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Wall Chair in Corporate Law and Governance
University of Missouri Law School

Thomas A. Lambert is the Wall Chair in Corporate Law and Governance and Professor of Law. Professor Lambert’s scholarship focuses on antitrust, corporate and regulatory matters.

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Obama Throws Gay People Under the Bus (Again).

Please do not miss this, folks.

The President of the United States has now ordered his Department of Justice to fight a group of Republicans who secured a court ruling that the “Don’t Ask, Don’t Tell” policy is unconstitutional and are trying to have it enjoined. This from a man who promised during his campaign that he would fight to repeal DADT; who has convincingly and correctly declared that the policy impairs the effectiveness of the United States military, of which he is Commander-in-Chief; who has been willing to put principle before political expediency, as when he boldly stood up for the constitutional rights of Muslims to build a mosque near ground zero; and who has mad political skills, as he demonstrated in orchestrating an unprecedented use of the reconciliation process to enact legislation that was opposed by a majority of Americans and is now so unpopular that not a single Democratic member of Congress is campaigning on his or her support for the legislation.

Mr. Obama insists that it his duty as President to defend and enforce the laws of the United States. But he had no problem instructing his Justice Department to ignore federal laws prohibiting the possession and sale of medical marijuana. (I’m not suggesting he was wrong on that; he wasn’t. I’m just saying it’s a bit hypocritical to insist that you always must enforce and defend all the laws Congress passes when, in fact, you sometimes haven’t done so.)

Mr. Obama also insists that a legislative repeal of DADT would be superior to resolution in the courts. On that point, he is absolutely correct. To ensure social stability and legal legitimacy (and to limit the politicization of judicial appointments), fact-intensive, value-laden decisions are best left to the political branches, whose democratic credentials and fact-finding abilities greatly exceed those of courts. I’m frankly suprised to hear Mr. Obama assert this sort of “institutional competence” argument, though.  He was my Constitutional Law professor and was very clear about his support for Roe v. Wade, the poster child for judicial usurpation of a fact-intensive, value-laden decision that should have been left to legislative resolution.

In any event, we would have had a legislative repeal of DADT by now if Mr. Obama had chosen to lead on this issue.  The Democratic Congress has kowtowed to the President for the last two years (see, e.g., the enactment of the unpopular health care law and the vote by 46 of the 54 professed “Blue Dogs’” in favor of the trillion-dollar “stimulus”) and certainly would have fallen in line.  No filibuster would have occurred in the Senate had the issue been addressed earlier and in a less procedurally suspect fashion.  (Senator Collins, for one, would have voted for the bill had amendments and debate not been limited.) 

The President, predictably, is blaming Congress for the mess he now finds himself in (i.e., fighting a Republican attempt to end DADT).  As Press Secretary Robert Gibbs explained, “The President was disappointed earlier this week when a majority of the Senate was willing to proceed with National Defense Authorization Act, but political posturing created a 60 vote threshold.”  But if Mr. Obama had led on this matter earlier, he surely could have secured a legislative fix.  After all, more than three-quarters of Americans oppose DADT

Ultimately, the buck stops with you, Mr. President.  In fact, you might want to take a page from the President who popularized that phrase. He, like you, faced military leaders who were afraid to change a discriminatory policy that was ultimately undermining our military’s strength. He, however, chose to lead.

And to the many gay people out there who generally oppose undue government intervention in private ordering (economic affairs included) but who reflexively support big government politicians because they’re “good on gay issues,” please grow up.

(More here.)

Filed under: musings, politics, war