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Tuesday, June 23, 2009

Is Janet Napolitano More Powerful Than Barack Obama?

Posted by on Tue, Jun 23, 2009 at 7:57 AM

When it comes to "Don't Ask, Don't Tell," the ban on gays in the military, we've been told over and over again that the president has to enforce the law and only action by Congress can stop the discharges of gays and lesbians—discharged at the rate of two a day since Barack Obama was sworn in—from the military. Congress passed DADT, it's the law, and the president is helpless to do anything about it. (Yesterday seventy-seven members of Congress signed a letter to the president urging him to "use his executive power" to stop discharges under DADT.) The president can't just run around suspending the enforcement of laws he doesn't like, however unjust, however much he might like to. The law's the law.

Tom Banse had a report on NPR this morning about the "widow's penalty." A foreign national who marries a U.S. citizen can apply for permanent residency after a two year waiting period—two years after marrying—but, sorry, if your American spouse dies before your second anniversary, you have to leave the country. And if you don't leave voluntarily the federal government will deport you. It's cold, it's harsh, it's unfair. But it's the law. You know, like DADT: a law passed by Congress, a law that only Congress can repeal, and the administration can't just run around suspending the enforcement of laws it doesn't like. Right? The law's the law. Right?

Wrong:

The widows’ and widowers’ plight came to the attention of Homeland Security secretary Janet Napolitano within days of her taking office. That according to her spokesman Matt Chandler. He says broader immigration and border policy has proven quite complicated. But this was something Napolitano decided to take an early stab at.

Matt Chandler: “There were some sad cases there. We had a responsibility to not only enforce the laws of this country as they are written, especially as it pertains to immigration. But we also have a responsibility to do so in a practical and commonsense way.”

Napolitano has ordered deportations of surviving spouses and their children deferred for two years. That gives Congress time to fix the law if it chooses to.

So the head of the Department of Homeland Security can suspend the enforcement of the Widow's Penalty in order to give Congress time to "fix the law," but Barack Obama—the President of the United States, Commander in Chief, Janet Napolitano's boss—he can't suspend enforcement of DADT to give Congress time to "fix the law." Is that it? Or is Obama administration only capable of recognizing an injustice and taking action when the lives of heterosexuals are being destroyed?

 

Comments (39) RSS

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Shelby 1
It's 76. 76, 76, 76 lawmakers. 77 seems to be a slog-borne error.
Posted by Shelby on June 23, 2009 at 8:12 AM · Report this
Vince 2
Ignore the man behind the curtain.
Posted by Vince on June 23, 2009 at 8:19 AM · Report this
josh 3
The president can't just run around suspending the enforcement of laws he doesn't like, however unjust, however much he might like to. The law's the law.

imagine that it's six months ago: do you really want the president to just pick and choose which laws to enforce on the basis of politics?
Posted by josh http://www.sciencevsromance.net on June 23, 2009 at 8:39 AM · Report this
4
Every single time you talk about legal issues you sound like more of an idiot, Dan. YOU DON'T KNOW WHAT THE FUCK YOU ARE TALKING ABOUT. You're more interested in being pompous, erratic, and completely wrong than actually trying to educate yourself. Legal matters are ALWAYS nuanced, full of caveats, and cannot be reduced to simplicity. I don't care if you have read the DOMA brief, it still doesn't mean that you know what the fuck it means.
Posted by Legally Right on June 23, 2009 at 8:41 AM · Report this
Enigma 5
Keep these posts coming Dan. We need to keep the inequalities LGBT Americans are living under every day.

It's time to stand up for ourselves and demand the rights we deserve as Americans.
protestforhumanrights.com
Posted by Enigma http://washingtonunitedformarriage.org/ on June 23, 2009 at 8:42 AM · Report this
Enigma 6
* "...living under every day" highlighted to the public.
Posted by Enigma http://washingtonunitedformarriage.org/ on June 23, 2009 at 8:44 AM · Report this
7
Hey Dan is there any way slog can completely disallow anonymous comments? The worst, most ignorant, rude, vitriolic, moronic crap tends to come exclusively from those horrible grey posts. I think it's time for slog to shed them like fleas.
Posted by Aedan Robinson on June 23, 2009 at 8:51 AM · Report this
8
@4 shut up you asshole.

