Maybe it's better to repeal DADT through congress than with an executive order?

[TonyMontana]

It seems like that's the big debate around here. Why doesn't Obama simply sign an executive order and repeal Don't Ask Don't Tell?

Maybe Obama has a good reason to go through congress instead. Is there something I don't understand about the law that might make it a better idea to actually have a law passed through congress instead of just signing an executive order?

Or perhaps there is a political reason for Obama taking this route. Maybe it's to force Republicans to take their stand on the issue, to embarrass them, if you will. I'm pretty sure polls show that the majority of Americans now oppose Don't Ask Don't Tell. Maybe Obama is trying to expose the Republicans for the bigots that they are. Force them to filibuster.

I don't know. It seems to me that Obama always does things for a reason, and I refuse to believe it's because he himself is afraid of the political ramifications or that he's against repealing DADT. Obama is probably the most gay friendly president to ever have been elected.

[sinkingfeeling]

1. It has to go through Congress. An executive order cannot repeal an act of Congress.

[Warpy]

3. :However, the judiciary can overturn it

so it will be fascinating to see what happens now that a judge has declared it unconstitutional.

DADT is only loved by preachers and a few repressed brass hats. It's not working, has never worked, will never work. Too many trained people have been let go because of it. It's not cost effective and does nothing for morale.

[LonePirate]

9. I have more faith that the courts will end it before Congress or Obama does.

The Republicans in control of the Senate will not let it pass. Reid will eventually remove it from consideration while Obama sits on his hands like he has done for the past 20 months. It is a sorry state of affairs and a sad day for progressives that it has come to this.

[msanthrope]

18. DADT challenges already lost in the courts. It's repeal or nothing.

Pietrangelo v. Gates--was the latest. (SCOTUS refused to hear)

[NoNothing]

4. Correct

However, he can certainly block its enforcement.

[msanthrope]

14. Actually, he's done what he can, through Gates....

The DADT has two parts---

One is "Don't Ask." Under DADT, the Secretary of Defense is given latitude in how the DOD 'asks.' Gates, as reported by the media this Spring, issued new guidelines meant to stop inquiry...

http://www.prospect.org/csnc/blogs/tapped_archive?month=03&year=2010&base_name=gates_issues_new_guidelines_fo


Second, is "Don't Tell." Because of the finding of specific harm of 'homosexuality' within DADT, if the services become aware of a person's orientation, they MUST act. They don't get a choice, per the statute.

that's why repeal must happen---in part, it's a repeal of the 'finding' contained within the statute.


Congress in the 90's set up a miserable statute...Thurmond and Helms knew what they were doing. Repeal or bust.

[NoNothing]

19. He could be bolder

The President is sworn to uphold the Constitution, as are our soldiers. As CIC of the military, he could simply order commanders not to process separations initiated under DADT due to its unconstitutionality, and if anyone wants to challenge it in court, tell them to bring it on.

Unfortunately that is not his style. He is a professor, not a warrior, so he will do it by the book or not at all.

[msanthrope]

24. He can't order people not to follow a statute of Congress....

That is an impeachable offense.

The Constitution DOES NOT allow the Executive Branch to decide the constitutionality of laws passed by Congress--that's left to Art. 3 courts.

What is so disgusting and insidious about DADT is the specific finding of 'harm' enshrined in law....essentially, Congress must fix their own fuckup here....

And I dispute you, that he's not a warrior...

look, he's taking on the most conservative right-wing court this country has ever seen, and he's crafting a legal stategy that professors and lawyers think has an actual shot. That takes courage.

[NoNothing]

31. Really, where in the Constitution

Does it say that ONLY Article 3 courts may determine constitutionality? Does that mean that Congress should disregard constitutionality when it passes laws? Why then even mention the Constitution in the President's oath of office?

It is our tradition that the Courts settle *disputes* of constitutionality. I am saying that the President can and should CREATE a dispute ON PURPOSE. He has that power.

And where did I say the President is not courageous? I said he is a Professor. You think Professors are cowards? No, I simply meant that he has weapons he will not use, because he cares more about the "bigger picture" than the specific issue.

