DADT and Legislating from the White House

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Confession: At first I was sort of conflicted about Adam Serwer’s suggestion that the president repeal DADT by executive order. Obviously I recognize that the military’s policy of discriminating against its LGBT members and forcing them to live in secret is a monumental moral outrage. And I also recognize the harm done to national security by a law that demands the senseless ostracizing of capable and patriotic Americans.

So what gave me pause? Well, just two days ago I wrote a whole column decrying the imperial presidency. Like Gene Healy, I think it’s high time that we put an end to the executive branch’s practice of legislating when they don’t want to go through the legislature. I’m not entirely unsympathetic to the notion that sweeping executive orders can be necessary in times of great urgency, but I don’t know the math for calculating that urgency threshold.

Lucky for us, Serwer addresses those concerns:

During the Bush years, liberals complained about his “imperial presidency,” and so the idea that Obama should simply end the policy by fiat would seem hypocritical. But the use of an executive order to end a policy a majority of Americans, including conservatives, want to end, is no more undemocratic than Republicans’ use of procedural maneuvers to thwart an up or down vote. Republicans holding the legislative process, and the fundamental rights of gay and lesbian servicemembers, hostage to their own homophobic prejudices, would still be the greater act of tyranny.

Here’s the thing: legislation by executive order needs to end. But it’s not a problem that exists in isolation. I would argue that a large part of the reason why the modern president is so powerful is because Congress has ceded him ground, both consciously and inadvertantly. They’ve done it consciously by passing legislative abominations like the PATRIOT Act, yes, but they’ve also done it by abiding by parliamentary rules and decorum (mostly in the Senate) that have paralyzed them on most weighty matters. The president has broad latitude to legislate in large part because the people who should be doing it aren’t.

That’s the case here. At this point, Congress should be able to repeal DADT. Were there not a 60-vote threshold in the Senate, they would have already. So in this case, I think an executive order is morally permissible — even required. As queasy as I am about the unitary executive, these are the rules of the game right now. There exist certain moral imperatives which we’re required to act on using any means those rules afford us.

If Obama takes Serwer’s advice, then we’ll come back to the issue of executive orders after he does so. But any attempt to limit the president’s power to set policy must be accompanied by an expansion of Congress’ ability to fill the void.

DADT and Legislating from the White House
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19 thoughts on “DADT and Legislating from the White House

  1. Would you have opposed Truman’s racial integration of the military by executive order? That decision was not popular either in the military or in the nation as a whole.

    If you think that popularity really should determine the propriety of an executive order in the face of a do-nothing Congress, it would seem you are obliged to say that you’d have opposed it.

    My own view is that outside of funding, treaty obligations, and declarations of war or peace, the president ought to be able to handle personnel matters and other day-to-day military business all by himself. It’s at least a plausible reading of the Constitution, I think.

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      • Yes, you did, but now we’re one step further down the decision tree. If DADT were a popular policy, and if everything else were the same, would you still be calling for the executive order?

        The situation then would be identical to Truman’s — military segregation was popular, and Congress wasn’t about to act on it. Truman did anyway. What say you?

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  2. Can I simply ask that everyone who bags on Obama for not ending Don’t ask Don’t Tell bag on republicans harder for FILIBUSTERING THE REPEAL that the president got through the house already. A feat that required all of the republicans to be on board.

    Seriously shouldn’t republicans be taking the heat here? Especially prior to the election just had.

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    • After we do that, I’d like to put in a request that we might acknowledge that the democrats had the White House, Congress, and Senate from 2009-2011 with nigh-unfilibusterable numbers.

      Then, after that, we can bag on Republicans some more.

      Then we can mock the Democrats some more.

      Then we can talk about the Republicans being homophobes.

      Then we can talk about the good game the Democrats talk whenever they aren’t in power.

      Then, I suppose, the floor will be open to anybody who wants to say “but what about the Republicans?”

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      • Jay, you know as well as I that 41 and 40 are a huge difference when we are talking about the senate. Nigh filibuster proof is a binary thing, you are or you aren’t. The filibuster is broken and is a huge benefit for entrenched interests who already have power.

