I’ve been wondering something for a while now. Over and over you’ll hear from people who are frustrated by the Obama Administration’s lack of progress on gay rights issues that “he could end Don’t Ask Don’t Tell with the stroke of a pen.” I wasn’t really sure if that was true. Don’t Ask Don’t Tell was the result of a law passed by Congress, so could the president overturn that with an Executive Order?
Today I got curious enough to go in search of the answer and – working under the assumption that I am not the only person in the world with this question – I will now share the answer I found.
It is (drum roll, please)…sort of.
According to a report issued by the Center for American Progress
Careful examination of the laws outlining the president’s powers as commander in chief show that the executive branch has the authority to suspend homosexual conduct discharges without legislative action. Yet because Congress originally passed the ban on openly gay men and lesbians serving in the military, such a suspension will eventually have to be followed up with legislative action reversing the policy.
Congress, in the Authority of the President to Suspend Certain Laws Relating to Promotion, Retirement, and Separation—10 U.S.C. § 12305—grants the president authority to suspend the separation of military members during any period of national emergency in which members of a reserve component are serving involuntarily on active duty.
This provision is commonly referred to as “stop loss” authority. This policy has affected an estimated 120,000 service members since 2001, and more than 13,000 service members are still unable to leave the military because Secretary Gates has stated that the Department of Defense intends to keep the policy for another two years.
President Obama [could] issue an order prohibiting the Secretary of Defense—and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating under the Navy—from establishing, implementing, or applying any personnel or administrative policies, or taking a personnel or administrative action, in whole or part on the basis of sexual orientation. The order [could] further prohibit sexual orientation discrimination within the armed forces and among people seeking entry into the Armed Forces. This would include banning further dismissals on the basis of DADT.
Click here to see the entire report.
So basically, the president couldn’t really take the policy away, but he could stop it from being enforced, as long as we continue to be at war and the military continues to institute stop loss measures. After that, the fix is going to have to be legislative.
I, for one, am happy to finally have that question cleared up.
Becca in Harrisburg
**If you would like to know more about Don’t Ask Don’t Tell – how it came to be, what the problems with it are, and what other countries’ experiences have been – I recommend an excellent book by Nathaniel Frank, Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America.