IT's only by talking about the LAW that folks understand what the fuck it is. Get off your high hourse and tell us what some of those fucking nuances are if you have a problem with what was written.

Here's the deal:
1. Napolitano is in charge of enforcement via proseuction (deportation orders) and there is always prosecutorial discretion.

2. The action we want Obama is, I believe, to cease "prosecutions" within the military as he acts as commander in chief. I'm not entirely sure but that seems to be the gist of it.

3. Therefore the analogy is correct.

No, the executive cannot just declare laws it doesnot like invalid for that reason (as noted, it can declare laws unconstitutional if they are in its view unconstitutional and not only stop enforcement but order the govt. to obey the constitution which here would mean ordering all federal agencies to provide equal treatment to gays and gay unions).

And douchebag @4, the DOMA brief means EXACTLY what Dan's been saying: the legal position taken by Obama is in effect saying gay marriage is vile and disgusting because otherwise the full faith and credit clause would expressly require other states to recongize gay marriage and the only constitutional way they can't is if we say they are okay with viewing gay marriage as vile and disgusting.

Hey I'm all for slow steady progress thru working to get more votes and legislative action and shit like that. I hate it when "activists" run to the media nd it leads to nothing. I hate protest marches that have no effect. But there comes a moment -- call it the tipping point -- when if you are fucking royally stabbed in the back and if you DON'T STAND UP AND SAY SO AND DECLARE YOUR OWN EQUALITY then buddy, ain't nobody gonna send no cavalry to do it for you.

And that act of bravery leads the fence sitters and those mildly opposed to rethink. They see your bravery. They see the moral corruption and meanness of those oppressing you.

Think of Neda, dude. That film is being burned into the consciousness of millions and that regime in iran can't never survive that shit.

Because people got on the streets and stood up for their rights.

We need the same thing here for gay rights whicih IMHSWSMO are just plain old human rights and the American dream: enmough of this shit, enough of being led on by fucking pussy democrats who do jack shit, time for fucking change dude, so either get with it or get the fuck out of the way with your fear and your smallness. You're wrong legally, you're wrong in the deepest sense of justice and you're wrong tactically. There comes a time when the so-called legal forces only serve to show the injustice of current "law" (um, the regime in Iran is acting legally, the protestors, not) and it's only by CHALLENGING THE IMMORAL LAW THAT YOU EXPOSE IT AND MAKE SOCIAL PROGRESS.

Whew, back to meditation.

Thank you.
More...
Posted by PC on June 23, 2009 at 8:52 AM · Report this
9
The law is "don't ask, don't tell" but we only hear about people getting discharged for telling. Does anyone know, has it ever been enforced for asking? Are people in the armed forces getting discharged for asking a comrade in arms, "are you gay?"
Posted by MikeB on June 23, 2009 at 8:56 AM · Report this
SpecialBrew 10
#9: Interesting, I wonder that too. Although as I understand it the "don't ask" part was merely stripping the question "Are you a homosexual?" from the military enrollment forms. My Dad said they used to ask that in print, and if you were you were ineligible for service. A friend of his avoided the draft during Vietnam by lying and saying he was gay.
Posted by SpecialBrew on June 23, 2009 at 9:00 AM · Report this
11
@8 You're probably right. I only graduated top of my class at Harvard Law, while Dan has a lot of experience talking about blowjobs. He probably knows more about the law. And the DOMA brief DOES NOT mean that, and no reasonable *legal* (read: not political) interpretation of that brief would stand for that proposition. You can bitch all you want, but Dan (and you) still don't know what the fuck you are talking about.
Posted by Go back to school and try again! on June 23, 2009 at 9:00 AM · Report this
12
What about the UAFA, Dan? Can someone please bend the law to give us equal immigration rights too? This is interesting. Why haven't gay rights activists been all over this bullshit as well? My partner and I are so FUCKING tired of moving from country to country as if we are a disease.
Posted by dimitri on June 23, 2009 at 9:02 AM · Report this
13
Ha ha! Top of my class! HL does not ever graduate unhelpful assholes, except all the time!
Posted by gloomy gus on June 23, 2009 at 9:05 AM · Report this
COMTE 14
@7:

