Since he was elected, President Obama has been dragging his feet on his campaign promise to let gays serve openly in the military—and gay-rights activists have been fuming. After avoiding the issue during his first year in office, Obama announced his intention to overturn the policy created in 1993, called “Don’t Ask Don’t Tell” (DADT), which currently bans gays from serving. But he demanded that Congress do the law changing. After the president requested that the military study the issue, top generals and Defense Secretary Robert Gates testified to Congress that DADT wasn’t working. But in September Senate Republicans successfully filibustered the defense authorization that would have repealed DADT. With Republicans poised to gain Senate seats in the coming midterm elections, repeal looks even more in doubt, unless Democrats manage to pass it in the lame-duck session between the elections and the new Congress being sworn in next year.
Then last week, came a reversal of fortune for gay-rights advocates. A federal district court ruled in Log Cabin Republicans v. United States that the current policy against gays was unconstitutional. But on Thursday the Obama administration, which had defended the law in court, asked the court to stay the injunction against enforcement of DADT while they appealed it. (On Monday, Judge Virginia Phillips said she was tentatively inclined to reject the administration’s request.)
Obama has now repeatedly angered the gay-rights advocates: first by refusing to undo DADT himself, then by vociferously defending the law in court, and now by appealing the ruling and asking for it to be stayed. “Obama has made choices identical to those that would have been made by the Bush administration,” says Jonathan Turley, a constitutional law expert at George Washington University.
At the very same time that the Department of Justice was issuing its request to the court, President Obama was asked pointedly during his MTV town hall, why he does not just overturn “Don’t Ask Don’t Tell” by executive order, as President Harry Truman had desegregated the military in 1948. Obama replied that the situation was not analogous because in this case Congress had actually passed a law imposing the discriminatory rule, and so only Congress can repeal it. (Obama did promise that repeal would happen on his watch.)
But is it true that Obama has to wait for Congress to act? Most legal experts agree that a president cannot simply change a law by fiat. “Obama is correct in the most general terms,” says Diane Mazur, a former Air Force officer who teaches law at the University of Florida. “Federal law can go away in one of two ways: Congress can repeal it or a court can find it unconstitutional.” And it would seem hypocritical for liberals, who complained during the Bush administration that the executive branch was arrogating too much power to itself, to decide suddenly that they like the unitary executive when their side controls it. “I would be unhappy to hear Obama reading his commander-in-chief power to ignore Congress,” says Robert Burt, a professor at Yale Law School.
There are two different arguments for why Obama could choose not to enforce the law. The first one: he could say it was unconstitutional. At the time that DADT was passed, it was constitutional because there was no Supreme Court precedent establishing that homosexual relationships are protected under the implied privacy rights of the Bill of Rights. Then, 10 years later, the Supreme Court ruling in Lawrence v. Texas overturned an anti-sodomy statute on the grounds that it violated the privacy rights of gay couples. Since then, laws that impinge upon the sexual-privacy rights of gay couples are presumed unconstitutional if they have no rational state interest to justify them. “Since Lawrence v. Texas, you can no longer discriminate against gays without reason,” says Mazur. “The constitutionality of ‘Don’t Ask Don’t Tell’ has changed since Congress enacted it.” Given that top military leaders have said that DADT is harmful to the military, Obama could have simply announced that, absent the state interest to justify DADT, it is now unconstitutional and will no longer be enforced.
Obama’s other option: simply using his executive power to decide how the laws will be, or won’t be, executed. So Obama could simply order the military to stop applying the law, or to use it much more narrowly and infrequently. “There are a lot of laws on the books he doesn’t rigorously enforce,” notes Geoffrey Corn, a military law expert who teaches at South Texas College of Law. “The courts have recognized that while Congress has full authority to pass laws, the president has authority over when to enforce laws,” says Turley. Many criminal statutes, for example, are often unenforced and prosecutors have a lot of discretion on when to bring charges and what sentence to seek.
The president would be on strong footing in this case because he has especially wide latitude in interpreting laws that govern the military. Congress clearly was acting within its authority under Article I of the Constitution to “make Rules for the Government and Regulation of the land and naval Forces.” Some experts would argue that President Obama would be trampling that right if he chose not to enforce DADT. But others note that the president has historically been granted a lot of freedom by Congress and the courts to manage the details. “Traditionally, the executive is given latitude in putting meat on the proverbial bones,” says Corn. “There are certainly options the president could take with an executive order, particularly as commander in chief of the military,” says Mark Zaid, a lawyer in Washington, D.C. who frequently represents members of the military. “From a strict constitutionalist standpoint, a presidential order contradicting a law could lead to a judicial battle. But courts defer to the president as commander in chief.”
