DADT and Legislating from the White House

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.