Wednesday, October 20, 2010

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. ( 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?


  1. While I'm definitely not up on US law/politics (coming from Australia), is it possible that the reason they are appealing it is to be sure that it is as airtight as possible? Like playing Devil's Advocate; they are arguing against something they actually want to make sure it is as strong/constitional as possible so when people who actually disagree with it challenge it, they will fail.

    Again, this is an outsider point of view on the issue.

  2. Beats me, Kazim. Between this and the Obama administration's invoking the State Secrets ruling every single time the US is sued for anything regarding the badly-named war on terror (despite promising during the campaign that he wouldn't do so)...

    I have to wonder if Obama considers himself a liberal at all. Ed Brayton says that Obama's actions are impeachable at this point.

  3. I would say there is a game of political chicken going on...the only problem is that the democrats have not realized the Republicans ran into them a long time ago.

    For example, it was long considered an informal agreement between the parties that each side did not go after the other side’s senate leader. The democrats have not put any special effort into unseating Republican senate leaders for that reason...because if they do it, then the Republicans might do it. What they have not realized though, is that Republicans stopped abiding by that rule in 2004 when they went after and beat Tom Daschle (and now going after Reid). Dems where hesitant and told not to filibuster Republican presidential appointments and legislation, because if they did, then the Republicans would do it next term. But, if they let Republicans govern, then when the dems were in power the republicans would let the dems govern. Of course, this did not happen. The Republicans did not swerve in this game of chicken, and I think we really have to consider the fact that we are in a totally different political climate. The Republicans have thrown out the old rules of polite politics in favor of a win at all cost no matter what mentality. The Republicans are not interested in compromise or bipartisanship. They are concerned with appearances. They want to be viewed as the party that can get stuff done, while making the dems look like the party that cannot. In this way the Republicans think they can win elections. The democrats are playing a different game. They have an idealistic view of how government should work, and are playing that idealistic game. I truly think that Obama wants to create a government in which the two sides can get together and hammer out an agreement. And I think Obama believes that the way you do that is to “practice what you preach.”

    I do not think that is strategy is a bad one. But I think that the Democrats have to be able to brand the other side for it to work, and they have to have the media echo chamber go along with and reinforce that branding. I have seen no indication that the democrats have been able to do that.

  4. Part 2:

    As for needing to enforce legislative laws, look at Proposition 8 in California. While the governator’s name is on as the defendant in the attempt to get the amendment removed from the state constitution, he refused to defend it and made private organizations defend it. While technically Obama has an obligation to “defend the law of the land” he could just let the judges ruling stand.

    Obama seems to think the only way to make change is to get a majority of the people to go along with it. Part of the argument I have heard as to why the legislature should overturn DADT is that if Congress does it, then the Republicans cannot cry about activist judges and win elections that way. I think he is also worried about a backlash against gay people if they are seen as enforcing some action by court order against the will of the American people, and a backlash against his party. The problem is he and the democrats are running so scared of the Republicans they have forgotten that they need to be beholden to their own party. Repeal of DADT is pretty fundamental to Democrats, and if he still insists on defending it, then he should not be wondering why so many liberals are complaining about his presidency. Further he has forgotten that the majority of Americans and the majority of congress want DADT repealed, but it is the minority republican opinion in this case that is enforcing its will on the majority. This is a good case to brand the Republicans in the same way that the Republicans have branded Democrats. But then again, the problem is the Democrats do not have the media branding apparatus in place to do that successfully. Further…and lets be perfectly honest here…liberals are more thoughtful than Republicans on the whole. By that I mean we are less likely to buy into the branding war…we see the shades of gray in the world, so there is no guarantee I think that such a branding would ultimately be effective for our side.

  5. I left two long comments, but they have not been posted, so they might have gotten lost somehow. Here is a much shorter version of what I said:

    technically Obama has an "obligation" to enforce the law, but he can certainly say he is satisfied with the ruling and not appeal. Obama is worried about a real thing here, that if he starts breaking the informal political rules that would be cover for the Republicans to do it also. The thing that he is leaving out is that Republicans have been breaking many of the informal rules for the past ten yeas, and there is no reason to think that if an issue that was as important to the Republican base as this is to the Dem base came up, that Republicans would again break the informal rules to accomplish the goal.

