Obama as Commander in Chief and DADT

According to a Newsweek article that sources a bunch of different military and constitutional scholars, Obama in fact does have options in at least putting a freeze on enforcement of 'Don't Ask, Don't Tell'. Not only is there precedent in the courts but Congress has explicitly given him greater freedom in how to enforce laws regarding the military and shaping regulations that pertain to those laws. There are a number of justifications for not enforcing the law and aside form an executive order, as the head of the military he could simply instruct the military to stop enforcing the law.

Reasons discussed went as follows:

1) He could declare that he believed it to be unconstitutional. When the law was first put in place in 1993 there was no legal precedent for recognizing the rights of gay people. That changed, though, when the Supreme Court recognized the right to privacy of people in gay relationships in Lawrence v. Texas which struck down the sodomy law in that state, effectively ending sodomy laws across the country. This decision then also set a standard that unless the state can prove that it had a legitimate interest in limiting the rights of LGBT people, laws infringing on those rights were unconstitutional.

2) Congress and the courts often defer to presidential authority under Article 1 of the Constitution. While the matter of his seemingly ignoring laws passed by Congress could go to the courts, the case would have to be argued on behalf of military officers and or members of Congress. But Article 1 gives the president a lot of leeway.

3) There are already laws in place that the President either does not enforce or enforces lightly, in particular when it comes to deciding on what laws to prosecute and in seeking sentences.

4) In 1984 Congress gave the president 'Stop-Loss' authority that allows him to put a halt to discharges in the face of troupe shortages. In the current climate, it is a widely regarded fact that there has been difficulty in recruiting service members. Recruitment has been so difficult, in fact, that they have been allowing convicted felons and high school dropouts to join, been lowering standards of physical fitness and been giving wavers to soldiers caught and convicted of crimes during active duty.

5) He could have decided from the beginning not to defend the law. This would have set up a situation where the decision didn't override legislative or executive power. Like Governor Schwarzenegger did in California on the case against Prop 8, he could have allowed other groups, including Republicans in Congress, to step in and try to defend the law in court, if the court allowed it. Doing this would not only have provided him political cover among his base, but also would have allowed him to not act in direct conflict with stated policy.

The President, while making firm statements in his belief that the policy is wrong and is even detrimental to our national security, has yet to say whether he believes it is unconstitutional. From the beginning he could have instructed the Justice Dept. to argue the case from a point of already believing the law is unconstitutional. To the contrary, however, my understanding is that they've been aggressive in defense of the law.

While some people may think rail against 'judicial activism', the same kind of activism that held up voter's rights in FL during the 2000 election and thereby giving the hypocritical George W. Bush the win, as I've stated before that is the job of the federal court system, or one of them at least. It is always funny to me how people, almost always people on the political right, argue about judicial activism only when their side loses. People on the political left have done so rarely and most recently in what I believe to be a truly horrific decision by the Supreme Court in the Citizens United decision that recognized corporations as legal entities with a right to free speech. By doing this they've allowed unprecedented amounts of money to flood the campaigns during this election cycle.

In terms of the President enforcing DADT or not enforcing it, it is a terrible contradiction for him to hold a position that he clearly is not willing to act upon when he does have options, at least while the courts are deciding on the issue. His Justice Dept is seeking a stay on the injunction, arguing it before the judge who created the injunction and now issuing a request for an emergency stay on the injunction to the Court of Appeals. Whether it is likely or not that Court of Appeals would go through with putting a stay on the decision seems to be a mystery to most. What is believed, however, is that if the issue goes to the Supreme Court, because of the political atmosphere on the court it is likely that they would issue a stay, at least while the case itself is going through.

What the Judge reasoned, however, when denying the request for a stay is that the government failed to prove that the injunction would in fact harm readiness and troupe cohesion as they've argued all along. They failed to prove their case, and if the Appellate Court agrees, there really may be too weak of a case. Also, I would think that by now, considering the study ordered by the President and Secretary of Defense was supposed to have begun in July and been done by Dec 1st, which is only about six weeks away, they must have at least some data already that would give a preliminary indication about the effect of DADT. If they don't or if they are reticent not to give away the surprise before the study is complete, I suppose they seem happy to have a weak case. If, however, the preliminary findings of the ongoing study lean toward it being less of a problem than argued by the political right, than they should suffer the consequences of going against even the evidence they already have.

The bottom line is that when the President says he doesn't have the authority to end the law by executive order, he is correct. When he says that, though, and lets it imply that he has no options or recourse other than to wait until Congress repeals the law, he is deliberately dodging the issue and dodging his responsibilities as a leader. He has stated his position on the policy. He has authority to take action that would at least temporarily halt enforcement of the policy he's against. He has a responsibility to the citizens of the United States and especially to those serving in the military to exercise the leadership we had hoped he would exhibit when we elected him into office.