Earlier today, I posted a statement from the White House saying that the President has not spoken to the constitutionality of DOMA and “Don’t Ask, Don’t Tell.” We got the statement in response to questions posed at the White House briefing with LGBT media last week about whether Obama thinks DADT and DOMA are unconstitutional. This week, we were informed that “The specific question of the Constitutionality of these laws is not an issue that he has spoken to.”
In fact, the President did address the constitutionality of DADT in an interview last year with Anderson Cooper. I want to thank Michael from LeonardMatlovich.com for pointing this out to us. A video of the interview is here and here’s the transcript of the key passage here:
COOPER: But your — your critics, and even some of your supporters, say, look, you — you could stop enforcement right now of don’t ask, don’t tell. You could defer enforcement until you prod Congress to act.
Why not? Why not act?
OBAMA: Look, I — I have had conversations with Bob Gates, as well as Admiral Mullen, about the fact that I want to see this law changed.
I also want to make sure that, A, we are not simply ignoring a congressional law. If Congress passes a law that is constitutionally valid, then it’s not appropriate for the executive branch simply to say, we will not enforce a law.
It is our duty to enforce laws. I do think that there’s the possibility, though, that we change how the law is being enforced, and — even as we are pursuing a shift in congressional policy.
So, the Obama administration is enforcing DADT because it’s a “constitutionally valid” law. That’s speaking to its constitutionality, and explains why the Obama administration is not only enforcing the law — the Department of Justice is vigorously defending DADT in the courts.
The President thinks that DADT is “discriminatory,” but in a constitutional way (whatever that means). As we’ve noted several times over the past year, previous presidents, from Ronald Reagan to Bill Clinton to George W. Bush, have refused to defend laws they considered unconstitutional.
And, before anyone starts telling us that the Obama administration is enforcing and defending DADT because it’s somehow different and better than the administrations that came before it, don’t. The Obama administration has done the same thing the other administrations did. Team Obama doesn’t defend laws that are considered unconstitutional:
As we have shown, over and over again, the Obama administration is more than happy to look the other way on laws that don’t agree with their “policy preferences.” I’m not saying that they go to court and argue against the laws, I’m saying that they simply ignore them. The gay community and our allies are simply asking the Obama administration to help us strike down DOMA and DADT in court – we’ve never asked them to simply ignore the law. But that is exactly what they do when other communities, other administration policy preferences, are in play.
A) Last October the Obama administration outright ignored federal law regarding marijuana because it was at odd’s with the administration’s policy preferences with regards to medical marijuana.
B) Then there is President Obama’s use of signing statements to simply ignore laws passed by Congress.
C) Then there’s this from the NYT just two months ago:
[T]he approach will make it harder to keep track of which statutes the White House believes it can disregard….
[T]he administration will consider itself free to disregard new laws it considers unconstitutional….
Mr. Obama nevertheless challenged dozens of provisions early last year. The last time was in June, when his claim that he could disobey a new law requiring officials to push the World Bank and the International Monetary Fund to adopt certain policies angered Congress….
Last year the Obama administration disregarded a statute that forbid State Department officials to attend United Nations meetings led by nations deemed state sponsors of terrorism. Congress has included that restriction in several recent bills.
D) Then there was the time that the Obama administration refused to enforce immigration laws because they didn’t comport with the administration’s policy preferences.
We keep hearing that DADT and DOMA are discriminatory. But, the Obama administration keeps vigorously defending those laws in Court. DADT is still the law of the land — and it will be for awhile. Servicemembers are still being discharged for being gay. So, this has real life implications.
The Obama administration won’t disregard DADT and DOMA. We know that all too well. (But, that’s what a fierce advocate would do.)