
While a case could be made that there is national security need for Arabic speaking translaters, the law would still apply on a member by member basis. In other words, the military would still have the flexibility to keep certain members of a particular duty specialty and discharge others. That application would put the service member's entire record along side any other's and the decision would be made on a host of factors, not just one's sexual preference.
Not taking that bet because I believe Obama. Starting with the campaign, Obama's methodical way of doing things became a clear pattern. He doesn't do anything rashly, he seems intent on doing everything right and carefully so that it doesn't get undone again.
One would think so, but it appears this is not so at present. Rapists of their sister-soldiers get away with way too much, way too often. I think this issue merits more urgent attention, or at least as much attention as injustices against gay soldiers.
It's worth remembering that DADT was authored by Democrats, the party of majority in congress at the time the bill was written.
Bill Clinton could have threatened a veto or actually vetoed the bill (thus forcing an override), yet he did neither of those and signed the bill into law, the very opposite of what he promised gay and lesbian Americans he'd do during the preceding campaign.
So far, Barack Obama is following the same Clinton/Democrat playbook and promising the world while not delivering a d@mned thing. Trying to use John McCain as a deflection serves to point out the betrayal of Democratic leaders to their own gay and lesbian followers because after all, the bill was neither authored by Republicans nor signed into law by a Republican. John McCain didn't author the bill, Democrat Sen. Sam Nunn's Armed Services committee did. The same Sen. Sam Nunn who's an unofficial armed services and nuclear non-proliferation policy advisor to President Barack Obama. That's a sad but indisputable fact.
It's time to do the right thing right now. Step up, Mr. President. Step up now, not month or next year or after the next election or after your increasingly unlikely re-election. It's time to continue to live up to your peace prize and do the right thing, the just thing now, not when it's politically convenient.
They say President Obama did not deserve the Nobel Peace Prize because he has not accomplished enough in his presidency. Gauging from some of the blogs posted here, there certainly will be an abundance of future presidents waiting to take his job. Particularly, when all one has to focus on is a single issue with the detailed clarity of an electron microscope.
I gotta tell you, when I'm hired to do a job, it bugs-the-hell out of me having someone standing over my shoulder telling me how to do the job they hired me to do. God help me for having to use the man's words here, but GWB said something to the effect that you don't get do-overs in this job.
So, listen up! If you have not seen the rats jumping ship that means the Captain has the Con and we are still in good shape. So let the man do his job.
Are you really telling me that since the President has often told the public to push him he is, thereby, asking to have his presidency micromanaged by the public? And, can you please tell me of a single politician or statesman you know of who’s made good on their campaign promises within the first year of their presidency---yet alone during their first term in office? Having “civil right now” may be a great rallying cry, but it is not a realistic one in a democracy the size and complexity of the United States of America.
It seems to me that the hardest part for you is your inability for waiting on the President’s determination for when he feels it’s the right time for completing a particular campaign promise he made to the American people. I am gay, African American, a Vietnam Veteran, and a senior citizen. I have experience in waiting---not simply for the sake of waiting--- but because I understand the American political process even as it seeks to find a more perfect form of itself.
I wish you peace in your process.
Micromanaging = etc., etc. The President has often told the public to push him. Therefore, he has asked to be micromanaged.
I haven't heard anyone say that he doesn't deserve the Nobel because of issues regarding Gay Rights. Please correct me if I'm wrong. Frankly--I wasn't aware that the Cheney family had veto rights over the Nobel. Perhaps someone should inform the committee. Or tell Liz Cheney to shut up. (I'd pay money to watch the latter.)
I gotta tell you, when someone promises to do a job, I bugs the hell out of me when I hire them and they don't do the job they promised. Especially when they go out of there way to not do the job they promised (think the DOMA brief and Rick Warren). Tell me--would you hire a contractor to build a house, watch him build from the wrong blueprint, and correct him as he was screwing in the last light bulb? I'd correct him when I saw the foundation was off.
I'd love to let the man do his job--if it was the job he (and the democrats) were sent to DC to do. Did he campaign on "The middle ground you can believe in"? No--he said change. He, and they, were elected because the American people wanted change. The noise is because we haven't seen it.
So I'm going to continue to make noise.
Pres. Obama could build civil rights momentum by making a similar executive order concerning gay and lesbian service members and prospective recruits.
He chooses not to and continues to make vacuous promises that "it's coming," thus perpetuating the acts of discrimination which Pres. Bill Clinton signed into law. That's the irony. It wasn't George Bush who signed DADT into law, it was Bill Clinton. With friends like Clinton, who needs enemies?
As the article says, Truman could do that because segregation wasn't a law, but a de facto practice. In that case, the Commander in Chief can just say, "Hey, stop that." DADT is an actual law, passed by Congress, which means that if Obama says to just ignore it, without proof of it causing a major risk in national security, he's abusing his power and violating the Congress' duty to pass legislation.