[msanthrope]

34. "the President can and should CREATE a dispute ON PURPOSE."

Which President do you mean?

[Winterblues]

25. He can refuse to appeal the Court ruling that said it was unconstitutional..

A Law can not stand that is unconstitutional...

[msanthrope]

30. Which case are you speaking of? n/t

[Winterblues]

42. Two weeks ago the Ninth Circuit Court

http://voices.washingtonpost.com/federal-eye/2010/09/dont_ask_dont_tell_the_legal_o.html

The U.S. Senate failed to move on "don't ask, don't tell" (at least for now), so attention is turning to two federal courtrooms out West.
<snip>

A federal judge said he plans to rule on Friday in the case of Margaret Witt, a discharged Air Force flight nurse discharged for being gay who wants to be reinstated to the Air Force Reserve.
U.S. District Judge Ronald B. Leighton said Tuesday that he may have no choice but to reinstate her, because of orders he received from a higher appeals court that sent Witt's case back to him for reconsideration.
<snip>

The Ninth Circuit's decision also complicates another federal case in California, where District Judge Virginia A. Phillips ruled two weeks ago that "don't ask, don't tell" is unconstitutional. The Justice Department has until Thursday to appeal the decision and has yet to indicate how it plans to proceed.
Gay rights advocates want the Obama administration to let the ruling stand, figuring it's a good way to end the discharges of gay troops if the Senate won't act. Conservative activists once again say the government should have appealed the Witt case since it complicates the California case.

[msanthrope]

47. Well, the Witt case wasn't appealed, according your quote.

As for Judge Phillips case, I expect the SG to punt, since Reid has indicated he will reconsider it before the Congress is over.

But given your quote, if the admin isn't appealing Witt, what does that tell you?

[TheWraith]

36. PRECISELY!

All the people who insist that all Obama has to do is issue an order to ignore it seem to forget that we just spent about a decade having trouble with the Executive Branch deciding on it's own what laws to follow and what ones to ignore. It's no more legal for Obama to order DADT overruled than it was for Bush to overrule laws against torture. That may suck for us, but it's the truth.

An executive order cannot repeal statute law--and it shouldn't. Congress is where this thing started, and Congress is where it needs to die.

[kenny blankenship]

2. That WAS the big debate - or maybe the big excuse I should say

Now the ball is in his court and nowhere else.

[benddem]

5. The president

can order them to stop the discharges...but he absolutely cannot just end it. Can you imagine the Republican and FAUX furor, the demonstrations the mess if he did it? He probably recognizes (as do I) the big problem with all the fundy military chaplains.

[kenny blankenship]

7. Obama "can order them to stop the discharges"

Thank you for agreeing with me.

[msanthrope]

10. Explain to me, how, precisely, President Obama can stop the discharges?

As a matter of law, how does the President override the specific finding of harm from 'homosexuality' contained within DADT, by Executive Order?

I ask because if the Serviceperson's Legal Defense Network hasn't found a way for him to do that--and they support his repeal plan--I'd like to know just what they are missing.

[zipplewrath]

27. DADT provides the authority

It was written right into the law, that the CIC can suspend expulsions during times of need. If he had done so right up front (as he promised) it could potentially have resulted in 8 years of an explusion free military. By the time 8 years had passed, effectively a half a generation of gays would have been in the military, free from investigations, and potentially in command positions. It already is the case that much of the enlisted personel thing the law is dumb. After 8 years, it would "just be the way it is".

Instead, we have the GOP able to work this up as an election issue for their base every 2 years.

[kenny blankenship]

32. But that would take balls.

[msanthrope]

33. Wrog Statute--you are thinking of Stop-Loss, but 'homosexuality' is specifically excluded from

stop loss.....so is pregnancy, and 8 other conditions of being.

While what you posit is an interetsing theory, no one has ever been able to explain how you override the exemptions to stop-loss, while addressing the specific finding of 'harm' in the DADT. In effect, you can make a better legal argument that pregnant women should be recalled, before gays, given the DADT findings....

If you have a way of overriding BOTH stautes, please tell us.

