Nice to see a whole bunch of legal scholars saying what gay bloggers and activists have been saying for two years: Obama could halt the enforcement of DADT today. He doesn't have to wait on Congress, he doesn't have to aggressively defend DADT—or DOMA—in court, and he could issue a stop-loss order right now.
There are two different arguments for why Obama could choose not to enforce the law. The first one: he could say it was unconstitutional. At the time that DADT was passed, it was constitutional because there was no Supreme Court precedent establishing that homosexual relationships are protected under the implied privacy rights of the Bill of Rights. Then, 10 years later, the Supreme Court ruling in Lawrence v. Texas overturned an anti-sodomy statute on the grounds that it violated the privacy rights of gay couples. Since then, laws that impinge upon the sexual-privacy rights of gay couples are presumed unconstitutional if they have no rational state interest to justify them. “Since Lawrence v. Texas, you can no longer discriminate against gays without reason,” says Mazur. “The constitutionality of ‘Don’t Ask Don’t Tell’ has changed since Congress enacted it.” Given that top military leaders have said that DADT is harmful to the military, Obama could have simply announced that, absent the state interest to justify DADT, it is now unconstitutional and will no longer be enforced.
Obama’s other option: simply using his executive power to decide how the laws will be, or won’t be, executed. So Obama could simply order the military to stop applying the law, or to use it much more narrowly and infrequently. “There are a lot of laws on the books he doesn’t rigorously enforce,” notes Geoffrey Corn, a military law expert who teaches at South Texas College of Law. “The courts have recognized that while Congress has full authority to pass laws, the president has authority over when to enforce laws,” says Turley. Many criminal statutes, for example, are often unenforced and prosecutors have a lot of discretion on when to bring charges and what sentence to seek....
If Obama didn’t pursue one of those permanent solutions, he could temporarily let gays serve while waiting for the courts or Congress to act by using his stop-loss power, which was explicitly granted by Congress in 1984 to override military discharges if troops are needed. “Stop-loss authority is a statutory authority enacted by Congress,” Mazur explains. “It gives the president authority to suspend any law that involves the discharge of service members. In times of national emergency there might be lots of reasons.” Given all the accounts of valuable servicemen and servicewomen, such as Arabic translators, being discharged under DADT, it would seem a fairly straightforward case for Obama to make. That would buy a couple of years for Congress to act or the current legal challenge to reach the Supreme Court. “The president has not openly discussed why [he is not using stop-loss],” says Mazur. “Typically, he has denied that he has any such authority and no one has really pressed him as to why.”
Gay bloggers, activists, and The Advocate's Kerry Eleveld have been pressing him as to why for more than a year and a half. We're still waiting for an answer—a truthful one.