Thoughts on alternate histories and "don't ask, don't tell": In 1948, President Harry Truman issued executive order 9981, calling for an end to racial discrimination in the armed services. It took nearly four years for integration to become a reality. Of the three major branches of the armed forces at that time (Air Force, Navy, and Army), the Air Force complied most quickly; the Navy took only slightly longer to comply; and the Army dragged its feet, creating "integration" plans that would maintain segregated units and keep in place a 10% quota on African-American enlistments, arguing for "tests" of integrated units with gradual implementation elsewhere, and even stating (through the Secretary of the Army, Kenneth Royall) that the Army was not "an instrument for social evolution." By the time the Korean War was in full swing, most Army units were desegregated, more out of necessity for combat troops than for enlightened thinking on racial issues.
Truman chose, instead of seeking legislation from Congress, to issue an executive order in his role as Commander-in-Chief. Either way would have been constitutionally permissible; but Truman, a son of Missouri, knew full well that Congress would never prove amenable to eliminating racial discrimination in the armed services via legislation. Truman, a man of considerable determination and a certain amount of pugnacity when it came to presidential powers, chose the boldest and most direct path to achieving what he wanted.
President Bill Clinton faced a similar issue in 1993 with regard to gay and lesbian service members. The outcome of that was legislation enshrining the policy known as "don't ask, don't tell". The goal was to reduce the number of service members being discharged based on their sexuality. The reality is that more service members were discharged once the policy began than were discharged before the policy was begun.
President Barack Obama has inherited both the "don't ask, don't tell" policy and the campaign promises made to end the policy from President Clinton. To date, repeal legislation has stalled in the Senate, and while it may be reconsidered after the November elections, the likelihood is that repeal will not seriously be taken up until 2011 or later.
It's fun to play "what if?" with history, to spin out scenarios based on what might have happened if only so-and-so had done thus-and-such. Let's look at a couple...
1. Clinton issues an executive order. Bill Clinton could have issued his own executive order, similar to Truman's in 1948, mandating an end to sexual orientation discrimination in the services. As with racial desegregation, the heads of the various service branches probably would have grumbled but ultimately have complied with the order. For Congress to interfere by passing legislation countering that order could be seen as an infringement on the President's constitutionally-mandated powers as Commander-in-Chief -- and as usual in such cases, absolutely no one could predict what decision the Supreme Court would have reached when the case inevitably arrived at its doorstep.
2. Clinton issues a stop-loss order. Federal law states, in part: 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. Practically speaking, no matter what Congress might say about who can and can't serve, the President can override it by finding some reason - individual or blanket - to say they can serve. In fact, the old phrase "don't you know there's a war on?" is probably the best blanket reason of all; it served for Vietnam, Korea, and World War II, after all. And Congress would have to risk looking foolish enough to turn its attention away from other pressing issues to take on the President who is, after all, just doing his duty under existing law.
So what can our current President do to end a policy on whose repeal he campaigned? Plenty.
He can refuse to appeal cases striking down "don't ask, don't tell". As Commander-in-Chief, the President can order the Pentagon not to have its lawyers appeal. As head of the Executive Branch, the President can set priorities on which cases the Justice Department should pursue aggressively - and which to leave alone. It costs money and time to prosecute a case, much less to appeal it. In a recession, is this really the best place to spend scarce resources?
He can issue a stop-loss order. And for all the same reasons as #2 above.
Or he can grow a pair. In a case decided by the Supreme Court, President Andrew Jackson was reported to have said, "The Court has issued their opinion. Let them enforce it." The Senate is refusing to let a defense appropriation bill come to the floor because it contains language that would end "don't ask, don't tell" conditioned on a report to be issued by the Pentagon in December. Screw 'em, especially that great friend of the serviceman John "did you know I was a POW in Hanoi?" McCain. Issue the stop-loss order, let the decisions declaring "don't ask, don't tell" unconstitutional stand without appealing them, strip the amendment from the appropriation bill, and dare the Senate not to pass it this time. Give at least one of your constituent groups a good reason to come out and vote for the Democrats next month.
Hell, give me a good reason to come out and vote for the Democrats next month.
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