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        • But they didn’t even try, Guy.

          They didn’t even try.

          I mean, sure. We all know that the Republicans would have held together the way they did on the Health Care Bill that got passed, but maybe they would have broken like they did on the whole Closing of Guantanamo thing that they broke on.

          I mean, we all know that the Republicans have a party unity going on that the Democrats only dream of.

          But it still might have been nice to see them try.

          Hey! Maybe we could then blame the election results on the homophobia of the teabaggers!

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          • Lets look at how people responded. The left turned to a circular firing squad over it and talked about shutting down the GAYTM. The media blamed the democrats and so did Jason. Nowhere did anyone make the republicans pay, not even at the grassroots level they all decided to attack the guy on their side instead of the people holding them down.

            This is deeply weird that a party filibusters in against an issue that has 70-30 support on a defense bill and the people everyone yells at are the other guys. WTF.

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            • Instead we now have this weird dynamic where the Log Cabin Republicans are challenging the law, the activist judges found it unconstitutional, and Obama is challenging the decision.

              Whose fault is this?

              The Republicans.

              Dude, if you want to support a completely impotent party, may I instead suggest the Libertarians? It’s just like the Democrats except you’re allowed to have a sense of humor.

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            • What do you want me to do, vote against them twice?

              I’ve called out the rank homophobia of the Republican Party again and again, in this very space and elsewhere. I’ve admitted, on this thread, that the Republicans are also to blame.

              As to the Democrats, I didn’t blame them as a party, but I did blame Obama and Reid. I think that that’s more than fair, because either of them could probably have stopped DADT. And yet neither of them even tried.

              So I’m left with a choice on this issue — do I go with a political party that hates me and sees no place for me in American society? Or do I go with the one that will gladly take my money and do absolutely nothing for me, even when they have the chance and can’t be stopped?

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    • Yeah, of course, if you want it repealed, you should be outright opposed to the Republicans on this issue. However, there were plenty of people who voted for Obama because he said, while campaigning, that it was time to do away with the policy and he would do so if elected. The Republicans mostly promised to oppose repeal and Obama promised to repeal the policy. Is it safe to say he was lying? And, if so, wouldn’t that be more disheartening to his supporters than the Republicans who have taken the position they promised to take?

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  3. It seems to me that it wouldn’t be stepping outside of the President’s authority to overturn Don’t Ask Don’t Tell by executive order. Here’s my reasoning:

    1) The President is given the authority as Commander in Chief to make any policy within US law regarding the military.
    2) Congress passed a law restricting the President’s authority on this issue by implementing Don’t Ask Don’t Tell.
    3) A Federal District Court ruled that the law was unconstitutional, and placed an injunction on enforcing the law.

    Now, if the President of the United States used his authority over the Justice Department to decline an appeal, or if the President waited until the appeal was exhausted (risking that the appeal might succeed), then the legal restriction would no longer be over the President. It would once again return to being a military issue, and as Commander-in-Chief of the military, this is precisely what Executive Orders are supposed to be.

    Resisting the “imperial presidency” doesn’t mean that the President can’t change anything; the President can change, by executive order, anything within his authority under the separation of powers. On the other hand, the creation of internment camps by executive order exerted direct authority over people outside the military, and thus was outside the separation of powers.

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    • GWB’s detainee policy also seems to have violated our treaty obligations and the Constitution itself. Those are limits that the president must respect in the exercise of his discretionary powers. They present no obstacles to ending DADT.

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  4. Unrelated directly to DADT, but is there a case to be made here that we just have too many federal laws on the books period? Is the reason it “seems” like the power of the President has increased – when in fact it has “not” – because as the executive he can simply pick and choose which laws to enforce and how to enforce them. If we ever had an openly authoritarian President (which we probably won’t anytime soon since it would conflict to such a degree with American values as to be effectively unimaginable although the W.O.T. has certainly proven its ability to undermine all that), I don’t think it would be terribly difficult to work with existing law and effectively enslave us all. Is this a fair portrait of how executive power functions in the 21st Century? Basically the President chooses not to be a dictator but reserves that right?

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