[zipplewrath]

37. No, DADT

From the act itself.

(e) Rule of Construction.— Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that—
(1) the member engaged in conduct or made statements for the purpose of avoiding or terminating military service; and
(2) separation of the member would not be in the best interest of the armed forces.

[msanthrope]

43. oh jeebus---read what you quoted!!!!

The clause you are citing as "proof" is linked by "and" to the PRIOR clause and refers to members who have falsely claimed they are gay.

Then the DoD has the option of retention. Both clauses must be fulfilled.


You higlighted the wrong part--

e) Rule of Construction.— Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that—
(1) the member engaged in conduct or made statements for the purpose of avoiding or terminating military service; and
(2) separation of the member would not be in the best interest of the armed forces.

[zipplewrath]

46. I'm not sure that's the conjuctive "and"

Not a lawyer, but my understanding is that isn't the form of and in the sense of "both simultaneously". My understanding is it is the "one or the other or both".

[msanthrope]

48. I am a lawyer. And I have a video that will help you with your statutory construction.

http://www.youtube.com/watch?v=mkO87mkgcNo

[zipplewrath]

49. Funny

You sure you're a lawyer?

[msanthrope]

50. "I'm Just a Bill" inspired me to go to law school. n/t

[zipplewrath]

51. Where?

Is this where you went to law school?

[sinkingfeeling]

6. No executive order can repeal a passed US law. DADT is under the

US code TITLE 10, Subtitle A, PART II. CHAPTER 37, § 654, meaning it's an enacted law.

[Name removed]

8. Deleted message

Message removed by moderator. Click here to review the message board rules.

[msanthrope]

11. Explain to me how he stops the discharges.

As a matter of law, please explain how and Executive Order overrides a Congressional Statute.

Seriously....since the Serviceperson's Legal Defense Network can't find a way, I'm really interested in hearing YOUR method.

[kenny blankenship]

17. FFS Obama is Commander In Chief DURING A GODDAMN WAR

If the war situations was dire in HIS ESTIMATION ALONE, Obama could confiscate all your fucking property for the duration, and press your kids into military service by EO, if he felt like it. Not without ramifications true, but also without immediate hindrances either.

Obama can issue an EO stating that the division and distraction of antigay witchhunting within the ranks of the military while it is engaged in a war or two outweighs the oh so terrible harm of having gay people serving in uniform, and that for the duration of the war, until he says otherwise, no funds are to be wasted on enforcement of DADT.

Republican Presidents defund statutory creations of Democratic Congresses all the time.

[msanthrope]

22. You still haven't explained 'how'--other than the President acting by fiat.

Seriously--How does an Executive Order override a Congressional statute?

Specifically, here in DADT, you have a Congressional finding of 'harm'. How does Obama override that by EO?

If the Serviceperson's Legal Defense Network couldn't figure out a way for President Obama to do it, what makes you think you can?

(You might want to start with Youngstown, and work your way forward.)

[kenny blankenship]

23. Actually I explained that he can forbid money & manpower to be spent enforcing it

time honored tradition and prerogative of the Executive even when dealing with things less outside his exclusive purview.

You're proved one thing well: all you're interested in doing is making excuses.

[msanthrope]

26. Well, now you are talking about something very different than what you started with....

You started talking about an EO. You seem to have conceded the point that an EO won't work---

So now you seem to be suggesting that Obama simply choke off enforcement--so I'm gonna quote my post that indicates he's already done what he can about that--

"The DADT has two parts---

One is "Don't Ask." Under DADT, the Secretary of Defense is given latitude in how the DOD 'asks.' Gates, as reported by the media this Spring, issued new guidelines meant to stop inquiry...

http://www.prospect.org/csnc/blogs/tapped_archive?month...


Second, is "Don't Tell." Because of the finding of specific harm of 'homosexuality' within DADT, if the services become aware of a person's orientation, they MUST act. They don't get a choice, per the statute.

that's why repeal must happen---in part, it's a repeal of the 'finding' contained within the statute.

Congress in the 90's set up a miserable statute...Thurmond and Helms knew what they were doing. Repeal or bust."