Go to the top of the comments section, right below the green box showing the number of comments posted. Click "Unregistered" to "off" - like magic, the anonymous trolls' comments disappear!
Posted by COMTE on June 23, 2009 at 9:09 AM · Report this
15
Dan, seriously-I think DADT is idiotic, unjust, unfair, and should be overturned ASAP. But man, you really don't know what you're talking about here. The reason Napolitano could do this is because the Sec'y of Homeland Security has statutory authority to suspend deportation orders under particular circumstances. It used to be the Attorney General had authority to do so, and this served as the basis for the most significant separation of powers case of the last 30 years or os, Chadha v. INS. Since the creation of DHS, that power has ben transferred to the Sec'y of Homeland Security. It's just a completely inapposite analogy.
Posted by Lawman on June 23, 2009 at 9:10 AM · Report this
kim in portland 16
This doesn't surprise me, she's a family friend and a hell of a woman.
Posted by kim in portland http://www.oregonlive.com/portland/index.ssf/2010/11/fast-paced_video_provides_a_fu.html on June 23, 2009 at 9:13 AM · Report this
17
Dan would have a stronger point if Napolitano started issuing fiance visas to gays. Deporting grieving widows plucks more heartstrings more strongly then keeping gays out of the military does.

But as has been pointed out many times, Obama has a ready-made excuse for suspending dadt during the current military emergency. I think, charitably, he wants to keep gays under the bus only until he can get his health care plan through. The wingnuts are jumping on him for taking his family out for ice cream while freedom-loving Iranians are being gunned down on the streets of Teheran -- working on gay issues while Iran burns would be seen as a lack of prioritization.

Congress recesses in August -- maybe he'll be able to shift focus to gay issues in September.
Posted by Obama health plan now on June 23, 2009 at 9:28 AM · Report this
18
I'm going to be the first and answer your question Dan, and the answer is no, Napolitano is not more powerful than Obama. Obama can ignore or enforce any laws he wants for as long as people let him, just like he can ignore gay rights. I'd explain why but won't, since I have to tend to my bong because it is packed with so much sweet medical pot that I can legally buy in CA without being worried about getting arrested or deported or anything, since ya know, Obama decided not to enforce that law either.
Posted by michaeltimus on June 23, 2009 at 9:30 AM · Report this
19
Oh, and I forgot that North Korea seems able to launch a nuclear warhead on Hawaii.
Posted by Obama dude's got a lot on his plate on June 23, 2009 at 9:31 AM · Report this
20
@15, you funny. The post was a rhetorical question, baby, not an assertion. Quit shadowboxing. But aside from the comment's kneejerk pugnacity, you did offer some new info, so thankee for that anyhoo.
Posted by gloomy gus on June 23, 2009 at 9:33 AM · Report this
Urgutha Forka 21
Can servicemen and women be openly gay/lesbian as long as they don't specifically tell anyone they're gay? I mean, can it be completely obvious to everyone, but they only get kicked out if they actually say it out loud?

Just wondering...
Posted by Urgutha Forka on June 23, 2009 at 9:34 AM · Report this
22
This law is not cold at all.

Citizenship is granted to the spouse for the BENEFIT OF THE CITIZEN. If the citizen passed away, then there's no purpose to allowing naturalization. The way you've written this entry, it's as if the widow(er) was granted something that was never granted in the first place. Besides, if the citizen lived, then there's no guarantee the spouse would have become a citizen anyway.

Please take a look at the way citizenship works in the rest of the world. It is the most relaxed law with the most loopholes, and yet people still complain as if US law is oppressive. Give me a break.
Posted by Nun on June 23, 2009 at 9:39 AM · Report this
23
"Citizenship is granted to the spouse for the BENEFIT OF THE CITIZEN."

