I claim no particular expertise in matters military, but decided to do a little research and actually read the statutes in question, both the repeal itself, which is short and the DADT statute from 1994, 10 U.S.C. 654, which is short as well.
Let's start with the DADT statute itself, 10 U.S.C. 654. Recall that this statute was passed in 1994 by Clinton and the Democrat Congress to "soften" the absolute prohibition against homosexuals in the military which had existed and was enforced via discharge of the Service member. Congress had been silent on this issue prior to 1994. The DADT policy did liberalize the law (which is why Clinton was for it), in that it allowed the possibility that closeted homosexuals could serve, as set forth in parts (A)-(D) below:
A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations: (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that— (A) such conduct is a departure from the member’s usual and customary behavior; (B) such conduct, under all the circumstances, is unlikely to recur; (C) such conduct was not accomplished by use of force, coercion, or intimidation; (D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and (E) the member does not have a propensity or intent to engage in homosexual acts.
The repeal of DADT does not, insofar as I can see do anything other than restore the status quo ante, that is: It returns the United States Code to silence on the subject of homosexuals in the Armed Forces, other than the prohibition on sodomy in the UCMJ (which applies to both homo and hetero-sexuals), 10 U.S.C. 925. The text of the repeal is very short: It provides:
"(f) Treatment of 1993 Policy-
(1) TITLE 10- Upon the effective date established by subsection (b), chapter 37 of title 10, United States Code, is amended--
(A) by striking section 654; and
(B) in the table of sections at the beginning of such chapter, by striking the item relating to section 654.
(2) CONFORMING AMENDMENT- Upon the effective date established by subsection (b), section 571 of the National Defense Authorization Act for Fiscal Year 1994 (10 U.S.C. 654 note) is amended by striking subsections (b), (c), and (d)."
Congress would still need to pass changes in the UCMJ and that would have to be done in the next Congress, which is highly unlikely.
The repeal statute, which is linked above does nothing affirmative to permit homosexuals to serve, and inoint of fact, it states:
"(d) Benefits- Nothing in this section, or the amendments made by this section, shall be construed to require the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions of `marriage' and `spouse' and referred to as the Defense of Marriage Act).
(e) No Private Cause of Action- Nothing in this section, or the amendments made by this section, shall be construed to create a private cause of action."
Of course, Obama is going to change the regulations to permit open homosexuals to serve in the military. Clinton could have done the same thing in 1994, but public opinion dissuaded him and he hid behind DADT as his attempt to split the difference.
The point I am making is that under Article 2, Section 2 the President is the Commander in Chief of the military and, absent some act of Congress pursuant to its power (under Article 1, Section 8, cl. 14) "to make Rules for the Government and Regulation of the land and naval Forces", the President is free as Commander in Chief to set the policy for the Armed Forces. Even absent the sodomy statute, a new President needs to do nothing more than repeal by Executive Order Obama's soon to be promulgated Executive Orders liberalizing the policy and issue new policies defining such conduct as a "General Article offense" incompatible with good order and discipline pursuant to General Article 134 of the UCMJ, 10 U.S.C. 934:
"Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court."
So much of the harm Obama and his friends on Capitol Hill have done can be remedied by the expedient of electing a conservative President who puts the military first.
SOURCE: FREE REPUBLIC
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