DADT repeal language
May. 25th, 2010 09:02 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
melanomanI've been looking at the Lieberman amendment for the repeal of DADT. It's been widely panned by the right as a terrible advance of the liberal agenda, and by most of the LGBT boards as a sell-out compromise. As usual, a huge chunk of the early comments show signs of not having read the actual legislation, so I provide it here.
The way I read this legislation, Congress is transferring the power to repeal DADT from its own hands to the executive branch. A determined executive could use this either to defer the repeal indefinitely or to ram it through this year. The SecDef position (currently held by Gates, a republican appointed by Bush) is specifically named as one of the signoffs.
I need to get to work. I'll try to do some serious analysis tonight.
[---------- Time passes --------------]
Things I've heard that I want to respond to.
1. This legislation does nothing. It's just a study.
No. This creates a trigger if passed. When the listed events all occur, DADT will be repealed without needing another act of congress. For example, if the Republicans take back the house in November, then the study completes in December, and the events specified above all occur), then no fillibuster or other stalling tactic in congress would matter.
2. The trigger might never occur.
Absolutely true. If SecDef Gates refuses to sign the stipulation, DADT remains in effect until the SecDef can be replaced by someone who will.
3. This is unconstitutional because only Congress has the power to repeal DADT.
No. This is a rather ordinary proxy of the sort the makes the IRS(e.g.) able to write regulations. Even though the President and others must conduct the actions that satisfy the conditions, they are not repealing DADT, just activating the trigger that congress authorized.
4. A future president could retroactively bring DADT back into effect.
Not without a new act of congress to sign. The trigger defined above takes place when the last of the defined events occurs. Because they are defined as events rather than conditions, they cannot be rescinded. For example, If SecDef Robert Gates were to sign a letter asserting the stipulated items, and later he or a future Sec Def were to state that the stipulated items were no longer true, the signing of the letter would have already happened, so the condition that "the last of the events has occurred" would still be satisfied.
A new act of congress could reinstate DADT or just change the UCMJ to make service by homosexuals illegal again. Short of a finding by the SCOTUS under equal protection, there is no way around this part.
5. Even with DADT repealed, there are still laws in the UCMJ that would make open service illegal.
Mostly true. The sodomy laws in the UCMJ prohibit both oral and anal sex (yes, even consensually; yes, regardless of gender). Unless those laws and laws like them were additionally repealed, the removal of DADT would still leave homosexuals exposed to legal actions and a DD. There is a specific clause in the study authorization asking the Pentagon for a list of UCMJ codes like the Sodomy laws which would need to additionally repealed to make the legislation meaningful, but unlike DADT itself, these would not be automatically repealed. A second act of congress would be required to get rid of these other parts of the code.
Committee Amendment Proposed by Mr. Lieberman
At the appropriate place in title V, insert the following:
SEC. [ARM10802]. DEPARTMENT OF DEFENSE POLICY CONCERNING HOMOSEXUALITY IN THE ARMED FORCES.
(a) COMPREHENSIVE REVIEW ON THE IMPLEMENTATION OF A REPEAL OF 10 U.S.C. § 654.-
(1) IN GENERAL.-On March 2, 2010, the Secretary of Defense issued a memorandum directing the Comprehensive Review on the Implementation of a Repeal of 10 U.S.C. § 654 (section 654 of title 10, United States Code).
(2) OBJECTIVES AND SCOPE OF REVIEW.-The Terms of Reference accompanying the Secretary's memorandum established the following objectives and scope of the ordered review:
(A) Determine any impacts to military readiness, military effectiveness and unit cohesion, recruiting/retention, and family readiness that may result from repeal of the law and recommend any actions that should be taken in light of such impacts.
(B) Determine leadership, guidance, and training on standards of conduct and new policies.
(C) Determine appropriate changes to existing policies and regulations, including but not limited to issues regarding personnel management, leadership and training, facilities, investigations, and benefits.
(D) Recommend appropriate changes (if any) to the Uniform Code of Military Justice.
