President Obama

One word stuck out as tough, but basically Bridget Todd’s query to President Obama was delivered very respectfully: She told the president that she had voted for him based on his “alleged” commitment to equality for all Americans, gay and straight. But she now had a “question” about his commitment to Don’t Ask, Don’t Tell (DADT).

“I know that you’ve mentioned that you want the Senate to repeal it before you do it yourself,” said Todd, an English teacher at Howard University. She was part of the audience for an MTV-BET “Youth Town Hall” meeting October 14 at BET Networks studio in Washington, D.C.

“My question is: You, as the President, can sort of have an executive order that ends it once and for all, as Harry—as Truman did for the integration of the military in ‘48. So I wonder why don’t you do that if this is a policy that you’re committed to ending?”

The president seemed quite prepared for the question and, perhaps, even a little defensive. It has been a question that has come up a lot during the past year, at least within the LGBT community.

“First of all, I haven’t ‘mentioned’ that I’m against ‘Don’t Ask, Don’t Tell’,” he replied. “I have said very clearly, including in a State of the Union address, that I’m against ‘Don’t Ask, Don’t Tell’ and that we’re going to end this policy. That’s point number one.

“Point number two,” continued the president, “the difference between my position right now and Harry Truman’s was that Congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally. So this is not a situation in which, with a stroke of a pen, I can simply end the policy.”

“What I have been able to do,” said President Obama, “is for the first time get the Chairman of the Joint Chiefs of Staff, Mike Mullen, to say he thinks the policy should end. The Secretary of Defense has said he recognizes that the policy needs to change. And we, I believe, have enough votes in the Senate to go ahead and remove this constraint on me, as the House has already done, so that I can go ahead and end it.”

In answering Todd’s question, President Obama did say he agrees “with the basic principle” of a recent federal district court judge’s opinion declaring DADT unconstitutional. He said “anybody who wants to serve in our armed forces and make sacrifices on our behalf, on behalf of our national security, anybody should be able to serve. And they shouldn’t have to lie about who they are in order to serve.

“And so we are moving in the direction of ending this policy,” finished Obama. “It has to be done in a way that is orderly, because we are involved in a war right now. But this is not a question of whether the policy will end. This policy will end and it will end on my watch. But I do have an obligation to make sure that I am following some of the rules. I can’t simply ignore laws that are out there. I’ve got to work to make sure that they are changed.”

These were fierce words: “This policy will end and it will end on my watch.” But was it a promise or a prediction? After all, he also said he doesn’t have the authority to end it himself. And on the same day of the youth forum, Obama’s Department of Justice filed a motion to oppose a court-ordered injunction to end the law on his watch.

The interaction at last Thursday’s Youth Town Hall encapsulated an ongoing struggle between the Obama administration and the LGBT community. The question on the surface is a legal one–Does the president have the authority to stop DADT discharges? But below the surface is a question of politics: Is it a good idea to repeal the law without the advice and consent of Congress?

The U.S. Constitution gives Congress the right to “raise and support” a military and “to make all laws which shall be necessary and proper” for carrying out that duty and others.

That wasn’t the law President Obama was referring to when he responded to Bridget Todd’s question by saying, “Congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally.” He was, according to a White House spokesman, talking about Don’t Ask, Don’t Tell (DADT), the federal law passed in 1993. That law explicitly interprets the language in the Constitution to mean, “it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.”

President Obama was correct, said longtime LGBT legal scholar Arthur Leonard of New York University, when said he can’t end DADT by issuing an executive order like President Truman ended segregation of the troops in the late 1940s and early 1950s.

“The president can’t end a policy that’s embodied in a statute,” said Leonard, “and, in Truman’s case, racial segregation in the military was a traditional practice, not a statutory requirement.” Other legal scholars consulted for this article unanimously agree on that much.

But, said Leonard, “it has been argued by the Palm Center, among others, that there is a provision in U.S. law authorizing the president during times of war to suspend existing statutory personnel policies if necessary to meet the staffing needs of the military.”

That argument, said Leonard, suggests the president has the authority to “suspend” DADT now because such conditions exist.

Wording is important. Everyone agrees the president does not have the authority to “end” DADT; even a fact sheet from the Palm Center, the think tank that has been vigorously pursuing repeal of DADT, states that “only Congress or the courts can repeal it.”

“I think the President is correct that he can’t make DADT go away with the stroke of a pen,” said Gary Buseck, legal director for Gay & Lesbian Advocates & Defenders. “But whether he can ‘do anything about DADT’ is a different question.”

The courts have given the Obama administration opportunities to something else to end DADT, and in a way with minimal political fallout. Two federal district courts have ruled DADT to be unconstitutional, and one of those courts—in the Log Cabin Republicans v. U.S. case—issued an injunction October 12, prohibiting the “United States of America and the Secretary of Defense” from further enforcing or applying DADT “against any person under their jurisdiction or command.”

The Obama administration did not seize the opportunity of the court injunction to end the policy on his watch. His Department of Justice submitted motions on October 14 asking for a stay of Judge Virginia Phillips’ injunction and indicating it would appeal her September 9 decision finding DADT unconstitutional.

