First act of new Clinton Administration: Reverse first act of old Clinton Administration

If I heard her correctly, Chelsea Clinton suggested in a Q&A at Indiana State University today that, should her mother be elected President, the latter regards the abolition of a policy popularly known as “Don’t Ask, Don’t Tell” (“DATD”) as something that she can do “straight away” to help gay rights. That claim seems dubious, and Senator Clinton herself has conceded as much.

Debate over DADT is ill-served by the common misunderstanding that it is a “military policy.” It is statutory law, signed by President Bill Clinton in November 1993,1 and codified at 10 U.S.C. § 654. It directs that a member of the U.S. military will be discharged should they be found to have “engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts” where no mitigating or extenuating circumstances exist, if they have “stated that he or she is a homosexual or bisexual, or words to that effect” (unless they're found to be lying), or if they've attempted a same-sex marriage.

The statutory nature of DADT makes a puzzle of Chelsea’s seeming insistence that a President Hillary Clinton would end DADT as a fairly immediate action. Perhaps she meant that her mother would simply make lobbying Congress a high priority, but that seems a stretch. The one route that might be open for Clinton to immediately end DADT would be to claim authority as the Chief Executive of the unitary executive branch, declare that § 654 infringes on her prerogatives qua Commander in Chief, and order the military to disregard the statute. But that’s problematic, for at least two reasons.

First and foremost, it’s misbegotten as a matter of Constitutional law. Art. I § 8 expressly gives Congress authority “[t]o make rules for the government and regulation of” the military, authority Congress exercised in enacting § 654. As Justice Jackson famously put it in the steel seizure case, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). When a President lays “claim to a power at once so conclusive and preclusive,” warned Jackson, the claim “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Id. at 638.

Nevertheless, in view of some of Senator Clinton’s other proposals, we need not assume that she feels particularly bound by what powers the Constitution does or does not grant.2 And in any event, while such a claim would be audacious, it would not be vastly more so than some of the claims that the present administration has rested on the doctrine. For example, two and a half years ago, Congress passed a bill with an amendment proposed by Senator John McCain providing that “[n]o person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.” 151 Cong. Rec. S11062 (2005). The President signed the bill, but added the caveat in a signing statement that the amendment should be construed by executive branch actors consistently with the President’s inherent Constitutional authority. That is unexceptional enough as a general principle that the choice to say so explicitly is widely assumed to be a sub silentio claim that the administration thinks the McCain amendment clashes with the President’s inherent authority, despite the Constitution’s explicit grant of power to Congress to “make rules concerning captures on land and water.” The point here is simply that the boundaries of what the unitary executive doctrine will actually support aren't the boundaries of what a President with sufficient motivation will try to claim under the doctrine.

The second (and, for Clinton, perhaps more poisonous) problem with such a move is political. As a Senator, Clinton has joined her party’s chorus line in criticizing the Bush administration’s broad reliance of the unitary executive doctrine and its associated tools (a doctrine, I might add, that is even more widely misunderstood than is DADT). Last October, for example, Clinton told the Boston Globe that she wanted to “restore the checks and balances and the separation of powers” and “rein[ ] in” executive power, presumably to a perceived (if arguably apocryphal) status quo ante of her husband’s administration. She criticized what she called the “creat[ion] of a much more powerful executive at the expense of both [other] branches of government,” and, according to the Globe’s characterization of that (alas, unpublished) interview, “said she did not subscribe to the ‘unitary executive’ theory….”

Whether motivated by legal or political concerns, Hillary Clinton herself recognized her limitations vis-à-vis DADT in an interview given to the Philadelphia Gay News earlier this month. Asked whether she would consider ending DADT by executive order, Clinton admitted that “whether the president has authority to do [that] … or not, I’m not sure.” The idea of using a signing statement attached to a military appropriations bill drew skepticism: Clinton would “have that [option] examined,” but didn’t think it was viable. The office of a signing statement, she noted, or at least, “what [President] Bush has done, is to say you’re not going to enforce certain aspects of a law that’s been passed. This is different. There’s a law already on the books, which says the president cannot waive [DADT].” In sum, Clinton concluded, “I don’t think the president would have the authority. I think we’d have to get it changed by legislation….”3 Chelsea, check your email.

A similar dilemma for Clinton arises from a report issued by the University of Colorado Law School, The Boundaries of Executive Authority: Using Executive Orders to Implement Federal Climate Change Policy. That report lays out a blueprint for the use of the tools of executive power to make rapid inroads on environmental policy without waiting on Congressional action. Clinton, no doubt, would be eager to deal with what her website calls “the looming climate crisis” with all speed; can she resist such tantalizing power to advance progressive goals?4 And, for that matter, should she?

A pithy way to put the dilemma is that on being sworn into office, President Hillary Clinton would be handed an exceedingly powerful sword; the choice before her is, should she beat it into a plowshare, or wield it to fight for her own causes?

Thanks to Pat for the research assist on this post. SJD.

N.B. submitted in edited form as a letter to the editor of the campus newspaper.

Related:
How the left will learn to stop worrying and love executive power | Power flows down, responsibility flows up | The President's Brief | "The yes-man is promoted over the yeoman" | Don't Ask, Don't Tell, Don't Take Responsibility | Hillary, in the Boston Globe

Post facto:
Pandering from Obama on Don't Ask Don't Tell (4/13/08)

1. 1. Bill Clinton had campaigned on a promise to reverse an executive order barring gays and lesbians from serving in the military, but "by the end of 1993, opponents of the change, led by Georgia Democrat Sam Nunn, ... succeeded in writing into law the ban on openly gay men and lesbians in uniform. Barring the pre-enlistment question about homosexuality 'was the only compromise Congress let Clinton get away with.'" Mark Thompson, 'Don't Ask, Don't Tell' Turns 15, at Time.com, 1/28/08; see also Thomas Friedman, Compromise Near on Military's Ban on Homosexuals in The New York Times , 1/29/93; Clinton press conference, 1/29/93.
2. 2. The former Goldwater girl has quite definitely become a Larsonite.
3. 3. The enactment of § 654 is thus revealed as a classic example of a backlash ensuing from trying to push too far, too fast, creating an environment even more inhospitable than had previously existed. The consequence is that, arguably, "no new President can eliminate the ban without first convincing a majority of Congress to go along — a far higher hurdle than [Bill] Clinton faced." Thompson, supra note 1. Supporters of gay marriage should have taken note; they did not, and now face a similarly heightened bar in the form of the wave of successful state constitutional amendments.
4. 4. Cf. Mark Tushnet, A Court Divided 14-16 (2006) (discussing the conflict among the New Deal justices as to whether to abandon substantive due process or to co-opt it for their own purposes).