an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
DADT: The President, the Senator, the Judge—and the General
According to the Constitution of the United States there are three branches of federal government: the legislature, the executive, and the judiciary. In recent weeks, representatives of all three branches have weighed in on Don’t Ask, Don’t Tell (DADT). The President has pushed for repeal. The Senate on Tuesday took up (but failed to advance) a repeal provision that has been approved by the House. A federal judge in California held DADT unconstitutional.
This—whether one likes the ultimate result or not—is how our federal government works: Congress enacts legislation; the President enforces federal laws unless and until they are repealed; the courts review the constitutionality of legislation.
Consider, then, this news report about the President’s effort to repeal DADT:
In that effort, he [President Obama] had won the support of his top Pentagon leaders, Defense Secretary Robert Gates and Admiral Michael Mullen, the chairman of the Joint Chiefs of Staff.
And this one about the Senate’s vote on Tuesday:
Ahead of the vote, President Barack Obama’s choice to lead the Marine Corps cautioned against repeal. “My primary concern with proposed repeal is the potential disruption to cohesion that may be caused by significant change during a period of extended combat operations,” Gen. James Amos told the Senate Armed Services Committee.
Question: What’s wrong with this picture?
Answer: There is no military branch of government. In our constitutional democracy, the military is subordinate to the President as Commander in Chief. The President should not need to win “the support” of military personnel. And military officers should not be contradicting the President’s decision that repeal of DADT will not undermine the effectiveness of troops. Civilian control of the military means that the military doesn’t get to weigh in separately on issues of policy.
Most of the time, everybody understands that there is no military branch of government and that the military’s view is that of the President. But on DADT the military has acted as an independent participant. The trouble began in 1993 with Colin Powell who publicly opposed the effort by his Commander in Chief—Bill Clinton—to allow openly gay soldiers to serve. (Powell now supports the repeal measure.) Our constitutional system does not permit Generals to stand in opposition to the President.