Obama on DADT: Questions and Answers

[Writer]

Edit to add: This is from today's MTV forum.

Q: I voted for you in the last elections based on your alleged commitment to equality for all Americans, gay and straight, and I wanted to know where you stood on “don’t ask, don’t tell.” I know that you’ve mentioned that you want the Senate to repeal it before you do it yourself. My question is you as the President can sort of have an executive order that ends it once and for all, as Harry -- as Truman did for the integration of the military in ‘48. So I wonder why don’t you do that if this is a policy that you’re committed to ending.

THE PRESIDENT: First of all, I haven’t “mentioned” that I’m against “don’t ask, don’t ask” -- I have said very clearly, including in a State of the Union address, that I’m against “don’t ask, don’t tell” and that we’re going to end this policy. That’s point number one.

Point number two, the difference between my position right now and Harry Truman’s was that Congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally. So this is not a situation in which with a stroke of a pen I can simply end the policy.

Now, having said that, what I have been able to do is for the first time get the Chairman of the Joint Chiefs of Staff, Mike Mullen, to say he thinks the policy should end. The Secretary of Defense has said he recognizes that the policy needs to change. And we, I believe, have enough votes in the Senate to go ahead and remove this constraint on me, as the House has already done, so that I can go ahead and end it.

Now, we recently had a Supreme Court -- a district court case that said, “don’t ask, don’t tell” is unconstitutional. I agree with the basic principle that anybody who wants to serve in our armed forces and make sacrifices on our behalf, on behalf of our national security, anybody should be able to serve. And they shouldn’t have to lie about who they are in order to serve.

And so we are moving in the direction of ending this policy. It has to be done in a way that is orderly, because we are involved in a war right now. But this is not a question of whether the policy will end. This policy will end and it will end on my watch. But I do have an obligation to make sure that I am following some of the rules. I can’t simply ignore laws that are out there. I’ve got to work to make sure that they are changed.

[Radical Activist]

1. Nice answer.

It shows he's focused on the issue and unwavering in his commitment to repeal DADT.

This is one more issue where the Senate failed to act and Obama is getting the blame.

[ruggerson]

2. So then don't appeal Judge Phillips' decision

Right now DADT is dead.

Don't bring it back to life by asking for a stay and filing an appeal.

[stevenleser]

3. I agree with you here. I will be extremely upset if the appeal is actually filed.

I don't know what pull I may have as a result of the whole TV thing, but I may see if I can at least leave a msg for the Chief of staff to explain why this should not be done. We've been handed a zero cost win here. I say we take it.

[Unvanguard]

4. They have already filed a notice of appeal. They are going to appeal. n/t

[stevenleser]

8. Plenty of "notices of appeal" never end up being followed up by appeals. Parties think better of

them for whatever reason. The appeal should be stopped. We all should call the White House.

[Unvanguard]

11. I don't think that's very likely in this case.

They could have waited if they were still deciding. They have sixty days.

[stevenleser]

16. Unless a huge outcry ensues, you may be right. It is also possible that...

someone in the administration has done this (notice of appeal) in an attempt to make it a non-election issue out of fear but then will not appeal by design/plan. But I do not think we should count on that.

Appealing this is a huge mistake, of that I am certain. The administration should declare victory and move on.

[Writer]

5. That is something that needs to be clarified.

I don't understand why the political question has one answer and the legal question has another. It's obvious that this administration wants to get rid of the policy and wishes to use the proper channels for a more permanent end. Why the appeal?

[stevenleser]

14. Yes, I don't think it has to be one or the other. In fact, there should still be legislation

that calls for no discrimination and enshrines whatever integration methods the military has come up with into law and regulation.

I say take 'em both. Take the appeals court striking it down AND pass a law at the earliest opportunity. I have no problem with two stakes being thrust into DADT.

[msanthrope]

66. It's possible the appeal will be limited to the standing issues alone.

There are associational standing issues, and then, standing in remedy issues.

