Pandering from Obama on Don't Ask Don't Tell

Last week, we noted that a claim seemingly made by Chelsea Clinton that her mother will end "Don't Ask Don't Tell" ignores the statutory (as opposed to executive policy) nature of DADT, and showed that Hillary Clinton herself had foreclosed and disclaimed doing anything other than pushing Congress to repeal 10 U.S.C. § 654. At least the candidate got it right.

The other candidate, however, prefers to pander. "Sen. Barack Obama says if elected president he won't require that his appointees to the Joint Chiefs of Staff support allowing gays to serve openly in the military" - a red herring, since that's exactly what § 654 prohibits, making the opinions of his appointees to the Joint Chiefs of no relevance.

Could Obama simply be using dramatic license to oversell a message that he'll push Congress to repeal DADT? Unlikely, for two reasons.

The first has to do with what he said in his Advocate interview. He was asked: what, if he "were elected ... do[es he] plan to do for the LGBT community -- what can [he] reasonably get done [as President]?" Obama's response gave two examples: "I reasonably can see 'don’t ask, don’t tell' eliminated. [And] I think that I can help usher through an Employment Non-Discrimination Act and sign it into law." The latter, he is clear, requires that he "usher through [Congress]" and sign into law a statute. The former, one must infer by contrast, he will simply "eliminate" without Congressional action - otherwise he would have said that he will "usher through [Congress]" and sign into law a statute that "eliminate[s]" DADT. Even Clinton understands that "the president would [not] have the authority" to eliminate DADT and that "we’d have to get it changed by legislation" if at all (op. cit. supra), and had the courage to tell the Philadelphia Gay News the bad news to its face that they were asking the wrong person.

The other reason to doubt Obama's interest in DADT is that he's a member of Congress running for President. Once we understand that DADT is not merely authorized but enacted by statute, we understand that it can't be "eliminated" without the repeal of § 654. That is ineluctably a job for Congress. And Obama isn't running for Congress - he's running away from it. If given the job he's asking for, he will have less power to repeal § 654 than he does today. As President, he can only "recommend to [Congress'] consideration such measures as he shall judge necessary and expedient," U.S. Const. Art II § 3 Cl. 1 (emphasis added); as a member of the Senate he could write and introduce such legislation. That also begs the question: if President Obama would be in favor of eliminating DADT, why hasn't Senator Obama introduced any bills repealing § 654?

A general observation that arises from listening to Obama's speeches and reading his website, and which is exemplified by the above, if I may: For someone who claims to have taught Constitutional law, Senator Obama seems to have a fairly tenuous grasp on the institutional structure created by the Constitution.

Related:
"[M]ostly it seems to be about him, his sense of destiny, and his appreciation of his own particular gifts" (collecting posts)

Post facto:
Ten things that aren't changing (11/5/08)
Don't Ask, Don't Tell, again (2/1/10)