Why Repealing DADT Is the Better Choice

Don't Ask Don't Tell (DADT) is still law. I think that it's bad law; however, I also think that President Obama has logical reasons for wanting Congress to repeal DADT rather than allowing a court ordered injunction to halt application of DADT or using an Executive Order to end DADT. Here's why.

It's dangerous territory for the president to attempt to repeal duly passed legislation via exercising his executive power. There is a tendency to make comparisons to Truman's use of an Executive Order to end segregation in the military. It's an invalid comparison. Truman didn't have to contravene existing federal law in order to desegregate the armed forces. Jim Crow segregation laws were a hodgepodge of state laws. It also should be noted that it was five years after Truman issued his executive order before the armed forces were more than 90% integrated.

A good friend feels that Obama needs to play hardball to earn the respect of Congress, either by directing the Justice Department not to appeal the court decision or by issuing an Executive Order to end DADT. I disagree. Obama won't earn their respect, they'll just use his actions as a ground for the ever growing rumblings about impeachment. It doesn't matter that they can't oust him; it didn't stop them when it came to Clinton. Impeachment is a time consuming process and detracts from time that the president needs to spend on important matters such as the economy.

Another risk is that if DADT is repealed by a court order rather that a change in law, it could succumb to the same fate as Brown v.the Topeka Board of Education. In the 1990s, white parents began bringing lawsuits against school systems arguing that the 1954 Brown decision had exceeded the authority of the courts. Specifically they opposed the use of race as a factor in pupil assignment to achieve integration. These cases were filed and won in federal courts. In 2007, the big kahuna of these cases was heard before the U.S. Supreme Court when two cases were combined, Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools (PICS) v. Seattle School District. The U.S. Supreme Court ruled that the school systems in Seattle, WA and in Louisville, KY had violated the equal protection clause of the 14th Amendment by their use of a student's race in deciding whom to admit to particular public schools.

The decision has resulted in public school systems across the country being barred from using race as a factor in student assignments. Some systems have realized that they can still achieve racial integration if they use socioeconomic class in pupil assignments. However, the new trend is the one playing out in my local school system. The newest board members want to abandon the use of socioeconomic class and make assignments to neighborhood schools, the same term used in the 1960s as not so subtle language for maintaining segregated schools. The result has been a resegregation of schools not just in the south but particularly in major cities in the Midwest and Northeast. According to a 2009 report by Professor Gary Orfield, "...40 % of Latinos and 39 % of blacks now attend intensely segregated schools, in which 90 to 100 percent of students are non-White. The typical Black or Latino student attends a school where nearly 60% of the students are low-income, creating a doubly-damaging race and poverty divide that is worsening the isolation felt by these minority communities."


What courts render, they can undo. It took nearly 50 years to undo Brown, I think that it won't take nearly as long to reverse a decision from the courts to repeal DADT. Especially as the current decision is from a federal district court, not the Supreme Court.

Let's say Obama successfully issues an executive order ending DADT. Let's assume that he wins in 2012. DADT will remain repealed. In 2016, he can't run again. Say a Republican wins the presidency, a conservative right winger who ran on a program of promising to reinstate DADT. He/She could follow Obama's precedent and do it using an executive order. He or she wouldn't be making new law; the law was never repealed. Or a party with standing could file a federal lawsuit that DADT was unconstitutional--perhaps some members of the military who believe that DADT demeans morale. SCOTUS agrees to hear the case and holds that the use of an executive order to repeal DADT was a violation of the authority of the executive office because it stepped in prior to there being a chance for Congress to hear and vote on whether to repeal DADT.

All of this is supposition but it's plausible supposition. If I've thought of this, you can bet Obama, who is a true constitutional scholar and a lot more knowledgeable lawyer than I am, has considered this and that he and his staff have been discussing all the angles.

I'd like to see DADT repealed by Congress. However, it's like in the horror movies when some nitwit knocks out the monster and doesn't make certain that it's really dead. If DADT isn't killed outright it will rise again and bite us in the butt.

So what can we do? The bill repealing DADT has already been passed by the House; it's being held up in the senate. Contact the Senators who are sitting on the fence and the leading democrats in the senate. The Servicemembers Legal Defense Network (SLDN) recommends that we contact the following Senators via email, snail mail, or telephone calls and tell them that you support repealing DADT. Harry Reid (D-NV), Carl Levin (D-MI), Susan Collins (R-ME), Olympia Snowe (R-ME), Mark Pryor (D-AR), Blanche Lincoln (D-AR), Richard Lugar (R-IN), Judd Gregg (R-NH), Scott Brown (R-MA), George Voinovich (R-OH), Kit Bond (R-MO), Joe Mancin (D-WV), Lisa Murkowski (R-AK), Mark Kirk (R-IL).

There are multiple sites that you can use to get email, snail mail addresses, and phone numbers for your senators. My favorite is
http://www.contactingthecongress.org/.

Other sites are:
http://www.senate.gov/general/contact_information/senators_cfm.cfm

and http://www.senate.gov/