On DADT, Obama must act

[alcibiades_mystery]

As I'm sure some of you know, I'm probably considered an Obama "cheerleader" around here, one of those people who "blindly support" the President, as the saying goes. Now, needless to say, such charges are bunk, but they color our perceptions of other posters, as do the reverse little slogans. That said, it's certainly the case that the most persuasive and thoughtful critiques of the Obama administration over the last 20 months have come from people criticizing the various LGBTQ-related positions and actions of the administration. I've debated such critics and activists numerous times, and I've often walked away with a different position than when I started. I think the following is the case, as a result of their excellent argumentative efforts: 1) The Obama administration is, at the very least, soft-pedaling LGBTQ issues, and 2) it is doing so for narrowly political - when not utterly cynical - reasons. And that's deeply wrong, and is the greatest disappointment, in my view, for the administration.

As a matter of principle, I do not agree that Obama can dispel either DADT or its enforcement through the stroke of a pen. Or rather, I do not believe that it is correct to do so, even though it is certainly right to do so. These are the arguments I've had with people here that have not changed my position. I think - and will continue to think - that it is exceedingly dangerous for the executive branch to pick and choose which public and properly constituted laws it should enforce. Now, some people will say "Oh, but they didn't prosecute the Bush war crimes, so they clearly choose what laws to enforce!" This is, frankly, a silly point. It's clear that the executive branch has prosecutorial discretion on a case by case basis. It cannot, however, invalidate standing public law by blanket declaration, nor can it invalidate law by barring enforcement by policy, and I don't care whether that law applies to the military and thereby invokes the CiC status or not. It's a deeply dangerous and undemocratic notion. At the end of the day, as despicable as it is, DADT represents the currently existing law constituted by the people through their representatives. The current 80% opposition to it is irrelevant from that standpoint.

Put plainly, I think it is deeply wrong, and dangerous to the extent that it puts the Republic in peril, to allow - in any given case - the executive branch to pick and choose which laws to enforce. And I think we could have much more civil discussion on these boards if people on the other side of the argument saw this position not as mere pom-pom waving, but as, for their interlocutors, a core principle: absolute opposition to the theory of a unitary executive, or to the Schmittian theory of the sovereign exception. Even in those case when you most want to see it happen. Now, people often mock thios position and say "Oh, right, I forgot: Obama doesn't control his own Justice Department!" On this point, to my mind, he doesn't. The executive branch is tasked with enforcing and defending the existing law properly passed by the people's representatives. Bush could not order the Department of Labor and the Justice Department to stop enforcing OSHA regulations, even if he wanted to. It's standing law.

And yet, Obama must act. It is right to do so, even though it is incorrect to do so. It is right to do so even though it is deeply wrong and dangerous to do so. That is the situation we're dealing with here. It is not by any means a no-brainer. It pits a specific wrong committed against fellow citizens against a core principle of our mode of governance. And I think we need to reflect on that as we engage these arguments. I've seen far too many people on both sides argue as if this thing is easy. I don't think it is.

At the very least, I think the multiple court cases now putting pressure on DADT as a policy suggest it is time to call a moratorium on execution of the law until the issue is settled by the courts or Congress (i.e., the proper venue in our mode of governance for settling the matter). At the same time, I think it is proper to pursue the cases such that the matter is settled in the Supreme Court. These are not competing positions. When sufficient legal doubt exists on the constitutionality of a given statute (and that's a high standard that I think we've reached), a moratorium on enforcement prevents specific harms to people until such time that the proper branch can handle the issue. Don't mistake me: I have no doubt as a matter of my own personal politics that DADT was always unconstitutional. It is a disgraceful law. The question has to do with sufficient legal doubt. This is the George Ryan death penalty analogy, and I think we're there, now.

[DemocraticPilgrim]

1. To me the LGBT community need to act 98% Dems voted to repeal it and zero Republicans.

That's high octane reason to elect Democrats across the board, their way out of oppression is only via the Democratic party so it has to be bigger and stronger. I mean let's be real here Christine O'Donnell's in Congress and we could soon understand what they've been through all this time.

[QC]

6. We are one of the most loyal Democratic constituencies.

If everyone voted Democratic like we do, there would probably not be a single Republican holding office anywhere in America.

[old mark]

8. I don't even dare to dream about that!...Be great to try, though!

No republicans!:woohoo:

:dem:

mark

[donheld]

7. That's why "Gay Repulicans" is an oxymoron.

[Bluebear]

9. 'their way out of oppression is only via the Democratic party' - evidently not. nt

[Unvanguard]

2. I have been struggling with exactly that question.

Thanks for this thoughtful post.

The reason it is so tempting here to simply say "Don't appeal"--at least on my part--is that I have doubts as to how successful the anti-DADT litigation will be in higher courts. So if Obama's moratorium is intended to address constitutional doubts, and equality loses at the Ninth Circuit or the Supreme Court, then he will be under pressure to rescind that moratorium, and any future president could do the same. On the other hand, if he just leaves the permanent injunction intact, DADT falls on a long-term basis.

I do appreciate the rule of law problems here, though. I feel a little better about it if I see it as a response to the Senate's utter dysfunctionality, but the thought of, e.g., a Republican presidency using the same approach to defang health care reform is bothersome.

[Motown_Johnny]

3. It is now both right and correct to end the enforcement of DODT thanks to the recent court decision

which is reinstating someone fired because of DODT.



If the courts are going to reinstate people then enforcing that policy makes no sense at all. (not that it made any sense anyways)


It is time, he should do it in the next week or so while the news about that decision is still new.



I don't agree with your view that it is somehow still incorrect to do so, he is commander and chief of the armed forces, if he issues this order then that is that. In my view it is not incorrect to issue the order.

[alcibiades_mystery]

5. The extremely dangerous assumption behind the ciC

argument is that Congress can literally make no laws relating to the military, since thE CiC can simply invalidate any such law by fiat. This is an untenable and undemocratic position. It is, indeed, the chief vehicle through which the unitary executive theory elevates the status of the executive beyond anything even resembling proper democratic government. It opens the door to the worst abuses of monarchism and fascism.

[xchrom]

4. 1st - recommend . 2nd - I think I'm beginning to see winning these cases

In the courts of law rather than through politicians.

We simply wind up being used as fodder while struggling for
Our rights. And that has become a grotesque game. Phony.

I appreciate what your saying - but I now
Belive we have to lift this burden and toss it off ourselves.