Unilateral executive power? Don't ask, they won't tell

'Kay, something political is bugging me, it's too long to encapsulate in a brief Facebook update, and this blog has been fallow (in favor of TAE blog and dropping my opinion on Facebook comments occasionally). Clearly this is the place to air this issue.

Last week Rachel Maddow did an interview with Walter Dellinger, a law professor and former solicitor general under President Clinton, to discuss the Obama administration's position on Don't Ask Don't Tell. First, she played a clip of this exchange:

Q I voted for you in the last elections based on your alleged commitment to equality for all Americans, gay and straight, and I wanted to know where you stood on “don’t ask, don’t tell.” I know that you’ve mentioned that you want the Senate to repeal it before you do it yourself. My question is you as the President can sort of have an executive order that ends it once and for all, as Harry -- as Truman did for the integration of the military in ‘48. So I wonder why don’t you do that if this is a policy that you’re committed to ending.

THE PRESIDENT: First of all, I haven’t “mentioned” that I’m against “don’t ask, don’t ask” -- I have said very clearly, including in a State of the Union address, that I’m against “don’t ask, don’t tell” and that we’re going to end this policy. That’s point number one.

Point number two, the difference between my position right now and Harry Truman’s was that Congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally. So this is not a situation in which with a stroke of a pen I can simply end the policy.

Here are the facts about what's happening with DADT right now, as far as I understand them.

1. Obama says he really wants to end the policy.
2. Most Americans agree with him. Polls show a 59% opinion that gays and lesbians should be allowed to openly serve in the military.
3. A clear majority of Congress supports it. A bill was introduced in the Senate that received 56 Yea votes, 43 Nay votes. Naturally, the Republicans filibustered it.
4. Without directly eliminating it, Obama could still order that enforcement of DADT be suspended. He has declined to do so.
   
5. On September 9 (my birthday, in a meaningless aside), a federal court ruled that DADT was unconstitutional and should stop being enforced.
6. The Obama justice department decided to appeal the ruling.

And that last one right there is the part where I say "WTF?!?!?" Because if
- the public wants to repeal DADT, but can't, because they don't have direct power, and
- the president wants to repeal DADT, but can't, because he can't override Congress, and
- Congress wants to repeal DADT, but can't, because a minority is using legal maneuvering to prevent all legislation of any kind, to the best of their abilities

...Then this court order would seem to be the last piece of the puzzle. Here is a perfectly good opportunity to take direct legal action to end the policy that just about everyone wants ended. Doesn't even require any action. Just do nothing. Court ruling stands.

So as I understand matters now from Walter Dellinger, Obama doesn't want to use overtly political tactics to end the policy when he feels that the proper course is to have Congress overturn the law.

As everyone who follows politics at all knows, that isn't going to happen. Democrats right now have the largest majority in the Senate that either party has had since 1981 (see chart) and they couldn't get it done, because Congressional Republicans have engaged in more filibusters than in any other session in US history (as measured by number of cloture votes, see chart). If the Democrats retain control of the Senate at all, it will certainly be a reduced majority. (Electoral-vote.com right now forecasts it at 51-48 Democrats with one tossup.)

So I can't imagine what Obama is thinking will change, when he says "But this is not a question of whether the policy will end. This policy will end, and it will end on my watch. But I do have an obligation to make sure that I am following some of the rules." As long as he leaves it in the hands of Congress and doesn't exercise any of his other legal options, it will most assuredly not end on his watch.

But where Dellinger's take on this gets especially weird is when he explains that the president must not refuse to appeal the ruling, because he wouldn't want to set a dangerous precedent. Imagine it's three years down the road, Dellinger says, with a Republican president in the White House. The president wants to overturn the national health care plan, but can't, for similar reasons. So instead, he finds a single federal judge to declare it unconstitutional, and then he... simply declines to overturn the ruling. Boom, unilateral power to do anything.

I don't actually know the answer to this conundrum -- does the president actually have this power of overturning things based on non-appeal or doesn't he? If he doesn't, then this is all a moot point, but he's doing a terrible job of explaining why it is legally impossible for him to not appeal.

But if he does have this power, well -- it's nice that he's taking the high road and all, but let's be serious. Do you think this hypothetical president will decline to use it? I mean seriously, let's follow through on Dellinger's scenario.

February 2013

Secretary of the Treasury Christine O'Donnell: "Madame President, a federal judge in Kentucky has just ruled that the national health care program is unconstitutional."

President Sarah Palin: "Hey, great news! Let's shut it down right now."

O'Donnell: "Wait, not so fast. Back in 2010, Barack Obama had a similar opportunity to overturn Don't Ask Don't Tell, and he didn't take it. Maybe we should reconsider."

Palin: (blink. blink. blink.)

O'Donnell: (giggles)

(They both laugh uproariously for two minutes straight)

Palin: (wiping her eyes) "Hoo boy, you had me going for a minute there, you betcha."

As I keep saying, the Democrats' constant refusal to win with the tools available to them does not make them smart or principled. It makes them scrubs in the game of politics.

So will somebody please explain to me what the hell Obama is thinking? Does he actually believe Congress will pull through, or is he just doing a dance to avoid responsibility for not repealing the policy? Are federal judges the arbiters of what is deemed constitutional, or aren't they?