Reminder - Obama CANNOT use executive order to stop DADT

SANTA BARBARA, CA, May 11, 2009 – A study released by the Palm Center and written by a team of military law experts shows that the president has the legal authority to end gay discharges with a single order.

After the Palm Center first proposed the executive option, the idea of ending the ban by presidential order gained momentum. Congressman Rush Holt endorsed an executive order and National Security Adviser James Jones was then asked about it by George Stephanopoulos.

Prior to the release of Palm's study, many had argued that only Congress can lift the ban on service by openly gay troops. But according to the study, Congressional approval is not needed. Dr. Aaron Belkin, Director of the Palm Center and a study co-author, said “The administration does not want to move forward on this issue because of conservative opposition from both parties in Congress, and Congress does not want to move forward without a signal from the White House. This study provides a recipe for breaking through the political deadlock, as well as a roadmap for military leaders once the civilians give the green light.”

There are three legal bases to the president’s authority, the report says. First, Congress has already granted to the Commander in Chief the statutory authority to halt military separations under 10 U.S.C. § 12305, a law which Congress titled, “Authority of President to suspend certain laws relating to promotion, retirement, and separation” Under the law “the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States” during a “period of national emergency.” The statute specifically defines a “national emergency” as a time when “members of a reserve component are serving involuntarily on active duty.”

The second and third bases of presidential authority are contained within the “don’t ask, don’t tell” legislation itself. The law grants to the Defense Department authority to determine the process by which discharges will be carried out, saying they will proceed “under regulations prescribed by the Secretary of Defense… in accordance with procedures set forth in such regulation." Finally, the law calls for the discharge of service members “if” a finding of homosexuality is made, but it does not require that such a finding ever be made. According to the study, these provisions mean that the Pentagon, not Congress, has the “authority to devise and implement the procedures under which those findings may be made.”

“We all look forward to the report on the review of the ‘Don’t Ask, Don’t Tell’ policy by the Defense Department. In the meantime, the Administration should immediately place a moratorium on dismissals under this policy until the review has been completed and Congress has acted.”