[ruggerson]

10. It's also a smart, bold political move

They've been handed a gift here. This is exactly why we have three branches of government. They should take the gift and move forward.

[stevenleser]

23. I had to create my own OP on this and other points surrounding why this should not be appealed

the appeal cannot go forward. That is all there is to it.

[Whisp]

51. have a look at this link, steven.

here is a link to Rachels show titled: Untangling DADT from U.S. law

http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#39679402

I find this whole thing so very confusing and this helped me quite a bit, I think.
The process is a real quagmire and has to be done correctly.

I think that Obama is sincere when he says he wants to get rid of it, I don't think he is lieing to us or trying to trick us.

[stevenleser]

52. I saw part of that last night. The question is, can we do that AND not appeal.

I think the answer is "yes".

p.s., thanks for the link. I do want to watch the whole thing.

[Writer]

54. steven, I think you're missing something here...

If the federal government didn't appeal the district court judge's decision, then the district court decision stands and is vulnerable - VERY vulnerable - to being attacked by a future administration in circuit court. The US MUST appeal this decision so that the argument can continue up through the federal court system until it reaches the Supreme Court.

[Whisp]

55. I think it Must be appealed (but I know next to nothing of the process)

(it's mostly all guesses here on this issue on DU anyway, so I thought I'd throw in my opinion to offset the ridiculour 'Obama is a gay bashing homophobe' posse)

---it must be appealed so it can go through the required legal motions and responsibilies of the DoJ, so as it will be a legitimate and solid process that can't easily be undone by the next Pug Admin.

Even during the appeal the DoJ Can say, yes we are doing this appeal but we think DADT is unconstitutional so get rid of it.

Obama wants as many people on board to agree and has been setting this up - that's why this wasn't done a day after he became President, things take time and persuasion - it's only common sense. He has worked with Military to say that having DADT is actually a threat to national security - that so many talents (14,000 to date) in so many important fields are valuable resources not used because DADT.

[LonePirate]

7. Bingo! I don't hink Obama wants DADT repealed so much as his supporters want it repealed

I think he would prefer to do nothing at all. The pressure from his party is simply too overwhelming for him to ignore.

If you want to know how he feels about LGBT equality, seek out his stand on same sex marriage. The proof is in the pudding and this pudding is spoiled.

[Writer]

9. Dude (Dudette?) I really think Obama wants to get rid of it.

Why do you think he doesn't want to get rid of it? I see nothing but his continued voiced support for getting rid of the rule. Why do you doubt that?

[TheWraith]

18. That is not a matter of discretion. Particularly not Obama's discretion.

The President doesn't get to choose laws to defend or not to.

[ruggerson]

32. did you say something?

[TheWraith]

60. Just a little bit of factual information in the storm of false claims. Ignore it. nt

[Exilednight]

62. In rare cases he can, and this is one of those cases ..........

If a president comes out and says that a certain law is unconstitutional, he can unilaterally decide not to defend the law if it is challenged in court. Oddly enough, it was Chief Justice Roberts who wrote this suggestion.

[vaberella]

49. So if one state judge proclaims something is illegal then automatically it kills the nat. statute?

I didn' realise that was the case.

[Exilednight]

63. In this case it does. The Judge ordered a halt to DADT across the board and included those ........

that are stationed overseas.

[terrya]

69. EXACTLY

DADT is dead. There is no reason to appeal it. Period.

[Unvanguard]

6. "This policy will end and it will end on my watch."

Okay, that's nice.

I want to know what he will do if the Senate vote fails. Not appealing would have solved that problem. I hope he has some other solution in hand now that he's dispensed with that one, but his words here close off most of the possibilities.

[Writer]

12. If the Senate vote fails, then the Senate vote fails.

Obama has to work within the constitutional system. However, if enough pressure is put on senators to vote for the measure, then perhaps the results would be better.

[Unvanguard]

13. So, if the Senate vote fails, when does DADT end?

Does it end on Obama's watch, as he just promised (again)?

