During tonight’s North Carolina senate debate, Sen. Richard Burr (R-NC) said he was against changing the 14th amendment to eliminate birthright citizenship, but said “it is important for the courts to determine” if the “founders” intended to allow for the practice:

BURR ON THE 14th: But I think when you have a debate in the country and that issue is raised, then it’s important for us to have that arbitrator, the courts to come in and tell us did our founders, when they wrote the 14th, did they have something else envisioned?

But the opposite should happen to Don’t Ask, Don’t Tell, Burr insisted. That policy should be taken out of the courts and left to Congress. He didn’t know if being gay was a choice but worried that repealing the policy would require the military to change “the accommodations for troops”:

BURR ON DADT: Now personally I don’t see a reason to reverse it. But that’s a personal opinion. I think the country should have a debate. And what we should do is we should wait until the Department of Defense has gotten back the survey of those individuals who serve…. But I’m confident of this—that this is the wrong time to change this policy. We’ve got hundreds of thousands of troops deployed. We don’t yet know what we might have to do, from a standpoint of changing the accommodations for troops if the policy changed.

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As Pam Spaulding points out, Burr’s concern about “soap dropping in the shower,” so to speak, is unfounded. American soldiers are already showering alongside gay troops and so are the foreign troops who serve alongside openly gay servicemembers. None of our 25 allies that allow open service segregate troops on the basis of sexual orientation. As Larry Korb argues in this report, “the militaries of Great Britain, Canada, and Israel amply demonstrate that lifting the ban on openly gay service will not require the U.S. military to provide separate housing, shower, or other common-use facilities for gay and lesbian service members.” In fact, even General Carl Mundy, commandant of the Marine Corps from 1991 to 1995 and an opponent of a repeal, has predicted that segregating the forces “would be absolutely disastrous in the armed forces. … It would destroy any sense of cohesion or teamwork or good order and discipline.”

On the topic of health care, Burr said that he supported provisions that ban insurance companies from denying coverage to applicants with pre-existing conditions and close the Medicare Part D doughnut hole, but insisted that the Affordable Care Act must still be repealed.

“Actually, Judy, those provisions are acceptable to me and most Republicans and most Americans,” he said. “I think it’s important to realize we could have the elimination of pre-existing conditions tomorrow. We could have the elimination of lifetime caps tomorrow. We could begin to close the doughnut hole tomorrow. But you can’t fix the current health care bill that the president passed. And the truth is it doesn’t close the doughnut hole.”

This morning, Lt. Dan Choi denounced White House senior adviser Valerie Jarrett for suggesting that those who urge the administration not to appeal a recent federal court decision overturning Don’t Ask, Don’t Tell don’t “actually understand” President Obama’s duty to defend existing laws. “I’m so absolutely upset at the things she could be saying at this moment,” he began. “Valerie Jarrett said that gay people, some of us should try to understand the politics and the situation and that we are a nation of laws. Well we understand that, we don’t need a lecture from Valerie Jarrett on that.”

This afternoon, Jarrett appeared on CNN’s The Situation Room and doubled down on her argument that the Justice Department must appeal the ruling, insisted that Obama can’t change the policy through executive order and falsely suggested that Obama has already admitted that the policy is unconstitutional:

JARRETT: [Obama] can’t simply sign an executive order to revoke it or he would have. So we’re asking Congress to repeal it. And until then, the Justice Department has no choice but to defend the laws that are on the books and that’s what the Justice Department is doing. But we want it to end and end as soon as possible.

BLITZER: One legal scholar suggested today that perhaps the president could go ahead do what he needs to do, but at the same time make it clear to everyone that he thinks this law is unconstitutional.

JARRETT: He has done that. He did that as recently as last week at a town hall meeting. He said that he thinks this law should be absolutely repealed. He does not believe in this law. [...]

BLITZER: Will you push for repealing Don’t Ask Don’t Tell during the lame duck session?

JARRETT: I know the president has said he wants it repealed as quickly as possible….we share the frustration of people who think it should be done right away. We wish it had been done sooner. But we are determined to get it done.

BLITZER: If Dan Choi were here what would you say to him?