    Now, Obama could be trying to plan a different game here. He may actually want to restore sanity and civility to the process. And I think he actions reflect that desire, in that to restore sanity and civility you must yourself act in such a way that does that. You cannot win at that game by being insane and uncivil.

    And if Obama's goal is to win elections, appealing it might still make sense. But he needs to appeal it on the bases of wanting a higher court to strike down the law. But by making his administration take actions that are unpopular with the public, he is hurting his cause. ANd by taking positions that are extremely unpopular with his base he is really hurting his cause. That enthusiasm gap he has bitched about could be reduced if he would give his base something to get enthused about.

  6. You know, as I said on TAE blog, I just don't get it.

    Obama turned out to be just like every other politician out there.

    Even if he wasn't, would he even actually have the power to affect any real, and permanent change?

    "Fool me once . . ."

    Seriously, how many times are people going to continue to vote for the next lizard?

    "[ . . .] if they didn't vote for a lizard," said Ford, "the wrong lizard might get in. Got any gin?"

  7. It sure seems like people are willing to bend over backwards to create scenarios where breaking a promise isn't really breaking a promise. It all looks like politics as usual to me.

    Ive always said the biggest problem I have with most democrats is that they seem to very easily convince large groups of the populace that they aren't politicians. I never saw any evidence or track history to suggest that things would be significantly different with Obama.

    I work for medicare. The biggest joke to me has been how insane people got about the huge "health care reform". Ultimately a few minor things were passed that they are now trying to pay for, mostly by forcing anyone making good wages ($85k+) pay more. We can argue about the merits of how much the "rich" should pay for how many of the "poor". That's a legitimate debate. But what is so significant or different than any other democratic administration? I realize the other side wouldn't allow them to do what they wanted. Again, what is different?

  8. rrpostal,

    You work for Medicare, ergo the government is paying your bills, and that needs to be paid for somehow. That "somehow" translates to a progressive income tax, as it has throughout most of the nation's history. The major difference is that taxes at the very top rate are very low compared to other times in US history, and compared to those of other developed nations. This is a major cause of deficit spending.

    The top marginal tax rate has been as high as 94%; it was over 70% between 1936 and 1980. Now it's at 35%. During those 44 years, the government was able to manage some pretty hefty infrastructure projects, which is why we get stuff like roads and bridges and the internet. I don't agree with the knee jerk reaction that public projects are evil because they require money to pay for them.

    Also, your 85k number is way off; the sunset of the Bush tax cuts that are responsible for most of the current deficit is aimed at those making 250k and above.

  9. Kazim, You are creating an argument that isn't there. Like I said, there is a legitimate debate about tax structure. I didn't mean the people who have money should not pay taxes. Nor would I. I do think that at some point the whole thing stops being feasible and breaks, but I am NOT saying we are at that point or even implied anything is being unfair. It is a legitimate debate. I don't know how else to say it. My real point was the democrats always have more costly public programs and the republicans always reject them, regardless of the specific merits, and that seems typical.

    I've been paid with tax monies for many years, BTW. In the military at the post office and now. I don't see how that is a revelation?

    And my $85,000 is EXACTLY CORRECT in the context I was using it. In order to pay for medicare's new drug rules, people making over $85k pay more. The same goes for part B medicare and it's been that way for some time. Everyone under $85k ($170k joint return) pay in the minimum bracket for medicare (although very low income can have their state pay this cost for them). It's not a number I pulled out of my butt, I quote it every single day, many times a day. That's how medicare works.

  10. My mistake, I assumed you were speaking about the new health care plan passed on March 23, 2010. The paper you linked was from 2009, before the details of the plan were even worked out. I don't have a breakdown of how the new plan is handled in the budget, do you?

    My real point was the democrats always have more costly public programs and the republicans always reject them, regardless of the specific merits, and that seems typical.

    I agree that that's the usual talking point. It tends to break down when you look at actual spending under Republican administrations.

    What I would say is that Democrats tend to have different priorities than Republicans, focusing more on safety net programs and infrastructure, whereas Republicans tend to step up military spending. The discussion over whether taxes are too high is, IMHO, a red herring, as the budget is going to have to be covered one way or the other. Reduce taxes on one end and you just increase interest payments down the road.

  11. I am not sure that Republicans always oppose costly programs and Democrats always support them. Kazim is more accurate as to the focus of the two parties. Republicans are just as willing to vote for big ticket items as Dems are, it is just that the big ticket items have to met a few conditions (all of which can be seen in the Medicare Part D vote, which passed on the strength of Republican, votes and nearly opposed by every single democrat).