[Writer]

15. Why do you confuse a political failure with a moral failure?

What is he supposed to do beyond what he can do constitutionally? I don't understand this logic! We can't moralize our way to a political result. Laws to protect gay Americans must be written, and the Fourteenth Amendment needs to be clarified to make sure that the LGBTQ community has "equal protection under the law." As Obama explains, this limit on his executive power needs to be overturned so that he can change military law. If the Senate change doesn't pass, then his hands are tied. What more is he supposed to do? What are your suggestions?

[ThomCat]

43. Because Obama failed to use any of his political capital

to pressure anyone to vote to repeal DADT. That's why it's a moral failure.

He tells the LGBT community he's going to repeal it, but then does NOTHING! And when others put it up for a vote, he fails to support the vote.

He is in the most powerful office in the entire world. He has the bully pulpit. He has shown that he can use it when he wants to. But he doesn't ever seem to want to use it for LGBT rights, and straight people keep conveniently looking the other way when he fails to use any of his authority or influence to help us.

It is a moral failure because, if he had issued an executive order a year ago, we would have had an entire year of people seeing that LGBT Folks CAN serve in the military, and seeing that HE wanted us to serve in the military. It would have been a strong statement to rally support. He wasn't willing to make that statement, even though military law experts have stated repeatedly that he has that authority on three different precedents.

It is a moral failure because, if he needlessly appeals this all the way to the supreme court, which looks likely, with the current conservative majority on that court, and they rule with him in favor of keeping DADT (remember, THAT IS the position he is arguing in court) then DADT will get permanently enshrined in law and we will fail to get legal equality in the military. It will be because of Obama, and because of his legal tactics that we fail to get legal equality in the military.

What irony at that point that the President who promised to get rid of DADT, and called himself a fierce advocate for our rights, is on track to deny us those rights indefinitely.

[Unvanguard]

44. My suggestion was that he refuse to appeal.

If he wants to wait until the review is over, he should wait to see what the Senate does, and if the Senate vote fails, he should stop discharges with a stop-loss order, at the bare minimum, and work with the Pentagon to make regulatory changes sufficient for DADT to be as irrelevant as possible.

These are things Obama can do, and he can do them without causing a constitutional crisis. There are legitimate objections of political principle to both, but he can do them, and given the support for ending DADT expressed by a majority of both houses of Congress and by the American people, and the utter horror of letting this bigoted and unconstitutional law remain in effect, using executive power to get rid of it seems to me to be substantially the more compelling ("lesser evil") side of the argument.

Furthermore--and this was my point in my original post--Obama ought to be honest. If he in fact has no guarantee that DADT will end on his watch, if he has no "Plan B" for the Senate vote failing, then he should not attempt to apologize for his appeal by proclaiming with apparent surety that he will end it.

[LonePirate]

17. If the Senate vote fails or is punted, DADT will remain until the SC overturns it or

Until a Democratic president besides Obama is in office, whichever comes first. Obama's "support" for a DADT repeal will go the same way as his "support" for a public option. When his DoJ filed the appeal, we learned what he truly thinks about this discriminatory policy.

[Honeycombe8]

21. Congress can strike DADT. The Senate vote is for letting Obama do it on his own.

DADT is a statute. The President, whoever s/he is, cannot strike out a statute. Only Congress can strike a federal statute.

The Senate vote, O is saying, is to let him do just that. If that doesn't pass, then the Congress can still strike the statute on its own.

But DADT has been rule unconstitutional. It's only a matter of time.

The old saying is...the wheels of justice turn slowly. It's true. When you're a nation of laws and not a dictatorship, things take more time.

[Renew Deal]

59. If the repeal shows up on Obama's desk tomorrow, he will sign it.

We don't need another president. We need more votes in the Senate. I think it will end in the Senate this year by the DOD budget.

[ruggerson]

19. The law is currently dead

We can't hang our hats on a Senate vote. Lives are at stake here.

