Why Bachmann Won’t Be Able To Reinstate Don’t Ask, Don’t Tell

The New York Times’ James Dao reports that Michele Bachmann could easily reinstate Don’t Ask, Don’t Tell if she were elected president and made good on her promise to bring back the soon-to-be repealed policy:

Turns out that it wouldn’t be hard to do, legal experts say.

That’s because the law repealing the ban that President Obama signed last December did not expressly order the Pentagon to allow openly gay or lesbian troops in the armed forces. Congress merely laid out a process under which the ban could be lifted. Under that process, the president, secretary of defense and chairman of the Joint Chiefs of Staff had to certify that repeal would not undermine recruiting, retention, morale and other indicators of what is commonly called military readiness.

Once that certification was made and sent to Congress, the secretary of defense then had to prepare and issue new regulations allowing gays and lesbians to serve openly. That is where the process is now: the regulations are being written and the ban will be lifted on Sept. 20.

But because Congress did not require the military to allow open service, a new president could order his or her new secretary of defense to issue new regulations that effectively reinstate the ban, said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which advocates for gay and lesbian troops.

But I would argue that there is some difference between having the authority to keep gay people out of the military and actually having the political capital to do so — particularly for a female president without military experience. To bring back the ban on open service, Bachmann would have to go head to head with the four service chiefs — all of whom authorized the repeal — and somehow convince the armed forces that it’s even operationally possible to push service members back into the closet. Would soldiers have to be trained to forget that some of their colleagues are gay? I mean, how would this even work? And even if she does manage to repeal the repeal, the order would be immediately challenged in court, with proponents relying on the Pentagon’s own study showing that servicemembers don’t mind serving alongside gay soldiers and the real world experience in which the services experienced few problems after the ban was lifted.

And so at the end of the day — regardless of what Bachmann is now saying on the campaign trail — once that toothpaste is out of the tube, Bachmann or any other Republican isn’t going to be able to shove it back in.