Kenny, I'm interested in getting this thing repealed and past judicial scrutiny....not excuses. If the Serviceperson's Legal Defense Network says this is way to go, I believe them.

[kenny blankenship]

29. Jesuschrist NO, NOT AT ALL. The EO would direct the military to suspend funding

just as I indicated. Just forget it. Talking to people like you is a huge fucking waste of time. All you want to do is excuse inaction.

[TheWraith]

40. Please don't scream at other people because you don't understand the legal framework.

Despite what it may have seemed during the Bush years, there's a large framework of legal restraints specifically to prevent the POTUS from acting unilaterally, and obeying those laws means going through processes that we might not like, but are still necessary.

[msanthrope]

45. Thank you. The Unitary Executive isn't good under any President. n/t

[zipplewrath]

28. The law allows him to suspend explusions

It won't overturn the law, just suspend its enforcement.

[msanthrope]

35. "homosexuality' is specifically excluded from stop-loss. You are conflating two different statutes.

[zipplewrath]

39. You aren't reading DADT.

Read the actual statute:

http://www.law.cornell.edu/uscode/10/654.html#b

[msanthrope]

44. Um, Dude, Stop -Loss isn't DADT. You are conflating two statutes. n/t

[sinkingfeeling]

16. Really? Are you a constitutional attorney? Do tell how does a President override a law?

If the law is in affect, as is DADT, than the military must obey it.

[Name removed]

21. Deleted message

Message removed by moderator. Click here to review the message board rules.

[MineralMan]

41. I don't think that kind of attack is allowed here.

[MineralMan]

12. The very best way is through the federal courts. If the finding

that DADT is unconstitutional stands, that will end it once and for all. The second best way is for Congress to repeal the law, but that won't prohibit a new DADT law from being enacted the next time the Republicans control Congress. The worst way is for the President to order the Military to stop discharging GLBT personnel. That would create something of a constitutional crisis, since a law passed by Congress is still in force. For the President to maneuver around that law would create a situation that conflicts with separation of powers, and would guarantee a long, drawn-out battle that would be guaranteed to end with the SCOTUS ruling against President's executive order. That would also lead to even further obstruction from the Republican side on other important issues.

DADT was bad law. It violates our constitutional guarantee of equal treatment under the law. Ending it has proven to be difficult. It's a matter of percentages, though. While the President might be able to temporarily end the practice, I'd predict that the current SCOTUS would slap him down immediately with an order, then permanently a short time later. If Congress can't get this passed, it's going to be up to the courts.

Same with same-sex marriage. The very best solution would be a SCOTUS decision to let the 9th Circuit's decision stand without hearing the arguments. That seems pretty likely to me right now.

People are right to be angry with the situation. However, the answer is to find the very best solution for that situation, not an expedient one that will be thrown out almost immediately. Constitutional crises do not solve problems. They only worsen them.

[Starry Messenger]

13. That isn't the debate.

We want Obama to use executive powers of stop-loss to end discharges while the repeal process goes through Congress. No one wants Obama to repeal with executive orders.

[msanthrope]

15. Stop-loss specifically excludes 'homosexuality'. and 'pregnancy' And 8 other states of being.

I've heard that legal theory before--it was published by a political science professor....

Which is why the SLDN--actual lawyers---support repeal.

[annabanana]

20. Congressional action should be considered the nail in the coffin. . n/t

[Sheepshank]

38. it's got to be an all or nothing

I read upthread that Obama could suspend funding. It DOES NOT ELIMINATE THE DISCRIMINATION. That is simply not good enough.

If this law cannot be eliminated via the political process....and I'm not sure that is the best way. Making it a constitutional issue via the courts will finally put that nail in the coffin. No amount of political/religious gnashing of teeth will change that descrimination label once applied vua the courts.

It would have been better to have DADT repealed now, yesterday. But if an EO can stop it, another can re-establish it. Gawd I hate that repealing DADT even has to be debated

[Warren Stupidity]

52. Maybe it is better to drive through a brick wall rather than around it?

Or then again, maybe not.