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View Diary: Let the President invoke Truman (443 comments)

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  •  Here are legal arguments... (3+ / 0-)
    Recommended by:
    OLinda, TheMomCat, Eric Nelson

    ...from the  Palm Center:

    10 U.S.C. § 654 (“Policy Concerning Homosexuality in the Armed Forces”) states that a “member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations”: (1) “the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts”; (2) “the member has stated that he or she is a homosexual or bisexual, or words to that effect”; or (3) “the member has married or attempted to marry a person known to be of the same biological sex.” The President of the United States has authority under the laws of the United States and the Constitution to suspend all investigations, separation proceedings, or other personnel actions conducted under the authority of 10 U.S.C. § 654 or its implementing regulations.

    Below we explain the basis of such authority.

    I. The Laws of the United States. Federal law recognizes that the President and Congress share authority to govern the military. In fact, by law currently in effect, Congress has already granted the President authority with respect to military promotions, retirements, and separations in a time of national emergency. This authority includes the power to suspend laws such as 10 U.S.C. § 654. Under 10 U.S.C. § 12305 (“Authority of the President to Suspend Certain Laws  Relating to Promotion, Retirement, and Separation”), Congress grants the President authority to suspend any provision of law relating to the separation of any member of the armed forces who the President determines is essential to the national security of the United States, during any period of national emergency in which members of a reserve component are serving involuntarily on active duty. The statute states:

    Notwithstanding any other provision of law, during any period members of a reserve component are serving on active duty pursuant to an order to active duty under authority of section 12301, 12302, or 12304 of this title, 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.

    This law is colloquially referred to as “stop-loss” authority, and it has been used to suspend the voluntary separation of members of the military who have reached the end of their enlistment obligation or have qualified for retirement. The law, however, gives the President authority to suspend “any provision of law” relating to separation of members of the armed forces, including involuntary separations under 10 U.S.C. § 654. The Army has announced it will phase out the “stop-loss” program, which forcibly retains soldiers who wish to leave after their tours.

    Don't tell me what you believe. Tell me what you do and I'll tell you what you believe.

    by Meteor Blades on Tue Sep 21, 2010 at 10:33:00 PM PDT

    [ Parent ]

    •  Same thing I wrote (3+ / 0-)
      Recommended by:
      OLinda, jmrichardson, moonpal

      in reply to others above. An executive order can stop gays from being discharged, but doesn't change the law. Next time there is a Republican president, the discharges can start again. What an executive order would do is make gays feel safe to come out, but it wouldn't change the law. If the order was reversed, the military would know who is gay, and they would pick and choose which ones they want to kick out.

      •  The next time there is a Republican... (3+ / 0-)
        Recommended by:
        OLinda, bruh1, Situational Lefty

        ...President will at the earliest be January 2013. So what you're arguing is that, in the absence of a Congressional repeal, hundreds (perhaps thousands) of gays and lesbians outed in the next 27 months will be discharged who wouldn't be with an executive order. Nobody, least of all me, is arguing that an executive order is all that is needed.

        Don't tell me what you believe. Tell me what you do and I'll tell you what you believe.

        by Meteor Blades on Tue Sep 21, 2010 at 10:56:06 PM PDT

        [ Parent ]

        •  If you acknowledge (1+ / 0-)
          Recommended by:
          jmrichardson

          that an executive order won't solve the problem, then you have to think about how the law will actually be repealed. If Congress can't do it now, how will they do it after January 2011 when the new Congress takes over? Then what happens if a Republican president takes over in January 2013? What are all the ramifications of that?

          The best scenario would be for the Judiciary to repeal DADT, so it never has to go through Congress.

          •  You're saying an executive order is no.... (1+ / 0-)
            Recommended by:
            JesseCW

            ...solution at all, that it may make the situation worse. I am saying an executive order is necessary but not sufficient.

            Don't tell me what you believe. Tell me what you do and I'll tell you what you believe.

            by Meteor Blades on Tue Sep 21, 2010 at 11:23:13 PM PDT

            [ Parent ]

            •  I'm saying think about (1+ / 0-)
              Recommended by:
              jmrichardson

              what happens when the executive order is issued, and no action happens to repeal DADT. If you issue the executive order, you have to repeal DADT before the next Republican president takes over. That's fine if you think it's the right thing to do. Just don't make it seem like the President can do this without Congress or the Courts.

              •  Which is something I never... (0+ / 0-)

                ...did. Per the diary:

                This would constitute no end run around the military's review of DADT. It would not violate the separation of powers. It would merely do the right thing until Congress makes it official ...

                Don't tell me what you believe. Tell me what you do and I'll tell you what you believe.

                by Meteor Blades on Tue Sep 21, 2010 at 11:41:05 PM PDT

                [ Parent ]

      •  We know that. That's not the fucking (1+ / 0-)
        Recommended by:
        JesseCW

        point. Its the least he could do, and he ain't even doing that. That's the point.

        This is exhausting the level to which people make excuses here. Look, when the loses happen this fall, and given what I have seen, it will happen. It is exactly this kind of behavior that's going to cause it. Not the issue. The behavior. This behavior of not fighting for something, anything. Of making excuses, and thinking that shit will pass the smell test.

        So please spare the whole legal lesson. Its not relevant to the thesis of what the president CAN do.

        •  You're obviously not reading (1+ / 0-)
          Recommended by:
          jmrichardson

          Its the least he could do, and he ain't even doing that.

          Legally, an executive order could end up hurting more gays than it helps. If they come out thinking it's safe, then we get a Republican president who starts the discharges again, all the gays would be out. The military would know who they are and could use that against them. That's my point. Maybe the President knows this, maybe that's why he hasn't just "done something" like you want him to do. The President does not have the legal authority to repeal DADT.

          •  I could respond, but (2+ / 0-)
            Recommended by:
            Wamsutta, JesseCW

            I would get as much out of this exchange as talking to a kitchen table.

          •  I'ma go with the notion that Gay and Lesbians (1+ / 0-)
            Recommended by:
            Meteor Blades

            don't need me to protect them from themselves.

            The overwhelming majority of them, in and out of the service, favor ending the enforcement of DADT.

            They're intelligent adults capable of judging the consequences of their actions, and deciding whether or not they want to take the risk of comming out while knowing that future Republican President might someday start enforcing it again.

            Pretending they aren't is extremely patronizing.

            We don't a Them to be an Us.

            by JesseCW on Wed Sep 22, 2010 at 04:38:55 AM PDT

            [ Parent ]

          •  You're obviously not thinking. (0+ / 0-)

            Legally, an executive order could end up hurting more gays than it helps.

            On what planet?  And you want to try saying that to the face of the over 1,000 gays discharged since Obama took office?

            If they come out thinking it's safe, then we get a Republican president who starts the discharges again

            Because gays wouldn't see an election coming?  And you know Obama's "compromise" allows the next Republican president to do that anyway, right?

            The President does not have the legal authority to repeal DADT.

            He has the authority to halt it, which is, you know, kinda the whole point to this.  Maybe you should try reading.

            ThAnswr "If the administration can't fight for it's friends, don't expect us to fight their enemies."

            by Uberbah on Wed Sep 22, 2010 at 05:59:57 AM PDT

            [ Parent ]

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