Should President Obama issue an Executive Order to halt dismissals of Gay Troops?

[sabrina 1]

I have posted on OP with the results of a study by Military Law Experts that the President has the authority to issue and Executive Order based on three legal bases here: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9318975

Taking that study and the fact that the American people overwhelming support ending DADT, should the President do so now?

[Unvanguard]

1. The best option is legislative repeal. If that fails again, he should end it by executive order.

This needs to end, and should not be dragged on past the end of this Congressional session.

[BeFree]

2. Take it to the courts

Let the court do what should be done.

The military is like a giant hornets nest that Obama doesn't need to be poking anymore than he is now by his pulling troops out. You know they hate Obama for that, right?

[Yeshuah Ben Joseph]

3. The courts have already decided

They said to end this ridiculous policy.

[BeFree]

7. Not the SCOTUS. Not yet

And SCOTUS is the rule. Once SCOTUS rules, politics is out the window.

[Yeshuah Ben Joseph]

9. Do you REALLY want Fat Tony "Opus Dei" Scalia involved in this decision?

How do you suppose Joseph Ratzinger would order him to rule on it?

[Poll_Blind]

17. See, this is a concern of mine. I've read a couple of articles on why...

...Obama is appealing the decision and in at least one of those and also here on DU, I have seen that method lauded as the "3-dimensional chess" approach, which forces responses from higher and higher courts until invariably it reaches the Supreme Court.

Now, what nobody (except for you) seems to want to dwell on for any length of time is what way the Supreme Court would actually come out on something like this. Which I think is a goddamned important question given the makeup of the SCOTUS right now- and I think your fear is well-grounded.

The faint promise that he would, as a "nuclear" option in case the Supreme Court ruling goes south, override it with an executive order is just that: Both faint and a promise.

PB

[sabrina 1]

25. Not only that, but I just read in an OP on DU by Hissypit

that the DOJ doesn't have to appeal the ruling and that this has happened before, during the Clinton administration. When a court ruled that barring people with HIV from being in the military was discriminatory, the Clinton Administration did not appeal it.

If this DOJ does the same thing, then the judge's ruling will stand for at least the next two years and maybe six. By that time, it will have become accepted and no one will want to go back and change it. The rank and file in the military will have experience no other way also.

So if they want to play several dimensions of chess, maybe the best way to do that is to not appeal this case and for the president to issue an EO to halt dismissals of gays from the military. Six years from now it own't even be an issue.

[Tx4obama]

4. Congress will vote soon on the repeal of DADT in the Defense Appropritions bill.

That will make the repeal of DADT permanent.
I agree with President Obama that it should be done that way :)

[sabrina 1]

6. When will that come up for a vote? I am not aware of that btw,

which is why I am asking, and how much opposition will it get? Some DUers who oppose the EO are saying that there are not the votes to rescind DADT. So, which is true?

[Unvanguard]

10. It will come to a vote in a lame-duck session in December.

The attempt to bring it to a vote last month failed by three votes. The composition of the Senate will probably be somewhat less friendly in the lame-duck session because of a few special elections where Republicans will replace appointed Democrats; on the other hand, the review process will probably be over, depriving the Republicans of one of their excuses to vote "no." How it will go is anybody's guess.

[sabrina 1]

11. Doesn't sound very hopeful then.

Thanks for the response.

[ruggerson]

5. They've already been halted. The administration is obeying Judge Phillips' order.

[sabrina 1]

8. They are planning to appeal the judge's order.

It is halted because of the judge, not this administration. But Obama could back up that order rather than allow the DOJ to try to overturn it. He could do it by EO.

[Tx4obama]

12. DOJ has filed a 'stay' on the judge's order. n/t

[ruggerson]

13. they've filed a REQUEST for a stay. She hasn't granted it yet.

I'm sure she will, and soon, but until that time - equality shines brightly in the armed services.

[sabrina 1]

14. They didn't have to do that. Why would they?

[Tx4obama]

18. Because....

Below is an explanation I saw earlier elsewhere....

The Department of Justice (DOJ) has issued a letter explaining that while they formally oppose the "Don't Ask, Don't Tell" (DADT) policy they are legally obligated to defend any law that is crafted and passed by the United States Congress. The DOJ is expected to ask for an emergency stay on the injunction striking down DADT. The injunction must first be filed with the judge they are appealing, in this case Judge Virginia Philips. When she denies the request as she is expected to do, the Department of Justice will attach the request for a stay to their actual appeal and file it with the 9th circuit court. After the appeal if formally filed a three judge panel will be immediately empaneled in an effort to rule on the appeal and the stay.

