Newsweek on Obama defending DADT: ‘Most experts in constitutional and military law say he has other options’

Read this Newsweek article. Read all of it.

For the past year and a half, since the DOMA brief controversy back in June of 2009, John and I, along with others, including Richard Socarides, have been arguing that President Obama does not have to defend DOMA and DADT. We’ve been derided by every apologist, political neophyte and job-seeker around. But, the DADT situation has forced a broader discussion of this issue. And, it turns out, we were right. Obama has options beyond simply defending DOMA and DADT in court.

Newsweek lays it out in detail. The bottom line is that President Obama doesn’t have to defend DADT. He has options. And this helps clarify why the White House will not answer the question of whether DADT is unconstitutional — if they admit it’s unconstitutional then they don’t need to enforce it. And they want to enforce it. (See Gibbs refuse to answer the constitutional question here and here. We’ve been trying to get that question answered since July.)

For whatever reason, Team Obama is making this situation worse than it has to be:

Is Obama’s Excuse for Not Repealing ‘Don’t Ask Don’t Tell’ Legitimate? 

President Obama claims he must defend and enforce the ban on gays serving in the military, even though he opposes it. But most experts in constitutional and military law say he has other options.

There are two different arguments for why Obama could choose not to enforce the law. The first one: he could say it was unconstitutional. At the time that DADT was passed, it was constitutional because there was no Supreme Court precedent establishing that homosexual relationships are protected under the implied privacy rights of the Bill of Rights. Then, 10 years later, the Supreme Court ruling in Lawrence v. Texas overturned an anti-sodomy statute on the grounds that it violated the privacy rights of gay couples. Since then, laws that impinge upon the sexual-privacy rights of gay couples are presumed unconstitutional if they have no rational state interest to justify them. “Since Lawrence v. Texas, you can no longer discriminate against gays without reason,” says [Diane] Mazur [a former Air Force officer who teaches law at the University of Florida]. “The constitutionality of ‘Don’t Ask Don’t Tell’ has changed since Congress enacted it.” Given that top military leaders have said that DADT is harmful to the military, Obama could have simply announced that, absent the state interest to justify DADT, it is now unconstitutional and will no longer be enforced.

Obama’s other option: simply using his executive power to decide how the laws will be, or won’t be, executed. So Obama could simply order the military to stop applying the law, or to use it much more narrowly and infrequently. “There are a lot of laws on the books he doesn’t rigorously enforce,” notes Geoffrey Corn, a military law expert who teaches at South Texas College of Law. “The courts have recognized that while Congress has full authority to pass laws, the president has authority over when to enforce laws,” says [Jonathan] Turley [a constitutional law expert at George Washington University]. Many criminal statutes, for example, are often unenforced and prosecutors have a lot of discretion on when to bring charges and what sentence to seek.

The president would be on strong footing in this case because he has especially wide latitude in interpreting laws that govern the military. Congress clearly was acting within its authority under Article I of the Constitution to “make Rules for the Government and Regulation of the land and naval Forces.” Some experts would argue that President Obama would be trampling that right if he chose not to enforce DADT. But others note that the president has historically been granted a lot of freedom by Congress and the courts to manage the details. “Traditionally, the executive is given latitude in putting meat on the proverbial bones,” says Corn. “There are certainly options the president could take with an executive order, particularly as commander in chief of the military,” says Mark Zaid, a lawyer in Washington, D.C. who frequently represents members of the military. “From a strict constitutionalist standpoint, a presidential order contradicting a law could lead to a judicial battle. But courts defer to the president as commander in chief.”

Obama could also do a “stop-loss”:

If Obama didn’t pursue one of those permanent solutions, he could temporarily let gays serve while waiting for the courts or Congress to act by using his stop-loss power, which was explicitly granted by Congress in 1984 to override military discharges if troops are needed. “Stop-loss authority is a statutory authority enacted by Congress,” Mazur explains. “It gives the president authority to suspend any law that involves the discharge of service members. In times of national emergency there might be lots of reasons.” Given all the accounts of valuable servicemen and servicewomen, such as Arabic translators, being discharged under DADT, it would seem a fairly straightforward case for Obama to make. That would buy a couple of years for Congress to act or the current legal challenge to reach the Supreme Court. “The president has not openly discussed why [he is not using stop-loss],” says Mazur. “Typically, he has denied that he has any such authority and no one has really pressed him as to why.”

It’s been fascinating to see so many legal experts outside of the LGBT world weigh in. We’ve gotten so used to hearing the usual arguments from the usual apologists. The way the Obama administration is (mis)handling the DADT issue is now getting much more intense scrutiny.  And the scrutiny is proving that those of us who said the President didn’t have to blindly enforce DADT and DOMA were right.

I’m not sure if the political geniuses at the White House get it, but this DADT debacle is making the President look bad. And, all those Obama apologists have enabled it.

And I hope reporters will continue to ask whether Obama thinks DADT — and DOMA — are unconstitutional. Since Gibbs won’t answer, maybe someone should ask Obama himself. He is, after all, a constitutional law scholar. He must have an opinion. And if he continues to refuse to give one, it’s time for reporters to ask why.

On October 27, 2010, Joe was one of five bloggers who interviewed President Obama. Joe is a DC-based political consultant with over twenty-five years of experience at both the state and federal level. Joe has managed political operations and legislative efforts for both candidates and issues-based organizations. For seven years, he was the Director of State Legislation at Handgun Control, Inc. He served as that organization's first Political Director during the 2000 cycle. Joe is a graduate of the University of Maine School of Law. In addition, he has a Masters in Public Administration from Lehigh University and received his B.A. from the University of New Hampshire. Joe also has a fun dog, Petey, a worthy successor to Boomer, who got Joe through eight years of Bush and Cheney. Joe likes to think he is a world class athlete having finished the 2005 Chicago Marathon in the time of 4:10. He has completed six other marathons as well -- and is still determined to break the four hour mark.

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