[Writer]

20. So you think we should lean on the legal system?

That makes the most sense, because ultimately this is a constitutional issue, so it will need to go through the circuit court system then hopefully be decided on by the SCOTUS.

[Honeycombe8]

22. Congress can strike the statute. Or give O the power to do that. Right?

It doesn't need to go to the S.Ct. I'll be surprised if they appeal the decision. We'll see.

[Writer]

24. Well if it goes to the SCOTUS, then it will be decided on constitutional grounds.

I don't know if that means that a SCOTUS decision will carry more weight, but the result would be that, not only would DADT be overturned, but that constitutional rights for gays as a whole will be protected. That's a much more profound victory - true civil rights!

[Exilednight]

64. SCOTUS will not overturn DADT. It's a nice thought, but it won't happen. n/t

[rug]

25. The court determined the constitutional issue.

[Writer]

27. A district court is not the highest court in the federal system.

Actually it's the lowest court. It can easily be appealed in the future by a circuit court challenge. A SCOTUS ruling would open up many doors for gay rights legislation - well beyond DADT.

[rug]

28. The only one that can appeal this decision is the Administration.

[Writer]

29. Correct. The United States appeals the decision...

it goes the Court of Appeals. If the court of appeals upholds the district decision, then likely the United States will appeal again to SCOTUS. Then hopefully SCOTUS will not only accept the case, but rule in favor of overturning DADT under the 14th Amendment.

[rug]

30. And the DoJ does not have to appeal. Stare decisis.

[Writer]

31. If a landmark case supporting equal rights for gays is decided by the Supreme Court,

then stare decisis will not only apply to the DADT situation, but well beyond that. The avenues that would open up for GLBTQ rights would be extraordinary.

[rug]

33. You assume this Supreme Court will affirm the District Court.

If it does not, DADT is revived.

If it does, it can craft a narrow decision with no precedential value beyond DADT.

The appeal is unnecessary, carries inherent risk, and subjects people to a prolonged uncertain legal process for no gain.

The decision to appeal is motivated either by extreme naivete, placing entirely unwarranted trust in Roberts, Scalia, Thomas and Alito, or extreme cynicism, playing personal rights off against political gain.

And those rights are not extraordinary. The point is, they are the most ordinary rights everyone should exercise.

[Writer]

34. Actually it would first go through the Court of Appeals.

You forget that there's a plaintiff in the case, and the plaintiff also has the right to appeal. It will end up in the SCOTUS.

[rug]

35. Naturally. All the more reason not to appeal.

The Plaintiffs here are supported by the Log Cabin Republicans. They're not appealing. They've already won. The Defendant here is, essentially the Obama administration. The only reason to appeal is to revive DADT.

[Writer]

36. Or to continue the case until it reaches the SCOTUS. n/t

[rug]

38. Only those who want DADT to be enforced will appeal it or support the appeal.

[Writer]

39. No. It's much more complicated than that.

This is the video that Clio just posted - an interview with the former Solicitor General of the United States. I just watched it. He says almost exactly what I am saying - a district court ruling can be overturned by another district court judge in the future. This MUST reach the SCOTUS!

Although he says that they are approaching this from a national security angle instead of a 14th Amendment angle.

http://www.msnbc.msn.com/id/3096434/#39679402

[rug]

40. He did not say that one district court can overturn another's.

Certainly no other district court can overturn this ruling.

What he did say is that he's uncomfortable with a national statute being struck by a single district court. He advised the government to appeal to the circuit court and tell that court that the government's position is that the law it is defending is unconstitutional. He wants a higher court to endorse the lower court. He said "we don't want a single federal judge to hold an act of congress unconstitutional." (5:00)

Any decision to appeal is based on policy and politics, not legal necessity.

BTW, he's not certain if Kagan must recuse herself from this case.

