Palm Center: President Can Halt Discharges of Gay Military Personnel
A new study by the Palm Center concludes that President Barack Obama has the power to stop discharges of gay military personnel by executive order and without the approval of Congress, should he so choose. The Center has released a "Roadmap of Political, Legal, Regulatory, and
Organizational Steps to Equal Treatment". From the Palm Center's press release:
Under the law “the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States” during a “period of national emergency.” The statute specifically defines a “national emergency” as a time when “members of a reserve component are serving involuntarily on active duty.”
The second and third bases of presidential authority are contained within the “don’t ask, don’t tell” legislation itself. The law grants to the Defense Department authority to determine the process by which discharges will be carried out, saying they will proceed “under regulations prescribed by the Secretary of Defense… in accordance with procedures set forth in such regulation." Finally, the law calls for the discharge of service members “if” a finding of homosexuality is made, but it does not require that such a finding ever be made. According to the study, these provisions mean that the Pentagon, not Congress, has the “authority to devise and implement the procedures under which those findings may be made.”
Read the Palm Center's blueprint here (PDF).