Tuesday, May 25, 2010

The constitutionality of the Lieberman Amendment to “repeal” the "don’t ask, don’t tell" military policy

In what is being described as a compromise,  Senator Lieberman of Connecticut and Representative Patrick Murphy  of Pennsylvania are introducing language to repeal the military’s don’t ask, don’t tell policy - - - which is codified by Congressional statute at 10 U.S.C. § 654.   Well, sort of repeal.  The statutory amendment clearly provides that it would strike § 654,  but the timing is not specific. 

Unlike most “effective date” sections in statutory schemes, the effective date in the Lieberman Amendment is not a date certain (such as July 1, 2010), but a set of conditions:

b) EFFECTIVE DATE.  -  The amendments made by subsection (f) shall take effect only on the date on which the last of the following occurs:

(1) The Secretary of Defense has received the report required by the memorandum of the Secretary referred to in subsection (a).

(2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:

    (A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action.

    (B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).

    (C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

A provision requiring the President (or another branch of the Executive)  to “certify” certain conditions is not unique.  For example, the Stafford Disaster Relief and Emergency Assistance Act requires the President to certify natural disasters before aspects of the statutory scheme can be invoked.

Yet having the president certify certain conditions have been met to trigger specific relief under a statute is different from having the president certify certain conditions have been met to trigger the effective date - - - the very existence - - - of the statute.  

The constitutional question this unorthodox process raises is one of separation of powers.  Does this improperly delegate legislative power to the Executive?  Does this give the President the power to “make” rather than to “execute” the laws?   

In INS v. Chadha, the United States Supreme Court ruled in 1983 that Congress could not maintain for itself - - - or more precisely, one of its two houses - - - the power to “veto” a determination by the Attorney General that a particular immigrant should not be deported because of the “hardship” exemption under the statute.   Yet in Chadha, the problem was that Congress was maintaining power for itself. 

In the Lieberman Amendment, it seems Congress might be trying to give some of its power away - - - a situation not unlike Mistretta v. United States, decided in 1989, in which the Court upheld the Sentencing Reform Act which established a Sentencing Commission, importantly placing it within the Judicial branch and thus risking a separation of powers claim. 

But again, the Lieberman Amendment is different because the very date of effectiveness of the statute is delegated to the power of another branch.

With conservatives condemning the Amendment, the compromise of the “conditional effective date” repeal of the compromise policy of “don’t ask don’t tell” may be subject to a constitutional challenge.


(image via)



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It is interesting that ALL of the "Law Prof Blogs" allow for comments -- EXCEPT for the Immigration Prof Blog. They used to, but too many of the comments illustrated why the professors running it are wrong in their analysis. It showed that the public is overwhelmingly opposed to the Immigration Prof's anarchist agenda.

Thanks for maintaining comments here. Tell Bill Hing and Kevin Johnson to not silence our voices. It really is a pathetic and weak move on their part.

Posted by: Johan | May 26, 2010 10:50:02 AM

Thanks for drawing attention to this. I haven't seen this noted in much of the mainstream media coverage. It seems odd that the president gets to veto the legislation or not -- and then gets another opportunity effectively to veto it, when he makes the discretionary policy determination about "military readiness", etc.

At the very least, there is enough constitutional doubt surrounding this method of legislation that one should expect the implementation of the statute to be delayed by years of costly litigation. In my view, it is stupid to enact legislation that invites this kind of uncertainty, especially when it is not necessary. (Unless, of course, the predictable, protracted court delay over implementation is actually considered an advantage of the legislation by some of its proponents...)

Posted by: Anon | Jun 1, 2010 12:37:50 PM

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