On September 9th, California federal judge Virginia A. Phillips ruled that the "don't ask, don't tell" law violates the equal protection and First Amendment rights of gay men and women in the military. Since then, a federal appeals court has decided to permit the military to enforce the law while the decision is being appealed. Which government branch is defending the law? The Justice Department of President Obama, who has vowed to end it:
[President Obama's] Justice Department, following the tradition of defending laws enacted by Congress as presumptively constitutional, has fought efforts to overturn the law and has said the military needs time to develop orderly policies for change. The department also noted that the administration did not support the law “as a matter of policy and strongly believes Congress should repeal it.”
...The House voted to change the policy in May, but in September the Senate voted not to take up the bill.
This last action of the Senate is significant, since the Obama administration is counting on that very body to repeal it. Not only didn't the Senate take up the bill in September, but it also just gained six Republican seats. Just before the elections, Rachel Maddow pointed out the "incoherence" of the administration's policy. Watch:
Maddow: The White House is assuring everyone that the policy will end. And when you drill down on how they say it will end, they say it will end because the Senate will end it -- even though the Senate has just chosen not to end it. And the Senate is poised to get more conservative, not less, in the imminent elections. This is incoherence. ...Unless you believe that the United States Senate after this year's elections is going to do the right thing by gay service members, then the decision by the Obama administration whether or not to appeal this ruling is likely a decision between killing this policy now and letting it survive, probably forever. ...Everybody says the Justice Department appealing this ruling is an inevitability. It does not have to be. It is not inevitable. If the administration believes the law is unconstitutional, there is precedent that supports the administration not appealing it and letting the law die. ...A plan that has no chance of becoming reality is not a real plan, no matter how much you say it is. You can either end it or you can stop saying you will. (h/t: The Raw Story)
The precedent Maddow refers to is President Truman's 1948 decision to end racial segregation in the military by executive order rather than through legislation. If President Obama believes that "don't ask, don't tell" is unconstitutional and knows that the Senate won't repeal it, why doesn't he also end the law by executive order?