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DADT Ruling Puts Pressure on Congress to Act

September 10, 2010 - by Donny Shaw

A district court judge in California has preempted Congress and ruled “don’t ask don’t tell” unconstitutional, calling it a facial violation of the First and Fifth Amendments. Even though President Obama favors repealing the policy, which bans gay men and women from serving openly in the military, the ruling puts the administration in a bit of a bind.

Normally, the President would appeal any district court decision that strikes a federal statute, and, as Jason Mazzone at Balkinization explains, in this case, the administration has additional legal reasons to appeal — shoring up the requirments of what constitutes a facial challenge, and showing deference to the military in a time of war. On the other hand, Obama and leaders in the military both want the policy repealed, and they are probably worried that Congress won’t act on the repeal while the Democrats still hold enough of a majority to get it passed.

So, all eyes are now on Congress to pass a DADT repeal before the Novemeber elections. The House has already approved the repeal by a vote of 324-194 as part of the 2011 Defense Authorization Bill. And, even more significantly, the Senate Armed Services Committee has done the heavy lifting and included the repeal in the language of the Defense AUthorization bill that they sent to the full Senate. That means that the burden of finding 60 votes to break a filibuster would be on the senators trying to remove the repeal with a floor amendment. The Democrats certainly have 41 votes in the Senate to block such an amendment. The 34 co-sponsors of Sen. Joe Lieberman’s [ID, CT] stand-alone DADT repeal bill (S.3065), including some of the most conservative and most progressive in the caucus, are a good indicator of the depth of the support among Senate Dems.

But the Senate is running out of time. They’ll be returning to D.C. on Monday, but want to adjourn again in early October to focus on their campaigns. Their schedule is already packed with stimulus and job creation measures that are, arguably, more important, and definitely a surer bet as a campaign talking points. Plus, it could take the Senate several days (or longer if the GOP chooses to stall for the sake of stalling) to pass the Defense bill, and then it would have to go to a Senate-House conference committee where other controversial issues, like the House’s insistence on funding an unpopular jet engine program, could muck up the works.

Sen. Kirsten Gillibrand [D, NY] is out front calling on the Senate to take up DADT despite the Senate’s time limitations. “I am confident that we can bring the repeal of ‘don’t ask, don’t tell’ up for a vote on the Senate floor in the coming weeks, and I urge all of my colleagues to abide by the oath we all took and end this policy that tears America’s moral fabric and hurts our military readiness,” a statement from Gillibrand’s office reads. “I strongly hope that the ruling of this policy as unconstitutional will stand and that the Department of Justice will eventually choose not to appeal."

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