DADT is outdated, and needs to be repealed NOW. Unfortunately, Obama still has to go through the proper channels in order to do that, as long as he's not trying to subvert his Constitutionally granted powers.
Obama, has stopped enforcing the law in many areas when they've chosen to.
Holder, as in prosecution of individuals who tortured others. And, in choosing to not pursue bad banker behavior.
Schapiro, as in not prosecuting corporate executives for fraud, instead fining the company, in effect punishing shareholders twice.
Their choices indicate their priorities and their character.
Oh, for goodness sake. Stop being ridiculous. How is a future Republican president (not a Democrat like Clinton, I suppose) going to re-institute DADT once the policy is suspended? Fire all the gay folks who've come out since the policy ended? Grandfather in new recruits who are subject to DADT, while allowing the older members of the military to be open? Use a mind-erasing machine on the entire country?
I can appreciate your legal arguments, but you're completely ignoring reality. Once an executive order comes down suspending DADT, the act is done. The bell can't be unrung by Obama, Congress, or future Republican boogeymen. Stop justifying your support for an administration that can't even justify its own actions.
Pretty much, yeah. All we need is another reactionary "unitary executive" who doesn't give a damn what people think and he'll have the backing of law to scrub out teh gay. No one, in fact, will have any basis to stop him. He would be enforcing the law, after all.
As long as DADT is the law of the land, it's the law of the land. Congress must repeal.
Now, that doesn't mean that DADT investigations can't just, you know, end up at the bottom of everyone's to-do list .
"Sarah Hjalmarson has grown adept at what she calls "the pronoun game."
In deference to the military's 16-year-old "Don't Ask, Don't Tell" policy, which bans gay members from discussing their sexual orientation while serving, the Army medic and Afghanistan war veteran has done her best to dodge questions about her lesbian partner.
"I'd never refer to her as 'her' -- it was always, 'my fiance' -- never really denying but never totally lying," Hjalmarson said.
But the University of Utah senior is tired of pretending.
Hjalmarson was one of four veterans who spoke about the Pentagon's policy at a Wednesday forum at the University of Utah's Hinckley Institute of Politics. Afterwards, the 27-year-old said she recognizes that public affirmation of her sexual orientation could cause trouble for her if she's called back into service, as many medics in the Army's Individual Ready Reserve have been in recent years. And that could trigger an other-than-honorable discharge and loss of her educational benefits."
**************
And in many states, Utah included, it's still legal to fire someone just because they're gay.
Why don't you try going through just one week at work trying not to mention a pronoun/name in relation to your spouse/significant other?
Let me know how that goes.
Thank you for your comments. You hit it on the mark: Try going through just one week at work not mentioning a pronoun/name in relation to your spouse/partner... Let me know how that goes.
As far as the public can observe, there's still no evidence on the record that he is pursuing anything but a zero-track solution.
You may not buy this argument, but I believe it's the one Obama is following by not unilaterally stopping the dismissal of gay military servicemembers. A freeze like the one you describe would not only be contrary to U.S. law, but it would legitimize a number of G.W. Bush's shadier "unitary executive" practices, and make it easier for a future "unitary executive" to do whatever it wants regardless of the what the law says. One of the central themes to Obama's presidency has been restoring the balance of powers within the respective branches of the federal government. The legislative branch makes laws, the judicial branch interprets them, and the executive branch carries them out. Obama role as chief executive is not to carry out only the laws he deems proper or just; he must carry out all laws to which his office is subjected. This is why he hasn't frozen DADT-related dismissals, and also why his DOJ is defending DOMA even while Obama publicly vows to get both repealed. Obama is trying to restore the role of President to its proper place in the federal governmental structure, while concurrently lobbying Congress to repeal the laws with which he takes issue.
While I can barely stand the constant stupidity emanating from the right, I'm finding it equally painful to tolerate the foot-stomping impatience from the left. Contrary to popular belief, the president is not all-powerful; and there are several crises being controlled at the moment.
This issue is much stickier than most civilians seem to understand. The military is a different world, ruled by conservative forces; and this matter has to be handled very carefully. But done right, as I believe Obama will do, it will happen.
Great post. Anyone who voted for Obama thinking he was just going to be Liberal Bush and unilaterally undo everything Bush did using the same shady methods - executive orders, signing statements, and the rest of the 'unitary executive' playbook - was not paying close enough attention to Obama's central message during the campaign. Obama not only wants to undo DADT and DOMA, but he wants to do so while simultaneously restoring to the branches of our federal government the respective powers they are supposed to possess under the Constitution. Obama's goal isn't just to right the wrongs of DADT and DOMA, among others, but to go about righting those wrongs the right way. Pretty admirable, and basically summarizes why I support Obama.