Presidential Power and “Don’t Ask, Don’t Tell”

On Inauguration Day I wondered aloud about the extent of the new President’s power to overturn the “Don’t Ask, Don’t Tell” regulations in that they rules had been more or less set into stone by a subsequent statute,

… the Obama transition team last week reiterated in the most unequivocal terms its commitment to abolishing the “don’t ask, don’t tell” policy for the military. Given that it is entrenched in law, 10 U.S.C. § 654, that may require more than the stroke of a pen, although certainly the existing rules could be weakened without an Act of Congress.

It was the sort of legal issue that comes up a lot while blogging: something that you think ought to be simple, but you look it up…and it’s not so simple. That leaves a choice: (1) do serious research, letting a hobby eat into work time, but maybe finding something worth writing about professionally as well as recreationally, (2) guess; (3) drop it; (4) write around the problem.

As often as not I pick door #4 and go on with my life. But this time I guessed.

Comes now Prof. Jackie Gardina of the Vermont Law School to argue in Let the Small Changes Begin: President Obama, Executive Power, and Don’t Ask Don’t Tell, that the question I posed does have an answer, and that I guessed right.

This article advocates that President Obama should act unilaterally to change how the Department of Defense (DoD) implements Don’t Ask Don’t Tell. It is a controversial position and not one generally supported even by those seeking to repeal the law. Given President Clinton’s experience attempting to lift the ban on gays and lesbians openly serving in the armed forces, proponents of repeal are hesitant to suggest that President Obama act without first building consensus within the military and Congress. It is widely perceived that President Clinton’s efforts to initiate change backfired, leading to the DoD’s discriminatory policy being codified and slowing his legislative agenda. Conventional wisdom holds that to avoid the mistakes of the Clinton Administration, President Obama must not push Congress or the military too quickly.

President Obama should not wait for Congress to act. He has both the constitutional and statutory authority to implement change immediately. In Part II, I discuss the historical context of Don’t Ask Don’t, specifically focusing on the lessons of the Clinton era and President Clinton’s successful use of executive power to affect gay and lesbian service members. In Part III, I explain why President Obama must act pending congressional action, describing the status of repeal efforts in Congress and exploring potential barriers to success. I also explore the recent circuit court decisions on Don’t Ask Don’t Tell which interestingly set the stage for President Obama’s first executive decision on the issue – whether to seek certiorari in Witt v. Air Force. Finally, Part IV provides examples of five amendments to the current DoD directives implementing the statute that would improve the lives of the estimated 65,000 gay and lesbian members serving under the shadow of the statute.

The crux of the argument seems to be these propositions (footnotes omitted):

• “President Obama has the constitutional authority to alter the implementation of the statute. Article II, § 2 identifies the President as the ‘Commander in Chief of the Army and Navy of the United States’ and the Supreme Court has stated unequivocally that the President has the prerogative to establish rules and regulations for the armed forces.” (Page 22)
• “The Executive may also exercise whatever authority Congress provides within a specific statute. While Congress also has the constitutional authority to establish rules regulating the military, it can delegate that authority to the Executive.” (Page 22)
• “Congress has delegated to the Secretary of Defense the authority to develop the regulations necessary to implement Don’t Ask Don’t Tell” — but hasn’t delegated the power to suspend the Act; thus if the Presidential power to suspend it, pending future Congressional repeal, exists, that authority must come straight from the Constitution. (Page 23)
• Under Youngstown that Constitutional authority doesn’t extend to straight repeal. But it does allow for substantial amendment of the existing regulations. (Page 23ff)

That sounds plausible to me.