Let the Small Changes Begin: President Obama, Executive Power and Don't Ask Don't Tell

Abstract

This article advocates that President Obama should act unilaterally to change how the Department of Defense (DoD) implements Don't Ask Don't Tell. It is a controversial position and not one generally supported even by those seeking to repeal the law. Given President Clinton's experience attempting to lift the ban on gays and lesbians openly serving in the armed forces, proponents of repeal are hesitant to suggest that President Obama act without first building consensus within the military and Congress. It is widely perceived that President Clinton's efforts to initiate change backfired, leading to the DoD's discriminatory policy being codified and slowing his legislative agenda. Conventional wisdom holds that to avoid the mistakes of the Clinton Administration, President Obama must not push Congress or the military too quickly. President Obama should not wait for Congress to act. He has both the constitutional and statutory authority to implement change immediately. In Part II, I discuss the historical context of Don't Ask Don't, specifically focusing on the lessons of the Clinton era and President Clinton's successful use of executive power to affect gay and lesbian service members. In Part III, I explain why President Obama must act pending congressional action, describing the status of repeal efforts in Congress and exploring potential barriers to success. I also explore the recent circuit court decisions on Don't Ask Don't Tell which interestingly set the stage for President Obama's first executive decision on the issue - whether to seek certiorari in Witt v. Air Force. Finally, Part IV provides examples of five amendments to the current DoD directives implementing the statute that would improve the lives of the estimated 65,000 gay and lesbian members serving under the shadow of the statute.