Repealing “Don’t Ask, Don’t Tell”

In his zeal to prove Obama to be a disappointment to the left, and thus, somehow, translate that into victory for the right (?), it’s possible Hot Air’s Ed Morrissey has overreached, in arguing that Obama’s not doing everything he can to end “Don’t Ask Don’t Tell.”

Seriously, though, how does that work? Obama’s not as left as he should be, so… Republicans bleed more moderate votes? What’s their victory scenario in this?

Anyways, although Obama’s failure to push through gay rights oughtn’t be an issue for the right, it’s a legitimate concern for those of us on the left. So, why hasn’t he ended “Don’t Ask Don’t Tell” (DADT) by executive order?

Well, an executive order would probably be legally ineffectual. DADT isn’t a military policy; it’s a statute, promulgated pursuant to Congress’ ability to “make rules for the government and regulation of the land and naval forces.” See U.S. Const., Art. I, § 8, cl. 14; and 10 USC § 654. While conservative theories of executive power would give the President unbridled power over the military, that probably doesn’t jive with current law, which keys the President’s power in zones of authority shared with the legislature to the clarity of any legislative decree to the contrary. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In other words, a Presidential decree of non-enforcement, or outright command that the military ignore DADT, would bump up against a clear and legally proper contrary act of Congress. Those conflicts don’t usually end well for the President, and if pushed, they trigger fairly serious questions of executive authority that we, as liberals, might prefer that Presidents leave unasked.

If Obama unilaterally ended DADT, one can easily imagine the Army still discharging a gay soldier, the soldier suing the Army, and Obama intervening on the soldier’s behalf, to argue for the supremacy of his executive order in this hypothetical battle of the authorities. If the soldier eventually won it, proving the President’s supremacy, the case could set poor precedent for any future Republican occupant of 1600 Pennsylvania. It’s not hard to imagine a Republican President, come 2020 or whatever, re-instituting DADT and leveraging our hypothetical Gay Soldier v. Secretary of the Army to overcome an eventual legislative abolishment of DADT, and a prior executive order. Legislative action is either the only way to solve DADT, or the best, and most permanent way. We should wait it out.

That doesn’t mean we shouldn’t lean on Congress to get it to hit the floor, and Obama to get it to his desk, and signed. As soon as possible. But let’s do this thing right.

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