The pen-stroke fallacy

Yes, the President could suspend Don’t Ask, Don’t Tell by Executive Order: if he were willing to make a false finding to evade a valid law. Are we now in favor of abuses of Presidential power, just because one of ours is President?

Andrew Sullivan speaks for many when he writes:

One Last Thing, Mr President: If you believe it is wrong to fire people from their jobs solely because they are gay, as you said Saturday night, stop doing it.

How should he “stop doing it”?  Yes, Harry Truman integrated the services by Executive Order. But there’s a crucial difference:  segregation had been a matter of practice, never enshrined in statute.  By contrast, Don’t Ask, Don’t Tell is law, enacted as a compromise after Bill Clinton’s bold, well-meaning, and disastrous attempt to keep his pledge to end discrimination against gays in the military “with a stroke of my pen.”

So President Obama can “stop doing it” only if he stops obeying the law.

Yes, the President could use the same emergency powers used for “stop-loss” orders to end separations immediately. But the text of the provision granting those powers, 10 U.S.C. § 12305, reads:

The President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States.

On any reasonable interpretation of the term “essential,” a finding that ending DADT separations is “essential to the national security of the United States” would be false,  Losing hundreds of servicemembers a year, out of an active-duty strength of just under 1.5 million, is costly to the services, and losing people in rare specialties, such as Arabists,  is especially costly, but it’s hardly devastating.  Does anyone actually believe that getting rid of DADT now rather than a year from now would change the odds of success in Afghanistan?

So the President would have to make a finding that is false-to-fact.  That would be a flagrant abuse of power. Is the Blue team suddenly in favor of abuses of Presidential power, now that one of our own holds the Presidency?

Of course, if the Pentagon requested that the President invoke “stop-loss” p0wers that would change things; the press, the Congress, and the public are all (excessively) willing to defer to the brass and the Pentagon feather-merchants when it comes to defining what is, and is not, “essential to the national security of the United States,” and the President could not reasonably be accused of abusing his powers if he did so at the request of the acknowledged experts. But equally of course, once the Pentagon was ready to make that request it would be ready to propose repeal of the underlying Don’t Ask, Don’t Tell legislation.  So all roads to success run through the Joint Chiefs and the Office of the Secretary of Defense.

Obama’s problem is to make the change bubble up from the services. And there’s every indication that he is working on that, and doing so successfully.  He has already made his preference clear, and defying the President (unless he leads with his chin the way Bill Clinton did) is rarely a good career move.  A paper shredding the arguments for DADT, and explicitly comparing opposition to repeal to opposition to the racial integration of the armed services by Harry Truman, won a prize awarded by the Secretary of Defense and was published in the Joint Forces Quarterly.  Lt. Dan Choi was invited to speak at West Point.

None of that would be happening except as part of a plan to reverse course on DADT.  (And of course none of it would be happening under President McCain.)

A reversal of DADT that comes up from the bottom rather than down from the top will be much harder for a future Republican President to undo. Yes, patience in the face of injustice is hard.  But that doesn’t make impatience a virtue.

The thing has to be done, and it has to be done sooner rather than later, and it has to be done right.  Doing it right is more important than doing it instantly.  And doing it right is the opposite of “throwing the gay community under the bus.”

I have $100 that says Barack Obama will sign a bill repealing DADT before the end of the current Congress.  Any takers?

Update Kevin Drum makes what I take to be the central point:  it’s useful to keep the pressure on Obama, but his caution doesn’t mean that he’s sold anyone out.  Jonathan takes my bet – no doubt he figures I need the money = and argues that the President could reasonably put an end to DADT separations for critical specialties such as linguists.  I agree; it wouldn’t satisfy the constitutionally dissatisfied, but it wouldn’t be an abuse of power and would constitute a down payment on his promise to end DADT.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

13 thoughts on “The pen-stroke fallacy”

  1. I understand your point about emergency powers, but I actually don't think it is THAT implausible for the President to make a finding that so long as we are fighting two wars that the President claims are necessary and crucial for national security (don't get me started on that one!), we can't be discharging any gay servicemembers. It's certainly less of a stretch than a lot of the arguments made by previous presidents for flouting congressional limits on war powers.

