The Audacity of Nope

Thom Lambert —  11 September 2010

Please note that the following post is a bit off-topic for this blog and represents my own opinion only, not that of any of my co-bloggers. But, hey, it’s Saturday.

For the past 599 days, we’ve had a talented young Democratic President and Democratic majorities in both the U.S. House of Representatives and the U.S. Senate. In those 599 days, our talented young President and the Democratic majority in Congress have racked up quite a list of accomplishments. Refusing to be hindered by a lack of popular support for their initiatives, pesky aspirations of bipartisanship, statutory impediments to the outcomes they favor, or constitutional constraints on their power, our talented young President and his fellow Democrats in Congress have:

  • Enacted sweeping health care legislation that was opposed by a majority of Americans, garnered no Republican support, could not pass except via an unprecedented use of the reconciliation process, and appears to exceed Congress’s enumerated powers by imposing a fine that’s not really a tax but also doesn’t regulate commerce (indeed, it regulates non-commerce by punishing Americans who decline to purchase a product from a private seller). 
                                                                                                                     
  • Approved,  with almost no bipartisan support (only that of Senators Snowe, Collins, and then-Republican Specter), almost a trillion dollars in “stimulus” spending, which was largely doled out to politically favored groups (so that we now apparently need to spend another $50 billion to fix all that crumbling infrastructure the first stimulus was supposed to address).                                                                                                                              
  • Nationalized what was until recently the world’s largest automaker, pouring $50 billion into General Motors in exchange for a 61% ownership interest.                                                                                                                                                                                                                                                                         .
  • Circumvented the normal rules of bankruptcy so as to elevate Chrysler’s junior (union) creditors over its senior (bondholder) creditors and ensure that the unions retain control of the company.  (Of course, this occurred only because the Chrysler bondholders refused to kowtow when our talented young President chastised them for asserting their contractual rights.)                                                                                                                                                                
  • Passed, with the support of only three Republicans in the House and three others in the Senate, a 2,300-page financial reform law that creates a new bureaucracy to regulate the provision of credit to consumers, institutionalizes the notion of “too big to fail,” limits the degree to which financial derivatives may simultaneously hedge risk and provide the market with invaluable information about firms’ financial prospects, creates a systemic risk regulator to perform the heretofore impossible task of identifying incipient asset bubbles, and calls for 243 new rulemakings by 11 different federal agencies.  All this while leaving Fannie Mae and Freddie Mac untouched.

Quite clearly, our talented young President and his fellow Democrats that constitute majorities in both chambers of Congress can get things done when they really want to.

Washington Post columnist Eugene Robinson, who recently accused the American public of acting like a bunch of spoiled brats because they appear poised to issue an electoral rebuke to President Obama and congressional Democrats, shares my admiration for the President’s ability to get things done.  In a recent column entitled President Obama’s Winning Streak, Robinson purported to “break from journalistic convention” and “give credit where it’s due — specifically to President Obama.”  He then highlighted four of the President’s recent accomplishments: removing combat troups from Iraq, saving General Motors, stopping the BP oil spill and “persuad[ing]” BP to put $20 billion into a fund for trustee laureate Kenneth Feinberg to distribute (how does Feinberg find the time to do all that trusteeing?!), and displaying moral leadership on the Lower Manhattan mosque issue.  With respect to the last matter, Robinson praised the President for honoring principle over politics: 

Supporting the mosque in Lower Manhattan didn’t score any political points. But Obama saw his duty to uphold the values of our Constitution and make clear that our fight is against the terrorists, not against Islam itself. Instead of doing what was popular, he did what was right.

Given Mr. Obama’s apparent (and, I believe, good faith) commitment to tolerance and equality; his formidable political skills; the unwavering support he enjoys from a solid congressional majority; and his willingness to buck popular opinion, to engage in legislative manuevering, and to bend statutes and push the limits of constitutional constraints in order to achieve goals he deems important, how ironic is it that it took a lawsuit by the Log Cabin Republicans to condemn one of the most crass examples of unjustifiable government discrimination in recent history? “Don’t Ask, Don’t Tell” — a policy that makes lying a condition of public service, that has resulted in nearly 14,000 men and women being discharged from our voluntary military not because they did anything harmful but because of who they are, that has caused us to lose so many qualified military candidates that we have had to lower educational and physical fitness standards and to dramatically increase our issuance of “moral waivers” to felons who otherwise would be barred from military service — is a travesty. Does anyone seriously believe there is a problem with unit cohesion among the British soliders who from the beginning have fought right next to Americans in Afghanistan and Iraq? Or that the Israeli military — you know, the one comprised of men and women who dodge rockets on a daily basis and are surrounded by people that want to wipe them off the map — is somehow weaker because it includes openly gay soldiers?

I know President Obama doesn’t believe those things. In fact, on June 29, 2009, he said:

“Don’t Ask, Don’t Tell” doesn’t contribute to our national security. … [P]reventing patriotic Americans from serving their country weakens our national security. … [R]eversing this policy [is] the right thing to do [and] is essential for our national security.

A few months later, he reiterated:

We cannot afford to cut from our ranks people with the critical skills we need to fight any more than we can afford — for our military’s integrity — to force those willing to do so into careers encumbered and compromised by having to live a lie.

But when asked to flex his impressive political muscle to right the wrong (and stupidity) that is Don’t Ask, Don’t Tell, Mr. Obama has said no. His Department of Justice (yes, Mr. President, you control it) has aggressively fought the Log Cabin Republicans’ attempt to abrogate the policy. Unlike Harry Truman, who in 1948, over the protests of military leaders, ended racial segregation in the armed forces with the stroke of a pen, Mr. Obama has done almost nothing of substance on Don’t Ask, Don’t Tell. Congress must take the lead on this one, he says. (But the Democratic majority consistently follows your leadership, sir.) I must follow the counsel of military leaders and wait on them to develop an elaborate plan for ending the policy, he insists. (But you are commander-in-chief of the armed forces, sir. And what kind of elaborate plan is required to stop affirmative acts of discrimination? Just stop them. It’s not that hard.)

Perhaps I’m being too simplistic here. I realize that the armed forces are special, that there’s no constitutional right to serve in the military, that the military requires a certain discipline and mentality that doesn’t permit free expression of members, that unit cohesion is important, etc. But the facts remain that Mr. Obama has admitted (and campaigned on) his belief that the current policy is both unjust and strategically unwise, that his party controls Congress, and — importantly — that opposition to Don’t Ask, Don’t Tell is politically popular. (Recent polling indicates that 78% of Americans oppose the policy and support permitting openly gay men and women to serve in the military.) Mr. Obama’s refusal to lift a finger on this issue (except, perhaps, his middle one – pointed in the direction of the gay community that has offered him unwavering support), when he has been willing to thumb his nose at popular opinion on so many other matters, is audacious indeed.

Hopefully, the many, many gay people who favor freedom of all varieties (economic included) will learn something from the last 599 days and stop reflexively supporting candidates whose economic policies they oppose just because those candidates mouth the right words on gay rights.

Thom Lambert

Posts

I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.

Trackbacks and Pingbacks:

  1. Obama Throws Gay People Under the Bus (Again). « Truth on the Market - September 24, 2010

    […] (More here.) […]