    1) Big ticket items have to support the rich or corporations. Medicare part D was a big windfall for corporations, partly for the reason in number 2
    2) there cannot be anything in the bill that increases regulation on business, or allows government to have any negotiating power or hold over business. In Medicare Part D, unlike the rest of the medicare program, the republicans did not include any rule that would allow medicare to negotiate with business for the drugs. Instead, each drug had to be bought as if the individual was buying it on the open market, and not as a bulk purchaser
    3) The big ticket item cannot raise taxes, even if it increases the deficit. Medicare part D was not paid for. The cost of it was MORE than the cost of the Obama health care bill. (both were 1 trillion over ten years...but 1 trillion in 2006 is worth more than 1 trillion in 2010)

    Dems support costly government programs also. But when the Democrats support cost programs, they usually include two key things

    1) The ability for government to negotiate with the supplier for the cost of the product, the same way any large business would. Businesses will negotiate with government because they can make a profit of selling to the government, however, they would prefer that the government not be able to negotiate with them, because they can sell the product at a much higher price. Democrats allow the government to use the free market tools of economy of scales to reduce cost. Republicans do not.
    2) Democrats include ways to pay for the expensive items. Usually that includes some combination of a tax increase or a spending cut elsewhere.

  12. Sorry if I came off too... my first post. I really just get fed up with politics in general. I voted for Obama but immediately felt bad like I always do.

    I don't know a whole lot about a whole lot, but medicare I know. The newest medicare drug reform, is going to pay for "improvements" to the Part D drug benefits by using the same brackets as the ones for part B I linked to. They still haven't determined how much the upper brackets will pay, so there's no current data (even though the 2011 info booklets were mailed and the plans begin in 6 weeks- people are expected to sign up without knowing the full cost). They may wind up paying so much for drug coverage that they would be better off without the Part D and paying cash. I know I would strongly consider it if I wasn't such a philanthropic guy (and I made that much money!). That's why I showed those brackets. Personally I think part D is broken. But in trying to fix it, they are pushing more burden on to the people who are already paying more than the coverage is worth. I don't have the answer, I just watch the ship sink each day and tell people to enjoy the view.

    Have a good time in Seattle. My Dad lives out there as well. I'm going to try to get my daughters out there this spring. Enjoy. I'll look for you on AaA. Maybe bring those folks some much needed theist callers.

  13. @Robert- I think I just bungled a nice big response. I was just commenting on how messed up Part D is from my perspective and how it simply isn't sustainable. Too late to try again, but here is the last part I saved that you may find interesting:

    WalMart is making a push to get a big chunk of the low premium market with their Humana brand. I'm not saying you're wrong about them buying meds in bulk. I really don't know how they are doing it. But WalMart is offering a plan for $14.80/mo this year in many areas and the next closest price is more than double that. While they also keeping the common drugs at lower than most cost. they are not always the best choice if you need some specific high cost meds, but for a cheap plan to get common cheap drugs, they seem okay. Funny how Wallyworld does that. They also have the contract to give low income people free meds until their plan goes into effect. I admit they handle it better than the previous group. I don't know how they are compensated for that contract. While many other heavy hitters in insurance are bailing on Part D, WalMart / Humana are filling the void.
    If it's all as easy as the big companies are raping everybody, then we should do something yesterday. But we need to make sure we keep up the R&D. My family has a lot to thank for a couple of very new medicines that have been developed within the last 10 years. Whatever the answer, I want that system to continue. I've seen a few numbers about how our greedy and bloated pharma companies and their stooges make more than our share of the "new" medicines. I think a link to a paper is here:
    G'night all.

  14. Waiving a law against supporting child soldiers? Stroke of the pen. Done.
    Waiving DADT? bla bla bla bla Can't do it.

    If anyone could explain that to me I might take BO seriously.

  15. This blog post was correct about a lot of points but I think the media spin on it gave a false impression to the author Russell. If you take a look at the court letter to stay the worldwide removal of DADT, it's just that, a stay of the order, not an appeal to the order. I may be wrong in that there might be more than this one document that adds clarity to the issue but this is the best that I could surmise from the resources out there on the matter. You can read the approval letter here: