Must the President Defend Don’t Ask, Don’t Tell?

Thom Lambert —  16 October 2010

Usual caveats for a Lambert weekend post: Post is off-topic for this blog and represents my own opinion only.

Well, he’s done it.  President Obama has ordered his Department of Justice to appeal the district court order abrogating Don’t Ask, Don’t Tell.  DOJ initiated the appeal on Thursday.

Mr. Obama says that he has no choice but to do this.  While he is so very deeply opposed to Don’t Ask, Don’t Tell — not opposed enough to make a solid push for legislation to repeal the highly unpopular law during the two years that his party has controlled Congress, but really, sincerely opposed — his Department of Justice is required, he says, to defend all the laws Congress passes. 

I suppose that this requirement comes from the Take Care Clause of the U.S. Constitution (Art. II, Sec. 3), which says that the Executive “shall take Care that the Laws be faithfully executed.”

But wait a minute… The Take Care Clause didn’t stop Mr. Obama from ordering his Justice Department to refuse to enforce the federal marijuana laws in states that permit medical marijuana.  One would think that if a duty to “faithfully execute” the laws means you must defend them, it also means you must enforce them.  After all, “enforcement” of a law is more clearly a component of execution than is “defense” of that law.  One could, of course, interpret the Clause to vest the enforcement prerogative in the Executive, so that he has the authority to refuse to enforce some federal laws.  If that’s the case (and I believe it is — see Heckler v. Chaney, 470 U.S. 821, 832 (1985) (“[T]he decision of a prosecutor in the Executive Branch not to indict has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’ ”)), then the medical marijuana stance is appropriate.  But if the Clause permits this sort of discretion on enforcement, which lies at the very heart of execution, then it surely gives the Executive the authority to refuse to defend repugnant, constitutionally suspect statutes. 

Indeed, every modern President has decided not to defend the constitutionality of some challenged statutes.  Here are some recent examples of cases in which a President has ordered his subordinates to join lawsuits opposing federal laws or to refuse to defend such statutes (HT: John Aravosis):

  • George W. Bush (ACLU et al., v. Norman Y. Mineta — “The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems.”);
  • Bill Clinton (Dickerson v. United States — “Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda…. Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court’s Miranda cases.”);
  • George H. W.  Bush (Metro Broadcasting v. Federal Communications Commission);
  • Ronald Reagan (INS v. Chadha — “Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.”)

There are others.  See, e.g., American Federation of Government Employees v. Pierce, 697 F.2d 303 (D.C. Cir. 1982); Consumers Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982); Consumer Energy Council v. FERC, 673 F.2d 425 (D.C. Cir. 1982); Clark v. Valeo, 550 F.2d 642 (D.C. Cir. 1977); McCorkle v. United States, 559 F.2d 1258 (4th Cir. 1977); Atkins v. United States, 556 F.2d 1028 (Fed. Ct. Cl. 1977); National Wildlife Federation v. Watt, 571 F. Supp. 1145 (D.D.C. 1983); Pacific Legal Foundation v. Watt, 529 F. Supp. 982 (D. Mont. 1981).

Putting aside the legal arguments, though, the most troubling thing about this situation is how easily it could have been avoided.  A huge majority of Americans (over three-quarters) oppose Don’t Ask, Don’t Tell.  The President insists that he does too, and he concedes that the policy hurts the armed forces of which he is Commander-in-Chief.  (In his own words: “’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.”  Also: “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.”)  For two years, Mr. Obama has been supported by a Democratic congressional majority that has shared his views on DADT and has been so willing to do his bidding — public opinion be damned! — that it’s about to lose its majority status.  Had the President stepped up, judicial resolution of this issue would never have been required.

My friend Patrick Guerriero, former executive director of the Log Cabin Republicans, recently emailed me the statement he released when the Don’t Ask, Don’t Tell lawsuit was filed.  The statement said:

A lawsuit should not be necessary when public opinion overwhelmingly favors gays and lesbians serving openly and honestly. A lawsuit should not be necessary when the experience of our allies in the war on terror, including Great Britain, Israel and Australia, all allow gays and lesbians to serve openly and honestly. A lawsuit should not be necessary when our military has lost thousands of needed military personnel under this policy. However, under these circumstances, where we are a nation at war fighting a global war against terrorism, we can no longer sit by and wait for our elected officials to find the political courage to do the right thing.

Patrick made that statement on October 12, 2004, during George W. Bush’s first term.  How appalling is it that the lawsuit has still proven necessary after two years of a Democratic administration and one of the largest Democratic congressional majorities in history?

More on this issue here and here.

Thom Lambert

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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.

7 responses to Must the President Defend Don’t Ask, Don’t Tell?

  1. 
    looking closely 19 October 2010 at 8:21 am

    Note that it IS perfectly legal under DADT for homosexuals to serve in the military.

    They’re just not permitted to discuss their sexual orientation or engage in detectable homosexual behavior while in service. (Note that all sorts of OTHER sexual behavior is also regulated by the military, too, including adultery).

    The military, meanwhile, is not permitted to ask about any individuals sexual orientation, nor investigate it, without good reason to believe that one of the above two rules have been violated.

    In short, any homosexual can serve in the military so long as they keep their sexual preference and activity private.

    In my opinion, its not the ideal situation, but its a reasonable transitional compromise to full open service, especially given that are still plenty of military forces that don’t permit gays to serve at all.

    The issue here isn’t whether or not gays should be allowed to serve openly. . .the issue is WHO GETS TO MAKE THAT DECISION. It seems evident to me that an appeal judge shouldn’t get to dictate military policy. As Commander-in-Chief President Obama DOES have the ability to dictate this policy unilaterally. . .he just refuses to do so.

  2. 

    Instead of asking the population if they oppose DADT, why don’t you ask the one percent who actually serve. As Secretary Gates pointed out in his recent speech at Duke University, the majority of the Armed Forces comes from the South, Midwest, and Mountain West. This is, for the most part, the constituency that would be alienated by the repeal of DADT. If it were repealed, would we see more of the liberal bastions of the Northeast, West Coast, and Academia encouraging their children to serve in the Armed Forces, or are there so many thousands of gays just waiting for repeal so they can sign up? DADT does not keep gays from serving.

  3. 

    No caveats needed Thom. Great post.

  4. 

    But wait a minute… The Take Care Clause didn’t stop Mr. Obama from ordering his Justice Department to refuse to enforce the federal marijuana laws in states that permit medical marijuana.

    There’s no evidence that such an order exists. There is, however, evidence to the contrary, as his Justice Department continues to prosecute legal dispensaries.

    Remember, what he *says* and what he actually *does* have no relation to each other.

  5. 

    How appalling is it that the lawsuit has still proven necessary after two years of a Democratic administration

    It’s not at all appalling. What is appalling is the public behavior of out gays. See for example the San Francisco Folsom Street Fair and any municipal Gay Pride parade. You can Google search for Zombie Time Blog and follow the links.

    If you want to serve, keep your private lifestyle choices to yourself and leave the rest of us, including your fellow members of the military out of it.

  6. 

    More fool you for placing your hopes on Obama and the Democrats. Take a closer look at just who really supports the free and unfettered rights of the individual. Hint – it’s not the social engineers and soi-disant champions of diversity.

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