[sabrina 1]

19. Does the DOJ defend all laws ruled on by judges around the

country? I have read that if the DOJ did nothing, the ruling would stand. I don't know if that is true or not, I will have to do some research I guess.

[Tx4obama]

20. In this case ...

The case is:

Log Cabin Republicans vs. The United States of America

So, to answer your question The DOJ doesn't defend all laws by judges around the country.
But in this case they are 'involved' in this lawsuit, The USA is the defendant in this lawsuit, so they are obligated to respond.

Here's a link to a website that has links to the motions, rulings, etc pertaining to the case
http://online.logcabin.org/log-cabin-republicans-vs-usa.html

[sabrina 1]

23. Thanks, that explains it better then.

However, I have read a few reviews on the judge's ruling and many noted that she ruled that DADT was 'unconstitutional'. Here eg:

Will DoJ Appeal the Don't Ask, Don't Tell Ruling?

Normally, the government is compelled to defend its laws. But in this case, as the judge pointed out, President Obama has said himself that DADT doesn't contribute to national security. If a law is failing at its intended purpose, doesn't that mean its unconstitutional, given the standard from Lawrence?

The judge did say that the law was unconstitutional. So, I am wondering if the DOJ could accept that and decide not to file an appeal. They have already tried to defend the law and failed.

Thank you for the link. Very interesting case and a landmark decision imo.

[sabrina 1]

24. Okay, I just found this

OP which answers the question. It seems that the DOJ doesn't have to appeal the decision after all.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9318624

In a case in the '90s apparently a judge ruled that not allowing people with HIV in the military was discriminatory. The Clinton Administration decided not to appeal the case. So I guess they do have a choice.

[ThomCat]

26. We have said this before, answering this question.

This administration is CHOOSING to defend DADT in the courts while claiming that they supposedly want to repeal it, and doing nothing to actually repeal it.

This administration is CHOOSING to keep the conveyor belt moving, churning people out of the military because they are LGBT. That is their deliberate choice, their chosen policy, not because they must, but because they want to.

The LGBT community is beyond the point where we will believe the lies anymore. We won't believe that Obama really intends to ever get rid of DADT until the day it is gone. He is working too hard to keep DADT in place, and deliberately stalling every effort against DADT.

He has come out publicly against Marriage Equality. Blatantly against it.

He claimed to be for our rights, but every other effort is now dead too, and all we got was table scraps instead of civil rights.

We know where he stands, and he doesn't fool us. Though he certainly does seem to fool some straight folks who insist on periodically lecturing us on how good we have it. :(

[sabrina 1]

29. I am one of those straight folks who does not understand

the administraion's position on this. All excuses have been erased. The OP I posted of the study that shows he can issue an executive order, contradicts those who claimed that he could not. So they have moved the goalposts and are now claiming that he wants Congress to do it rather than issue an EO. So, I'm with you. As excuse after excuse gets shot down, they find another excuse.

Is he even aware that this will be part of his legacy? Courts are now ruling in favor of stopping the discrimination. The public is in favor of stopping it. It's only a matter of time before this discrimination will end. Why would he want to go down in history as the President who had the opportunity to end it himself and chose not to? It doesn't make sense.

[ThomCat]

31. My guess is that he really is religious.

And he really is conservative to a greater extent than his public reputation. It isn't an accident that he brought in all those Goldman Sachs advisers and moved so far to the right once he took office.

I think he's looking to the corporate world to take care of his life and his reputation after he leaves office. So, he's looking to his corporate advisers to help him make all his decisions now.

Civil Rights isn't a important to the global corporate world, nor is anything that unites the peons. Anything that creates discord and allows them to set people against each other can be used by the the corporations to help break up unions, and set employees against each other. So, as a matter of principle, they'd advise him to stall on anything that helps people unify and get rights. Just don't admit it.

[sabrina 1]

32. Religion is definitely playing a huge role in the discrimination

against Gays. I think the military has been 'Christianized' and I thought maybe he is being advised by the military not to rock the boat. Or maybe warned.

I do believe he has a problem with Gay Marriage, in fact he has said so. But the POTUS and is not supposed to allow his religious beliefs to interfere with politics.

I CAN understand religious people opposing Gay Marriage but that doesn't explain opposing having Gays serve in the military. There is nothing religious about that issue. It is a clear case of equal rights for citizens who are paying taxes and are entitled to equal treatment according to our Constitution.

