• Obama is fighting to retain DADT. Why?

    I’ve been wondering this myself. Finally someone–turns out Kevin Drum–explains.

    Officially, they say it’s because they feel obligated to defend all properly enacted federal laws as long as they’re even arguably constitutional. If that tradition were to die away, and presidents simply declined to enforce laws they disagreed with, chaos would ensue. […]

    I suspect it actually has more to do with past promises Obama has made to various DADT stakeholders, especially those in the military. Basically, the deal he made with Secretary Gates and the Joint Chiefs is this: I’ll let you control the process, write the rules, and move things along at a deliberate pace. In return, you’ll promise not to publicly oppose repeal. The tradeoff is simple: DADT repeal will take a little longer, but it will end up having the support of the military leadership and will therefore be less contentious and more permanent. This is a win for both Obama and the military.

    For better or worse, deals like this are just the way politics works. If Obama chose to drop the court case and let DADT be abruptly repealed before the military had its ducks in a row, the Pentagon leadership would probably take it as a personal betrayal by a commander-in-chief who had given his word on how this would all play out. That’s not something a president can afford. (Bold mine.)

    I buy that, well all except the part I put in bold type. Maybe Drum is right that “chaos would ensue” if a president let a district court’s ruling strike down a law. But is that self-evidently so? We know that chaos would not ensue if the Supreme Court does so. The article/post/whatever-it-is that Drum cites itself says,

    John Aravosis, author of AmericaBlog, noted one example from 1996 when President Clinton preemptively refused to defend in court a proposed law that would have banned HIV-positive soldiers from the military because he believed it unconstitutional. Aravosis argues Obama can and should now do the same.

    “We were told that all hell would break loose if it ever happened,” he wrote of Clinton’s refusal to support the law. “All hell didn’t break loose, a later Republican president didn’t retaliate, and locusts didn’t descend from on high.”

    So, I’d like to know, why is it we think all hell would break loose now? Having asked that, in this instance we need not answer it because, as Drum points out, here Obama has other good reasons to fight the decision. But for the benefit of our children, can we come to some agreement as to whether presidents really must defend all laws reasonably presumed to be constitutional?

    • I think that Obama has the politics correct here. Spending an extra year to get the military on board is a small price to pay.It may make it less likely for attempts to undo the decision by judicial decision. Granted, it has been 20 years since I got out of the service, but gays were hated by most guys back then.

      As to the larger issue, I think that a president can achieve a policy end through a court decision, but it is not optimal. A decision made in that manner is subject to being undone in a similar manner. It may fire up the opposition to pass a law to change it.


    • Let’s be pragmatic; Obama will not be King for life, but will leave office no latter than 75 months from now. If Obama ignores the court ruling, and thus the law, the Congress won’t change the law, and in 7 years or 10 years or 20 years, some president will use DADT for political purposes.

      If by chance Congress doesn’t act before the unlikely case of the Supreme Court ruling against the law Congress passed, then the law is dead pretty much forever. But the fastest way is for Congress to change the uniform code of military justice. And the case law for civilian courts ruling on military law isn’t really that favorable to those opposed to DADT.

    • According to Article II Section III, “he shall take Care that the Laws be faithfully executed,” This statment indicates that regardless of personal opinion, it is the duty of the elected head of state to both obey and enforce the legal code of the United States. A legitimate quandry might arise when and if this stricture appeared to contradict another presidential mandate from Article II. However, this type of legal grey area is typically a matter handled by the courts rather than executive branches of government.

      An instructive case study of this issue might be President Andrew Johnson’s impeachment. After Lincoln’s assassination, some members of the Republican party believed that newly freed slaves should become immediate, fully enfranchised citizens before states could be received back into the Union. Congress overcame a presidential veto to enact such a law and many others that disagreed with Johnson’s more leniant views on Reconstruction. One such law was the Tenure of Office Act, which Johnson challenged when he attempted to replace the Secretary of War without congressional consent. This violation was only one of the articles of impeachment brought against Johnson, who escaped conviction by one vote.

      Now, the current situation with DADT is one where we’re discussing the merits of presidential inaction rather than action, but I think the Johnson situation has other parallels that are instructive. In summary, I think that under the current Constitutional framework we live under, the more correct position for the President is to defend the law and leave the decision to the courts, after which he may clearly fulfill his obligation to uphold the ruling. If we as a nation feel this position is flawed, the Constitution may certainly be amended to allow the President more explicit leeway in this area.