In the 16 days since Senate Republicans (and two Democrats) filibustered the National Defense Authorization Act and the amendment to begin the process of repealing Don’t Ask, Don’t Tell, Congressional Democrats, mainstream newspapers and progressive organizations have argued that the bill stands a slim chance of passing in the lame duck session of Congress. Instead, they’ve pressured the White House to end the policy by not appealing a California court decision that found the ban unconstitutional or issuing an executive order prohibiting the military from implementing administrative action on the basis of sexual orientation:
- New York Times editorial on appeal: “If the military’s unjust policy is not repealed in the lame-duck session, there is another way out,” the editorial notes. “The Obama administration can choose not to appeal Judge Phillips’s ruling that the policy is unconstitutional, and simply stop ejecting soldiers.” [9/21/2010]
- Palm Center releases appeal analysis: The White House has “a strong foundation for not filing an appeal to the recent case which declared ‘don’t ask, don’t tell’ unconstitutional.” DOJ has an obligation to defend existing law, the report notes, “[h]owever, it would be inaccurate to characterize this common practice as a mandatory requirement that DOJ must always defend federal laws in all cases, without exception.” [9/22/2010]
- 69 House Democrats urge DOJ not to appeal: “We hope that you, as the Commander-in-Chief of the Armed Services, will take this opportunity to restore integrity to our military and decline to appeal Judge Phillip’s ruling.” [9/24/2010]
- Pelosi predicts Obama will end ban: “That will be gone by executive — that will happen with or without Congress,” she said. “I don’t think it has to depend on whether it passes the Senate,” she continued. “The process will work its way through and the president will make his pronouncement.” [9/29/2010]
-Sen. Udall and Gillibrand circulate appeal letter: So far 16 senators have signed on to the letter that asks DOJ not to appeal the California decision. The Senators have also started a public petition. [10/04/2010]
But despite all this, The Advocate’s Kerry Eleveld is reporting that the White House is still committed to pushing repeal through the legislative process after Congress reconvenes in November:
The President has repeatedly said he wants a lasting and durable solution to DADT, and he continues to believe that the Senate should follow the bipartisan action in the House to repeal the statute. The White House continues to work with the Congressional leadership on a host of issues that need to be addressed when they come back into session, including passage of the National Defense Authorization Act. We are not commenting on contingencies if the Senate does not act because we expect the Senate to act – it is the right and fair thing to do and it is in the national security interest of the country for it to get done.
Congress may have a small window to pass the bill probably after the Pentagon study group releases its report on DADT, but that would require a relatively clean bill of health for repeal and strong Democratic push-back against GOP attempts to prevent Congress from accomplishing anything in its lame duck session.