JARRETT: I appreciate his frustration. I share his frustration and I understand that for somebody who has served proudly in the military that he thinks this is an outrage. We think this is an outrage, too. And we think that focus should be directed at Congress. Because Congress is the one that passed it in the first place. Congress is the one who should repeal it.

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LGBT advocates have argued that Obama could also use his stop-loss authority to prevent the military from discharging individuals based on their sexual orientation and have claimed that the White House does not have to appeal the ruling if he believes that it is unconstitutional.

This morning, Ted Olson — former Solicitor General under President George W. Bush — agreed with this emerging consensus, saying “It would be appropriate for them to say ‘the law has been deemed unconstitutional, we are not going to seek further review of that.’”

Significantly, Jarrett also refused to say that Obama would lobby for repeal during the lame duck session and incorrectly suggested that he had said that the law is unconstitutional during the MTV town hall. At that event, Obama dodged the question and instead reiterated his promise that “This policy will end and it will end on my watch.”

Earlier today, Marc Ambidner suggested that the Pentagon — which on Tuesday sent a guidance to recruiters instructing them to accept gay and lesbian enrollees — may adopt a more lenient approach towards enforcing Don’t Ask, Don’t Tell following the 9th Circuit Court of Appeals’ temporary stay of the policy. At a briefing this afternoon, officials hinted that they may be pursing a softer approach towards the ban, telling reporters that discharges will now require the approval of the “service branch secretary.” In other words, only five people in the entire Department of Defense will be able to discharge a gay soldier under the policy:

Discharges under the military’s ”Don’t Ask, Don’t Tell” policy will now take the approval of the service branch secretary, and only in consultation with the defense department general counsel and the undersecretary of defense for personnel and readiness, according to a pair of memoranda issued by senior military leadership today.

Until further notice, pursuant to a memorandum from Defense Secretary Robert Gates and a follow-up memorandum from Undersecretary of Defense for Personnel and Readiness Clifford Stanley, no service member can be discharged under DADT without the ”personal approval of the secretary of the military department concerned, and only in coordination with me and the General Counsel of the Department of Defense.”

A senior defense department lawyer briefed reporters on Thursday afternoon about the memos, saying, ”These two memos are primarily in reaction to … the temporary stay last night. We are clearly in a legally uncertain territory.”

The temporary stay will likely remain in effect until after October 25, when the court decides whether to leave it in place pending an appeal of Judge Virginia Phillips’ ruling that the policy is unconstitutional.

Read the new memorandum HERE.

This morning, White House senior adviser Valerie Jarrett responded to the Ninth Circuit Court of Appeals’ decision to temporary stay a lower judge’s injunction of Don’t Ask, Don’t Tell, insisting that the administration had a duty to defend the policy. “Until Congress repeals it, the Justice Department is doing what it is required to do and that is, to defend the laws of the land,” Jarrett said. “But I want to be very clear that the president thinks it is time for the policy to end, and that’s what he intends to ask Congress to do”:

JARRETT: You know what, the Justice Department is required to defend the law of the land. Believe me, we wish there were another way because the President has been so clear. And I think there are many members of the gay community who actually understand this and who are working with us to try to put pressure on Congress to repeal it. It’s clear that the vast majority of American people think that it should not be the law. And we are determined to have Congress revoke it. But we have to go through that orderly process.

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It’s not just those in the gay community that don’t “actually understand” the White House’s insistence on mischaracterizing its duty to defend existing laws. As Ted Olson — former Solicitor General under President George W. Bush — explains, “it happens every once in awhile at the federal level when the solicitor general, on behalf of the U.S., will confess error or decline to defend a law.” “I don’t know what is going through the [Obama] administration’s thought process on ‘don’t ask, don’t tell,’” Olson said. “It would be appropriate for them to say ‘the law has been deemed unconstitutional, we are not going to seek further review of that.’”

But the White House has refused to say if President Obama still believes that the law is constitutional — as he told Anderson Cooper earlier this year — and has shied away from issuing an executive order placing a moratorium on future discharges. Meanwhile, a new CBS News poll finds that 56 percent of Americans favor allowing gays and lesbians to serve openly, while 31 percent oppose letting them do so.