(E) Monitor and evaluate existing legislative proposals to repeal 10 U.S.C. § 654 and proposals that may be introduced in the Congress during the period of the review.
(F) Assure appropriate ways to monitor the workforce climate and military effectiveness that support successful follow-through on implementation.
(G) Evaluate the issues raised in ongoing litigation involving 10 U.S.C. § 654.
(b) EFFECTIVE DATE.-The amendments made by subsection (f) shall take effect only on the date on which the last of the following occurs:
(1) The Secretary of Defense has received the report required by the memorandum of the Secretary referred to in subsection (a).
(2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:
(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report's proposed plan of action.
(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).
(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.
(c) NO IMMEDIATE EFFECT ON CURRENT POLICY.-
Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met. If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.
(d) BENEFITS.-Nothing in this section, or the amendments made by this section, shall be construed to require the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions
of ''marriage'' and ''spouse'' and referred to as the ''Defense of Marriage Act'').
(e) NO PRIVATE CAUSE OF ACTION.-Nothing in this section, or the amendments made by this section, shall be construed to create a private cause of action.
(f) TREATMENT OF 1993 POLICY.-
(1) TITLE 10.-Upon the effective date established by subsection (b), chapter 37 of title 10, United States Code, is amended-
(A) by striking section 654; and
(B) in the table of sections at the beginning of such chapter, by striking the item relating to section 654.
(2) CONFORMING AMENDMENT.-Upon the effective date established by subsection (b), section 5571 of the National Defense Authorization Act for
Fiscal Year 1994 (10 U.S.C. 654 note) is amended by striking subsections (b), (c), and (d).
The way I read this legislation, Congress is transferring the power to repeal DADT from its own hands to the executive branch. A determined executive could use this either to defer the repeal indefinitely or to ram it through this year. The SecDef position (currently held by Gates, a republican appointed by Bush) is specifically named as one of the signoffs.
I need to get to work. I'll try to do some serious analysis tonight.
[---------- Time passes --------------]
Things I've heard that I want to respond to.
1. This legislation does nothing. It's just a study.
No. This creates a trigger if passed. When the listed events all occur, DADT will be repealed without needing another act of congress. For example, if the Republicans take back the house in November, then the study completes in December, and the events specified above all occur), then no fillibuster or other stalling tactic in congress would matter.
2. The trigger might never occur.
Absolutely true. If SecDef Gates refuses to sign the stipulation, DADT remains in effect until the SecDef can be replaced by someone who will.
3. This is unconstitutional because only Congress has the power to repeal DADT.
No. This is a rather ordinary proxy of the sort the makes the IRS(e.g.) able to write regulations. Even though the President and others must conduct the actions that satisfy the conditions, they are not repealing DADT, just activating the trigger that congress authorized.
4. A future president could retroactively bring DADT back into effect.
Not without a new act of congress to sign. The trigger defined above takes place when the last of the defined events occurs. Because they are defined as events rather than conditions, they cannot be rescinded. For example, If SecDef Robert Gates were to sign a letter asserting the stipulated items, and later he or a future Sec Def were to state that the stipulated items were no longer true, the signing of the letter would have already happened, so the condition that "the last of the events has occurred" would still be satisfied.
A new act of congress could reinstate DADT or just change the UCMJ to make service by homosexuals illegal again. Short of a finding by the SCOTUS under equal protection, there is no way around this part.
5. Even with DADT repealed, there are still laws in the UCMJ that would make open service illegal.
Mostly true. The sodomy laws in the UCMJ prohibit both oral and anal sex (yes, even consensually; yes, regardless of gender). Unless those laws and laws like them were additionally repealed, the removal of DADT would still leave homosexuals exposed to legal actions and a DD. There is a specific clause in the study authorization asking the Pentagon for a list of UCMJ codes like the Sodomy laws which would need to additionally repealed to make the legislation meaningful, but unlike DADT itself, these would not be automatically repealed. A second act of congress would be required to get rid of these other parts of the code.