[Writer]

41. This leads to the same result.

Listen, I can't keep going back and forth with you on this. I really need to go live my life offline. But he believes, as I do, that a federal district court decision can easily be overturned down the road in the circuit court - with the possibility of a REPUBLICAN administration at the helm - who will push this into the SCOTUS and fight for DADT's constitutionality. The Obama Administration wants to make sure that the SCOTUS rules DADT unconstitutional. That's the entire point of this exercise.

I really need to go relax and enjoy the rest of my evening. I hope you do the same.

[rug]

42. That's the plan. The Supreme Court may feel otherwise.

It's too clever by half.

[msanthrope]

67. Actually, no. It's possible to grant intervenor status to 3rd party. n/t

[Exilednight]

65. It can't appealed in the future. The WH only has 60 days. n/t

[Proud Liberal Dem]

26. Maybe the LCRs

should put a little pressure on their Republican brethren like John McCain to stop preventing an UP-OR-DOWN vote too, eh?
:shrug:

[terrya]

70. If the Senate vote fails, then DADT is locked into place.

Since this administration seems to want to appeal rulings against it. Come on, it's lip service from Obama. He makes noises about wanting to end it, and if it doesn't end, oh well. It's just a bunch of homosexuals, after all. I believe that the political caluclation was made, very early on, that it's not worth it to try to deliver the promises that were made to GLBT Americans during the 2008 campaign.

And I just realized, with that cavalier attitude you've displayed about this issue, that it's rather pointless to discuss GLBT issues and issues of fairness and equality, not to mention retaining people with valuable skills who want to serve their country, on what is allegedly a progressive message board.

[Bluebear]

46. It did end on his watch. A judge ended it. He wants to reinstitute it.

[vaberella]

47. He doesn't but he's bound to protect the constitution.

And that's the whole point.

[Bluebear]

50. Yes, like this:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9324728

[vaberella]

53. I have a question. Is that case for the religious thing the law of the land?!

Is it a law of the constitution? If not, I think it's like comparing apples and oranges.

[damonm]

56. Ummm...no.

this video from Rachel's show last night sheds light:
http://www.msnbc.msn.com/id/3096434/#39679402

[elana i am]

37. ok i'm confused. i don't know what the proper legal procedure is for all this.

i just hope that whatever the admin is doing that it's completely legal and ultimately permanent.

i won't advocate for obama to just use an executive order to end DADT and be done with it. i didn't like it when shrub did it and i don't like the idea of obama doing it either because it smacks of trying to undermine the authority of congress to make and repeal laws. it needs to be done completely legal, through the proper procedures, so it can't be found to be improperly executed and then undone at some point in the future.

[vaberella]

48. That's the bloody point.

No one on this damn site knows the proper legal procedure -- but they're reading bloggers who claim to know. Until we have someone who has diagnosed the legalize verbiage of the law and the role of the President/DOJ to defend the constitution and laws there in--- then we really have nothing.

[msanthrope]

68. I know--and I've been accused of being a homophobe for merely

explaining the proper legal procedure...

[nofurylike]

45. thank you very much for posting this, Writer! it is clear, and it is

important.


peace and solidarity

[ieoeja]

57. I would rather this went to the Supreme Court.

Imagine if the New York legislature had responsed to the Stonewall riot by repealing their sodomy laws. Instead of all such laws across the country being declared unconstitutional, we would still be fighting to end sodomy laws. Ending DADT and DOMA would not even be on the radar.

I would like to see the Obama admin request the Supreme Court fast-track this. That is what the Supremes did in the case that came out of the Stonewall riot. Of course, they can not force the Court to fast-track it. But they could ask.

[Renew Deal]

58. More proof that Obama doesn't want to end DADT!!!!

He says he wants to end it which clearly means HE DOES NOT WANT TO END IT! What do you people not understand?

[boppers]

61. I understand Lawrence v. Texas

Right now, it's been found unconstitutional in California, but it's still legal for the US military in Germany to enforce DADT, because a circuit judge in California has *NO AUTHORITY OVER ARMED FORCES IN GERMANY*.