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Tuesday, September 08, 2009

Why does not Obama promulgate new "don't ask, don't tell" regulations?

President Obama has angered gay and lesbian supporters by delaying efforts to repeal Section 571 of the 1993 National Defense Authorization Act, 10 U.S.C. section 654, which codified the infamous "don't ask, don't tell" policy, requiring the discharge of service members from the armed forces who engaged in homosexual conduct or states that they are gay. The official White House line is that it is up to Congress to repeal the statute.

This is disingenuous passing of the buck, no? For it is up to the President to execute the statute, and, to my knowledge, the Obama Administration has done nothing to change the old Defense Department directive defining "don't ask, don't tell" procedures for initiating investigations and proving violations. The statute itself says almost nothing significant about initiation and proof of charges, delegating the whole task to "regulations prescribed by the Secretary of Defense" (10 U.S.C. section 654(b)). As commander in chief, Obama surely has an implied power to supervise how Secretary Gates carries out this statutory task (or at least Obama's SG, Elena Kagan, has so argued when she was an academic). Obama's implementing executive order would surely get extraordinary deference. So the ball is squarely in the President's court, right?

Some very small changes to the existing DoD implementation policy (DOD Instruction 1332.14) might effectively end virtually all discharges of service members on account of their discovered sexual orientation. The President, for instance, could simply require that (a) initiation of investigations must be initiated not by the service member's commanding officer but by the Secretary of Defense's Office of General Counsel; (b) no investigation could be initiated absent a sworn affidavit from a member of the service member's own unit; (c) no investigation could be initiated absent a showing of damage to unit cohesion or unit morale, based on a sworn statement by the unit's C.O.; and (d) no presumption would exist that abstract statements of sexual orientation indicated conduct, attempted conduct, or propensity, as required by the statute.

Given the super-super Chevron deference that the President would receive on defense-related matters, I would think that all of these regulations would be easily upheld, assuming that anyone had standing to challenge them. (Suggestion (b) above simply borrows from the statute's own statement of policy). Moreover, such changes could be made with the stroke of a pen, without the fanfare of notice-and-comment rule-making, in the bowels of the Pentagon, as a mere change in "instructions." So is it just cowardice above and beyond the call of political necessity that causes President Obama to adhere to Bush's old implementation policy?

Posted by Rick Hills on September 8, 2009 at 01:02 AM in Current Affairs | Permalink

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Comments

It turns out (of course) that there is already a very nice law review article on the question of Presidential power to write regulations around "don't ask, don't tell: Jackie Gardina of the Vermont Law School argues in "Let the Small Changes Begin: President Obama, Executive Power, and Don’t Ask Don’t Tell" (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1330186) that Obama has several options, including some of those that I listed above. (Gardina does not mention prosecutorial discretion to avoid enforcement except where unit cohesion/morale is threatened, perhaps because that interpretation would probably be the most controversial choice on the menu).

Posted by: Rick Hills | Sep 8, 2009 9:14:19 AM

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