Tuesday, November 9, 2010

Repeal DADT? Yes We Can!

Don't Ask Don't Tell (DADT) is still law. I think that it's bad law; however, I also think that President Obama has logical reasons for wanting Congress to repeal DADT rather than allowing a court ordered injunction to halt application of DADT or usingan Executive Order to end DADT. Here's why.

It's dangerous territory for the president to attempt to repeal duly passed legislation via exercising his executive power. There is a tendency to make comparisons to Truman's use of an Executive Order to end segregation in the military. It's an invalid comparison. Truman didn't have to contravene existing federal law in order to desegregate the armed forces. Jim Crow segregation laws were a hodgepodge of state laws. It also should be noted that it was five years after Truman issued his executive order before the armed forces was more than 90% integrated. 

A good friend feels that Obama needs to play hardball to earn the respect of Congress, either by directing the Justice Department not to appeal the court decision or by issuing an Executive Order to end DADT. I disagree. Obama won't earn their respect, they'll just use his actions as a ground for the ever growing rumblings about impeachment. It doesn't matter that they can't oust him; it didn't stop them when it came to Clinton. Impeachment is a time consuming process and detracts from time that the president needs to spend on important matters such as the economy.

Another risk is that if DADT is repealed by a court order rather that a change in law, it could succumb to the same fate as Brown v.the Topeka Board of Education. In the 1990s, white parents began bringing lawsuits against school systems arguing that the 1954 Brown decision had exceeded the authority of the courts. Specifically they opposed busing to achieve integration and the use of race as a factor in pupil assignment to achieve integration. These cases were filed and won in federal courts. In 2007, the big kahuna of these cases was heard before the U.S. Supreme Court when two cases were combined, Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools (PICS) v. Seattle School District. The U.S. Supreme Court ruled that the school systems in Seattle, WA and in Louisville, KY had violated the equal protection clause of the 14th Amendment by their use of a student's race in deciding whom to admit to particular public schools.
The decision has resulted in public school systems across the country being barred from using race as a factor in student assignments. Some systems have realized that they can still achieve racial integration if they use socioeconomic class in pupil assignments. However, the new trend is the one playing out in my local school system. The newest board members want to abandon the use of socioeconomic class and make assignments to neighborhood schools, the same term used in the 1960s as not so subtle language for maintaining segregated schools. The result has been a resegregation of schools not just in the south but particularly in major cities in the Midwest and Northeast.

What courts render, they can undo. It took nearly 50 years to undo Brown, I think that it won't take nearly as long to reverse a decision from the courts to repeal DADT. Especially as the current decision is from a federal district court, not the Supreme Court.

Let's say Obama successfully issues an executive order ending DADT. Let's assume that he wins in 2012. DADT will remain repealed. In 2016, he can't run again. Say a Republican wins the presidency, a conservative right winger who ran on a program of promising to reinstate DADT. He/She could follow Obama's precedent and do it using an executive order. He or she wouldn't be making new law; the law was never repealed. Or a party with standing could file a federal lawsuit that DADT was unconstitutional--perhaps some members of the military who believe that DADT demeans morale. SCOTUS agrees to hear the case and holds that the use of an executive order to repeal DADT was a violation of the authority of the executive office because it stepped in prior to there being a chance for Congress to hear and vote on whether to repeal DADT.

All of this is supposition but it's plausible supposition. If I've thought of this, you can bet Obama, who is a true constitutional scholar and a lot more knowledgeable lawyer than I am, has considered this and that he and his staff have been discussing all the angles.

I'd like to see DADT repealed by Congress. However, it's like in the horror movies when some nitwit knocks out the monster and doesn't make certain that it's really dead. If DADT isn't killed outright it will rise again and bite us in the butt.