But you may be right. Regardless of his reasons, there simply are no more acceptable excuses for not taking a stand on DADT at this point.

[joe black]

34. Bingo!

[Tx4obama]

40. But

Was there an actual 'law' passed by Congress that said that people with HIV could not join the military? I think there wasn't a 'law', but that it was a 'military policy'.
In the case of DADT - DADT is a legislative law that was enacted by Congress, and will need to be repealed by Congress voting to change the 'law'.
Therefore the obligation of The DOJ to defend a current 'law' passed by Congress is different than The DOJ deciding to not defend a 'HIV policy' issued by the military.

[Greyhound]

30. Which is a load of crap. If it were true we would have had 30+ years of prosecutions

for violations of The Sherman Act, which is settled law.

[sabrina 1]

33. I think you are right. The DOJ

has 60 days after the judge's decision to decide if they will appeal. That seems to say that they don't have to. There would be no need for a deadline if they did.

[LonePirate]

15. Obama only offers change you can believe in if you're not LGBT.

If you are LGBT, he couldn't care less about change.

[nashville_brook]

22. ouch!

so true.

you're in good company, tho -- along with the unemployed, union workers, school teachers, and anyone hoping to get Social Security.

[ThomCat]

27. He only offers change you can believe in if you are a Corporate Exec.

He doesn't really care about anyone who LGBT, or poor, or in a Union, or concerned about Choice and access to Reproductive Health Care, etc.,

The people he doesn't care about vastly outnumber the people he does care about. x(

[Swamp Rat]

16. k&r

[hendo]

21. Should he, Yes. Will he, no. NT

[Starry Messenger]

28. Yes!

[VMI Dem]

35. So he can get credit? Its done. He had little or nothing to do with it.

[Johonny]

36. depends

If the military report is really coming out and Congress is really going to act in November than he would be unwise to issue an executive order because such an order would clearly halt congress from action. However if congress fails to act and given the court order, he would have grounds to issue a halt on the dismissal of troops. It really depends how much you believe congress is going to act and this report will really come out. Frankly the gay community appears to have vastly less faith in this than Obama does and the troops that are dismissed between now and then will be lost unfairly just the same.

[sabrina 1]

37. Yes, those are good points. However, Congress has already

rejected an opportunity to repeal it. They are planning on trying again in a lame-duck Congress. I doubt any Republican is going to change their mind especially after the election when they have no reason to worry about the public, who are overwhelmingly in favor of ending it.

Obama has shown a tendency to have far too much faith in being able to win over Republicans. So far, he has been unable to do so on any major issue.

I think this is a time when the president has to take a stand. By issueing the order, combined with the court ruling which the DOJ should not appeal, and the support of the Public, why place your hopes in the least likely place to get support?

Even if he is president for only two more years, by then the policy would be pretty much entrenched, the Military would have adjusted, new recruits would not know anything different, and the public would no longer even see it as an issue. If he is president for six years, it would be way too late to try to change the policy.

I see no benefit in trusting Congress. I see a lot of benefit in taking bold action and removing this as an issue for the future, not to mention being on the right side of history.

[TheKentuckian]

38. This does not have to be appealed at all nor does a stay have to be requested.

The "okie doak" is being run and after the election it will be the not enough votes excuses again.

[Tx4obama]

41. It does have to be appealed if you are in the camp that thinks that Congress & not judges make law

It is better for Congress to set the law of the land instead of federal judges.
The Supreme Court is another matter, but the Log Cabin vs. USA case has not yet reached the SCOTUS.
Therefore I believe at this point in time it is Congress that should change the law and not a federal judge.

[asdjrocky]

39. But he won't.

That would take guts, something he seems to lack when it comes to standing up for what is right.

[Tx4obama]

42. Has everyone read the DOJ's request for a stay?

Reading their request for a stay is enlightening, and helps make clear what the Administration's plan is for the policy. A few key excerpts below:

As the Court’s opinion recognizes, the President has made clear his view that DADT should be repealed. He is committed to an orderly repeal of DADT, and the Department’s Working Group is nearing completion of its study and recommendations on implementing repeal in an orderly manner. In contrast, the precipitous changes to military policy required by the Court’s injunction would result in a host of significant and immediate harms to the recognized public interest in ensuring that the Nation has strong and effective military operations. The injunction forces the Executive to immediately cease enforcing a statute enacted by Congress regarding military affairs, which alone creates harm justifying a stay. The injunction also requires an immediate and dramatic change in policy without allowing time to do so in an orderly and comprehensive way. For these reasons, a stay is necessary...

