The White House has said that they "think" repeal will be voted on during the lame duck session after the election. Gibbs has repeated over and over that there's not a plan to get this done but he think it's going to happen. And now, John McCain says he'll lead a filibuster against the bill:
"When asked how far he would go to prevent an attempt to repeal the controversial policy from being approved in the upper congressional chamber, McCain responded by saying, ‘Absolutely I will filibuster or stop it from being brought up until we have a thorough and complete study on the effect of morale and battle effectiveness.’"
This was not exactly unpredictable. We're told to trust that Republicans won't have a reason to vote no after the election, that they'll find it in the goodness of their big hearts to vote for repeal in December. Those of us in the reality based community have been skeptical of Republicans' good intentions.
If the bill dies in the Senate before the new Congress, it will have to pass both chambers again next year. And with less Democrats in the House and Senate, I doubt that they'll even add repeal to the defense authorization bill. There'd be no way to get it past the Senate Armed Services Committee in the first place, even if Democrats hold on to the majority.
If Republicans gain a senate majority, Senator McCain becomes Chairman of the SASC.
I would be really happy to hear a plan from the White House right about now.
There are some other options though. Former SG Walter Dellinger did a conference call with a GLBT group and had this to say:
DELLINGER: I think it is certainly possible for the President going beyond merely expressing policy disagreements....but we need to distinguish between two senses of unconstitutional. You can say it’s unconstitutional in a predictive sense, that you predict it will be stricken down, and I don’t think you can say it in this case, because the Supreme Court is up for grabs on that issue. But there is also a sense that you can say the law is unconstitutional because you’ve reached your own judgment about the facts of the world that can render the law unconstitutional.
The theoretical rule is that a law that infringes on liberty ...is only constitutional if it advances a governmental purpose. Now, the Solicitor General would assume that Congress can decide the military purpose and here Congress has decided that it advances a military mission...but the President, as Commander in Chief, can make his own judgment that it is not necessary and if he concludes as he has said that it’s harmful to the national defense, then in his belief he doesn’t have to give deference to the political branch, he is a political branch. [...]
There's at least two precedents for this:
"In two cases cases, one from the Reagan administration and one from the George H. W. Bush administration, the government appealed cases, but gave its own view that the law they were defending is unconstitutional...and in both cases a 5-4 court disagreed with the government’s position and upheld the act of Congress."
It looks like the courts might be our only hope to get rid of DADT. If the Obama administration wants the policy to end, they can help kill it.