So what can we do? Contact the Senators who are sitting on the fence. The Servicemembers Legal Defense Network (SLDN) recommends that we contact the following Senators via email, snail mail, or telephone calls and tell them that you support repealing DADT. Harry Reid (D-NV), Carl Levin (D-MI), Susan Collins (R-ME), Olympia Snowe (R-ME), Mark Pryor (D-AR), Blanche Lincoln (D-AR), Richard Lugar (R-IN), Judd Gregg (R-NH), Scott Brown (R-MA), George Voinovich (R-OH), Kit Bond (R-MO), Joe Mancin (D-WV), Lisa Murkowski (R-AK), Mark Kirk (R-IL).

There are multiple sites that you can use to get email, snail mail addresses, and phone numbers for your senators. My favorite is
Other sites are:
and http://www.senate.gov/


Mark said...

From his first day in office, Obama could have simply told the Secretary of Defense to pass along to his inferiors an instruction that new policy was to not investigate any third-party accusations of homosexuality.
This would have halted the vast majority of discharges, rendering the policy fairly toothless. I am constantly amazed by the lack of creativity coming from the White House to do end runs around the opposition. Had they raised a fuss, he could have gone to the people with the argument that this was a matter of National Security, the prevention of a terrorist attack, etc. Much more potent than the civil rights arguments to a fearful electorate.
The Republicans are not going to let DADT be repealed, no matter how many phone call and faxes. Why would that suddenly start to work now, after 300 filibusters on every issue known to man?

Mark said...

And no, I don't think after a second term of Obama's, that even a Conservative President would try to reinstate DADT. Once that genie is out of the bottle it's out. After six years of gay soldiers fighting without incident, there would be no political will to resinstate the policy.
And EVEN if they did, why would it not be worth it to have 6 years of open service? All these arguments are trying way too hard.
The truth is Obama imagines he'd lose "political capital" if he rams a policy change through. As if that kind of thinking did him any good in the midterms.
You're right, they're not going to respect him either way. But they don't fear him either.

Sheria said...

Mark, I love you, but the office of the president has no authority to decide that there is a new policy in order to do an end run around a duly passed law. That would be an impeachable offense. Think about it, if such authority existed, any president could pick and choose to undermine any law that he or she didn't like.

I don't care about Obama being nice and I suspect neither does he. It's about using diplomacy to get the desired results.

Sarcastic Bastard said...

DADT sucks. It was one of the few things Clinton did that I did not agree with.

Bucko (a.k.a., Ken) said...

I think you did a great job explaining why our President has not done more in this arena. I am sure it is frustrating for him.

Sheria said...

@ Mark, Why not follow through on the process to settle the question once and for all? The repeal of DADT has already passed the House. It only has to make it through the Senate. There's no logical reason for the president to intervene at this point and issue an Executive Order or let the court's injunction stand. Injunctions are temporary, at some point it would be successfully challenged. If the bill to repeal fails to make it through the Senate then as a last resort, Obama can issue an EO. Why settle for six years when there is a chance to repeal DADT rather than simply interrupt its application?

Des and Evan's big daddy said...

If I understand correctly, the repeal of DADT is part of the military appropriations bill that is currently in the Senate. This is the bill that funds an entire year's worth of Afghanistan, among other things, and when the GOP had control of Congress in the Bush years, they added plenty to it, knowing that if any Democrat opposed it, they could label them as "against the troops."

Sickening, but effective nonetheless.

John McCain is leading a filibuster to prevent the bill from getting a vote, and for the life of me, I do not understand why Democrats are not howling about it. "John McCain would rather keep gays out of the army than fund the troops!"

Yes, it's juvenile, but it's only going to get worse, so they might as well throw down now.

And I agree 100% with the way Obama has approached this issue. He is not the reason that DADT has not been repealed.

tnlib said...

Straight from a lawyer's mouth and thank you. I confess to having been a little disgruntled with Obama's decision but your legal analysis has helped clarify the issue better than any I've read so far. Sometimes emotions get in the way of reason.

As far as Insane McCane goes, he's always eager to fund the wars and send our men and women off to battle, but he isn't too inclined to do much for the vets. Man speaks with forked tongue.



Sheria - added you to my blogroll. Now doesn't that make your day?