President Obama could have instructed DOJ to withdraw its motion for a stay of the injunction, said Jon Davidson, legal director of Lambda Legal Defense and Education Fund, “which would suspend Don’t Ask, Don’t Tell while any appeal proceeds.”

“Furthermore, he could instruct the Department of Justice to drop any appeal,” added Davidson. “While Congress might be able to seek to appeal [of Phillips’ decision], added Davidson, a simple majority of Congress could block that route.

“So, while he could not repeal the Don’t Ask, Don’t Tell statute without Congress,” said Davidson, “he could as a practical matter put it to an end.”

When asked why the Obama administration defends in court laws that President Obama opposes and/or believes are unconstitutional, officials from the Obama administration have repeatedly stated that the president has an obligation to defend all federal statutes.

In fact, the presidential oath of office obligates the president to “preserve, protect and defend the Constitution.” Two federal district courts have said DADT violates the Constitution.

“While the administration repeatedly has said they have an obligation to defend and appeal when a federal statute has been challenged, there are multiple instances where prior administrations have not done so,” said Lambda’s Davidson.

“I am incredibly disappointed in President about this,” said Davidson. “He says the policy will end during his watch, but how is that true unless Judge Phillips’ decision withstands the appeal the Department of Justice has already announced? How will a lame duck Congress overcome the filibuster that blocked passage before, especially since several open seats that may be taken by Republicans will be filled immediately after the November elections?”

“I hope I am proven wrong,” said Davidson, “but at present it seems like, absent denial of a stay pending appeal [in LCR v US], the policy will remain in effect and hundreds of servicemembers will continue to have their careers destroyed, others will continue to have their constitutional rights denied by the Obama administration, and all lesbians, gay men, and bisexuals (and, most tragically, youth) will continue to be told by the government that they deserve to be discriminated against and should live their lives in silence, fear, and shame.”

“I feel tremendous anger and sadness that our lives mean so little to the President and that he continues to dissemble about his authority to do anything about it.”

Those are strong words, too. And Lambda Legal is a non-partisan legal group. Here’s what Log Cabin Republicans’ lead attorney had to say about the Obama administration’s request for a stay and plan to appeal LCR v. US:

“We are not surprised by the government’s action, as it repeats the broken promises and empty words from President Obama avowing to end ‘Don’t Ask, Don’t Tell’ while at the same directing his Justice Department to defend this unconstitutional policy,” said Dan Woods.

The real problem President Obama faces on DADT, suggests legal scholar Leonard, is a political one.

“He faces the political problem that exercising his discretion as commander in chief could make it more difficult to obtain a repeal from Congress.”

Certainly, a Congressional solution is not an easy route. While the House passed a measure to repeal the law, the Senate was unable to must 60 votes to break a filibuster that seemed largely aimed at stopping a vote on repealing DADT. Senate Majority Leader Harry Reid then said he wouldn’t again bring up the bill that includes the repeal language until after the mid-term elections. And polls suggest the mid-terms will weaken the Democratic hold on the Senate, a development that’s not likely to embolden enough votes to reach 60 during a lame duck session.

Even though it may be slipping away with the mid-term elections, a Congressional repeal “is better for us,” said Leonard. That’s because a “subsequent president could rescind the suspension of an executive action.”

So, essentially, then, President Obama has taken on a role as chief optimist and cheerleader on DADT—and as the guy who will sign the bill that includes repeal language if it ever reaches his desk.

In the meantime, the enforcement of DADT has been in limbo since the October 12 injunction. Judge Phillips has, as of Monday, October 18, not yet ruled on whether to grant DOJ’s request to stay her order. Defense Secretary Robert Gates said on October 13 he thinks the matter should be handled through legislation, but the Pentagon released a statement October 14, saying it would “obey the law.”

Former U.S. Solicitor General Walter Dellinger told MSNBC’s Rachel Maddow that he was certain the request to stay the injunction would be granted “either by the 9th Circuit or by the Supreme Court because the court will not want [repeal of DADT] to go into effect until they’ve had a chance to hear full briefing and argument on the question.”

“The President said that this will end on his watch, and he’s actually moved the ball pretty far down the road to making that happen,” said Dellinger, who was Solicitor General under President Clinton.

Dellinger said the Obama administration “really has no choice but to appeal the case because we don’t want a system where a single federal judge can invalidate an act of Congress.” He suggested people imagine a future date in which someone’s challenging some aspect of health care reform and a district court judge finds it unconstitutional and there’s a Republican in the White House who won’t appeal the decision.

Dellinger said he thinks President Obama should appeal the DADT decision but argue that it is unconstitutional and leave it to the courts.

“We don’t know what the court’s going to hold,” said Dellinger, “so it’s critically important to keep this in the realm of politics and to support candidates who support repeal…. The only sure way to get this done, since you can’t rely on the Supreme Court at the end of the day, no matter what position the Justice Department takes, is to make sure it gets repealed by Congress.”

And if it does reach the Supreme Court, said Dellinger, he thinks the case for striking the law will be stronger if the President succeeds in getting the Department of Defense “fully onboard.”

“He’s playing a very delicate game of trying to get the Defense Department onboard to enhance the chances that it will be struck down while he’s also seeking legislative repeal.”