Could Obama choosing not to enforce a law be challenged in court? Theoretically, but the only people who could plausibly have standing to sue for enforcement would be military officers and members of Congress, neither of whom would necessarily want to do so.
If Obama didn’t pursue one of those permanent solutions, he could temporarily let gays serve while waiting for the courts or Congress to act by using his stop-loss power, which was explicitly granted by Congress in 1984 to override military discharges if troops are needed. “Stop-loss authority is a statutory authority enacted by Congress,” Mazur explains. “It gives the president authority to suspend any law that involves the discharge of service members. In times of national emergency there might be lots of reasons.” Given all the accounts of valuable servicemen and servicewomen, such as Arabic translators, being discharged under DADT, it would seem a fairly straightforward case for Obama to make. That would buy a couple of years for Congress to act or the current legal challenge to reach the Supreme Court. “The president has not openly discussed why [he is not using stop-loss],” says Mazur. “Typically, he has denied that he has any such authority and no one has really pressed him as to why.”
And even if Obama chose none of those options, once the Log Cabin Republicans suit was filed, Obama could order that DADT not be enforced pending the suit result. But what especially makes some DADT opponents’ blood boil is that the administration is fighting so hard for DADT in court. The Obama administration has consistently argued that it must vigorously defend laws that it opposes as part of its obligation to “faithfully execute” the president’s duties. But not all experts agree with that interpretation. “Why not just let the injunction stand?” Corn demands. “You don’t enforce laws overturned by the highest court in land, so why not accept the lower court ruling?” Many scholars say that there is no requirement for Obama to appeal. “The president has complete authority not to appeal the decision in these cases,” says Turley, who in 1989 successfully argued in federal appeals court for overturning a law and saw the George H.W. Bush administration choose not to ask the Supreme Court to hear an appeal of that decision. “The appeal is completely discretionary. Whatever duty the president has to defend the existing statute was satisfied before the trial court.”
Some experts wonder why the administration even chose to defend the law in the first place. Turley maintains that they didn’t have to: “The president has a duty to separate his administration from an unconstitutional statute. If a statute required racial discrimination, would the president seriously be arguing that he and his administration would have to defend the statute all the way to the Supreme Court?” Many liberals feel betrayed by a president who they see as having chosen to enforce and defend a discriminatory law.
But Obama has some defenders on the legal left. Burt of Yale law school, who personally supports letting gays serve openly, says that Obama’s interpretations of his administration’s obligations have been correct. “If there is an act of Congress, it seems reasonable to me to say that it binds the president and he must faithfully execute it,” Burt says. “It is within the president’s discretion to say that the ruling in Log Cabin Republicans is so clear that there’s no point in appealing,” Burt concedes. “But that’s not the case here: there have been conflicts among district courts and courts of appeal that have looked at this statute.” Most of those rulings preceded Lawrence v. Texas. Lawrence strengthens the argument that DADT is unconstitutional, but courts have shown a lot deference on questions of military necessity.
Perhaps Obama’s choices that seem to contradict his beliefs on the issue are motivated by politics—a desire to shift responsibility to Congress or the military—rather than legal principle. That’s the only explanation that makes sense to many disappointed gay-rights supporters. “My only plausible explanation is the president made a political accommodation with the military and Congress that ‘I’m not going to step in the middle of this,’ ” Mazur says. But as pressure builds from his impatient supporters, Mazur adds, “He’s finding it easier said than done for a president to say, ‘Even though I’m commander in chief, I’m going to stay out of it.’ The pressure is becoming greater for him to justify how he can stay out of it.”
Update: Late Tuesday Judge Phillips denied the government's request for an emergency stay of her order that the military begin accepting openly gay soldiers. The military has instructed recruiters to adhere to the ruling, and on Tuesday some former soldiers who had been discharged for being gay began trying to re-enlist. Two in California were rejected, but former Army Lt. Dan Choi, who has been active in calling for the repeal of DADT, began the process to re-enlist at a recruiting station in New York’s Times Square.