NEW STUDY SAYS OBAMA CAN LEGALLY STOP DADT WITHOUT CONGRESS

In my posting yesterday, I said that President Obama could end, or at least suspend, the DADT policy himself.

Well, imagine my delight this morning when I saw a new study published by the Palm Center, a think tank at the University of California, Santa Barbara, that said the President does, indeed, have the authority to end DADT on his own authority.

In fact, according to the study, the President actually has several options available to him. Here is what the study itself said:

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.”

Diane H. Mazur, Professor of Law at the University of Florida College of Law and another study co-author, said the presidential authority to stop firing gay troops, known as “stop-loss,” is different from the highly unpopular stop-loss policy that the Army recently announced it would phase out. “That use of stop-loss forcibly extends service by those who wish to leave the military,” she said, “whereas suspending discharges for homosexuality would do the opposite: allow ongoing service by those who wish to remain in uniform.” The study says the provisions of the stop-loss law, which are granted by Congress, are “sensible because they give the President authority to suspend laws relating to separation when a national emergency has strained personnel requirements.”

Mr. President, many of us who were, and still are, among your strongest supporters have been saying since the inauguration that we needed to be patient, that you needed time to settle-in. Well, now that we know, without a doubt, that you CAN do this, even our patience is beginning to wear very thin.

I'm sure you're aware that a healthy majority of your constituents, including military personnel themselves, from generals down to privates, have consistently said in numerous polls and public statements that they support the repeal of DADT. With those polls, the release of this study and the current disarray and even impotence of the right wing republican party, we're finding it more and more difficult to understand why this hasn't happened already. The overriding question we all have in our minds just became -- WHAT ARE YOU WAITING FOR?

Mr. President -- NOW IS THE TIME to stand up and BE the "fierce advocate of equality for gay and lesbian Americans" that you unambiguously promised you would be.