The precipitous changes required by the injunction would prevent the military from developing the necessary policies and regulations, and from conducting the necessary training and education of the force, to successfully adapt to the end of DADT...The DADT statute implicates dozens of DoD and Service policies and regulations that cover such disparate issues as benefits, re-accession, military equal opportunity, anti-harassment, and others. Amending these regulations would typically take several months, because of the need to notify and seek input from all affected to ensure that changes do not inadvertently result in unanticipated negative effects on the force. Properly implementing any change in policy would thus be a massive undertaking by the Department and the military and cannot be done overnight...

Thousands of military personnel have enforced the DADT statutory policy for many years. Thus, the end of DADT will require that these personnel receive training and instruction in a number of areas, including: (i) how the policy has changed; (ii) why the policy has changed; (iii) how the change in this policy affects other existing policies; (iv) appropriate treatment of gay and lesbian servicemembers who reveal their sexual orientation; (v) appropriate treatment of servicemembers who object to serving with servicemembers they know to be gay or lesbian; and (vi) principles to consider when handling other issues that may arise after the elimination of the DADT statute. The immediate injunction ordered by the Court does not permit adequate time for this necessary training and instruction to occur.

Developing proper training tools regarding the end of DADT and communicating any new policy effectively to the millions of personnel at issue will take time and effort and cannot happen immediately, especially for commanders and servicemembers serving in theaters of active combat. The failure to provide proper training and effective communication regarding any change in the enforcement of DADT would be disruptive to military commanders and to servicemembers as they attempt to carry out their mission and military responsibilities, especially in active theaters of combat. The Department is actively engaged in developing educational and training tools and a plan for effective communication so as to allow the orderly discontinuation of DADT, and the injunction should be stayed so that process can be completed. An immediate court-ordered end to the statutory policy would place the military in a position of devising solutions on-the-fly, rather than responsibly implementing the careful planning that is currently being conducted by the Working Group...

Finally, a stay pending appeal would help to avoid the confusion and uncertainty that would be caused by an order temporarily enjoining enforcement of DADT, with the looming possibility that the statutory policy could be reinstated on appeal. Enjoining the operation of the statute before any appeal is concluded would create tremendous uncertainty about the status of servicemembers who may reveal their sexual orientation in reliance on this Court’s decision and injunction.

[sabrina 1]

43. I read that yesterday, and frankly none of it made sense.

First, it paints the U.S. military as a bunch of whiny, scared and bigoted cowards. Afraid of anything new, unable to adjust for years to a situation they already ARE experiencing.

If they are this unable to adjust to what is really a minor change in the status of their fellow soldiers, how are we supposed to believe that they can fight wars in an atmosphere where their very lives are constantly threatened and adjust to living under the worst of conditions regarding just the ordinary needs most people including them, are accustomed to?

And to say it would take 'years'??? It sounded like another attempt to scrape the bottom of the barrel of the myriad of excuses they have come up with for just refusing to do what is right.

I know people in the military, many of them. And not one of them who have served as combat soldiers would consider this to be something that requires years for them to adjust to. In fact, they would be insulted. And since most of them know that several members of their own units are gay, the whole thing would leave them wondering 'wtf'?

The fact is that the injunction is already being observed by the Pentagon according to reports. There doesn't seem to be any confusion among service members over the past several days.

An immediate court-ordered end to the statutory policy would place the military in a position of devising solutions on-the-fly, rather than responsibly implementing the careful planning that is currently being conducted by the Working Group...

The military does everything 'on the fly' when they are on the battle-field. If it is going to take years for them to adjust to this benign change in a policy that most already agree is wrong, then how on earth can they adjust to the wars they are being sent to fight? If I believed any of this, I would suggest we better bring the troops home, fire most of them, and start training a new military that is not so sensitive and frightened of change that we need to tip-toe around their delicate feelings.

The only good thing about this is that I expect it would fail as an appeal and should fail in its request for a stay. I think the troops are adjusting just fine so far.

Btw, how many years of preparation were required when the military accepted Women as combat soldiers, or Blacks?

All I can say is that people are growing tired of the excuses. People adjust. They adjusted to the granting of rights to minorities and that involved the entire country. If we had to 'prepare' the country, those minorities would still have no rights.

Sometimes, as one great educator said 'one loud discord is better than a thousand little ones'. Just end it.