    Of course, when the two wars wind down, the President would have to rescind the order, but in the meantime, it would allow a demonstration that allowing openly gay servicemen and women to serve does not in fact harm military effectiveness and would therefore create the political impetus to pass a repeal of DADT.

  2. Is the Blue team suddenly in favor of abuses of Presidential power, now that one of our own holds the Presidency?

    Yes. What percentage of Obama voters came away from the polls thinking "Now we've better have gotten our Bush, or even better, our Cheney, by God, or there'll be hell to pay." A third?

    We're hardwired for monarchy, I fear.

  3. Dunno what percentage was hoping for “our” Cheney, but I haven’t met any of them.

    Go over to DemocraticUnderground.com. They're pretty thick on the ground over there — multiple calls for, e.g., throwing open Medicare to everyone by executive order, using the FCC to pull Fox News' broadcast license (they don't have one), signing statements to fix the stimulus bill, etc.

  4. On any reasonable interpretation of the term “essential,” a finding that ending DADT separations is “essential to the national security of the United States” would be false, Losing hundreds of servicemembers a year, out of an active-duty strength of just under 1.5 million, is costly to the services, and losing people in rare specialties, such as Arabists, is especially costly, but it’s hardly devastating. Does anyone actually believe that getting rid of DADT now rather than a year from now would change the odds of success in Afghanistan?

    Congratulations. You've just undermined the entire argument for the stop-losses that have been happening thanks to the wars in Afghanistan and Iraq. No single one of those (presumably straight) members of the Armed Forces were individually "essential" to combat operations there either, but even so, the Pentagon and the President were able to justify amending enlistment contracts in order to assure troop levels.

    That's the point: they've been using stop-loss all along with precisely the same justification (and not just by GWB either; Clinton did the same thing).

    This is pandering to the social conservatives, nothing more.

  5. Since the majority of people want to repeal DADT, I don't think too many people would raise issue if he instilled an executive order. And if they do throw a fit, it's really not a stretch to remind them we're in a WAR, children are DYING, and we're telling gay men and women not to help us. That's just absurd. http://www.newsy.com/videos/obama_i_will_end_don_

  6. == Does anyone actually believe that getting rid of DADT now rather than a year from now would change the odds of success in Afghanistan? ==

    If we are low on Arab specialists, uh, yes.

    In fact, the "Left" has long ranted about how getting rid of such specialists seriously hampered our efforts in Iraq and with terrorism in general.

    Quit rationalizing and making excuses.

    Besides, he could also challenge the law as interfering with his Commander in Chief duties (whether he would win or not, at least he would be doing something to show good faith and he certainly has standing to challenge it) or publicly pressure a DEMOCRATIC MAJORITY IN CONGRESS to repeal the law.

    I must have missed both of those attempts.

  7. If it is done by executive order that will be the end of it. Congress will never change the law and the next Republican President will reverse it.

  8. It's hard to believe that so many well-intentioned people can be so very wrong about the law and civic processes. It really sickens me, frankly, that my cohorts in the gay (and gay-friendly) community think abusing the executive order would be just fine in this case. It undermines everything about democracy and the rule of law that we're supposed to be standing for, and proves that the claims many of us made against George W. Bush were motivated by nothing other than political disagreement. Process matters, people. Doing something the right way, even if it takes longer, is vastly more useful than doing it the wrong way but quickly (and, counter to what was stated above, easily reversibly). I can't remember the last time I was so disappointed in my community.

  9. Geoff is right. I don't see how you can make this argument without undermining stop less generally. If you are interested in that, that's fine. But your understanding of this statute is at odds with past and existing executive branch practice and court decisions regarding that practice. Reasonable interpretations of statutes normally take these things into account. Your reading is entirely at odds with those decisions – which do not require individualized decisions and do not demand proof of the kind you suggest ("Does anyone actually believe that getting rid of DADT now rather than a year from now would change the odds of success in Afghanistan?".) Don't those cases deserve at least a mention?

    So, it appears you have it backwards. While I doubt it is intended, you are arguing for special rules for gay people – not the reverse.

  10. DADT is a very convenient way to get out of a contract to serve in the armed forces. Just how many gays have been tossed out? What percentage of those were hoping for an "out" (excuse the pun).

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