First of all, it's permanent residency, not citizenship. Second, slavery has been abolished. The spouse is free to divorce once s/he has a green card.

The two-year rule prevents sham marriages whose only purpose is to get green cards. Otherwise, an enterprising citizen might set up shop in a van outside a Vegas wedding chapel, getting married on Monday and divorced on Tuesday.

Someone who got married in good faith, expecting to make it last a lifetime, should not be punished by a law designed to weed out con artists.
Posted by Obama health plan now on June 23, 2009 at 9:49 AM · Report this
24
#22. You completely miss the point. The post is about Obama's ability to play with the rule of law. It appears that his administration able to do things for heterosexuals but not for the homos.

And YES, US immigration law is in fact cold and discriminatory. For more information please visit http://www.immigrationequality.org/
Posted by dimitri on June 23, 2009 at 10:09 AM · Report this
25
@ Nun: Besides, there's been cases of grieving widows (and widowers) with American born children by their late husbands and wives, which are, of course, damn good reasons to stay in the country.

More than that, there's a large lag between when the paperwork can be done, and when the US government will actually do their thing, so a person can have been married for longer than the two years, but because the government is slow to act, they miss out on their opportunity to stay as a matter of government timing.
Posted by JudT on June 23, 2009 at 10:21 AM · Report this
26
"The post is about Obama's ability to play with the rule of law. It appears that his administration able to do things for heterosexuals but not for the homos."

Yep, the number of Americans who hate widows and orphans is vanishingly small. I can't even think of any derogatory slang terms for either widows or orphans. Helping them out expends virtually no political capital.
Posted by Obama health plan now on June 23, 2009 at 10:26 AM · Report this
27
@21 No, service people don't have to tell someone else in the military to get kicked out. If an informant suspects they are gay and informs the military there is an investigation and they get kicked out if it is decided they are gay. There are people who have been kicked out because someone saw them out looking like a couple with their partner during their off time and informed on them (like the lady in Kansas who was spotted grocery shopping with her partner).
Posted by ev on June 23, 2009 at 11:43 AM · Report this
Original Andrew 28
But Americans don't hate grieving immigrant widows the way they hate us damn, dirty faggots. Well, unless the widows aren't white.
Posted by Original Andrew on June 23, 2009 at 11:52 AM · Report this
29
@3

No, I want him to pick and choose which laws to enforce on the basis of whether or not a law violates peoples rights.
Posted by redwulf25_ci on June 23, 2009 at 11:59 AM · Report this
30
"But Americans don't hate grieving immigrant widows the way they hate us damn, dirty faggots."

Well, at least Americans are not trying to ship you to festering Third World hellholes.
Posted by Obama health plan now. on June 23, 2009 at 12:09 PM · Report this
31
"But Americans don't hate grieving immigrant widows the way they hate us damn, dirty faggots."

Well, at least Americans are not trying to ship you to festering Third World hellholes.
Posted by Obama health plan now. on June 23, 2009 at 12:09 PM · Report this
32
This is a little late, since it was podcast on Friday, but there was a great discussion on Democracy Now (those dirty hippies) between Amy Goodman and Cleve Jones about Obama's lack of . . . anything, followed by an interview with Clifford Alexander's opinions on DADT.

If you don't want to listen to headlines or the news about Iran, just skip to the 9:20 mark.

http://www.democracynow.org/shows/2009/6…
Posted by jade on June 23, 2009 at 1:03 PM · Report this
33
Every single time you talk about legal issues you sound like more of an idiot, Dan. YOU DON'T KNOW WHAT THE FUCK YOU ARE TALKING ABOUT. You're more interested in being pompous, erratic, and completely wrong than actually trying to educate yourself. Legal matters are ALWAYS nuanced, full of caveats, and cannot be reduced to simplicity. I don't care if you have read the DOMA brief, it still doesn't mean that you know what the fuck it means.

Posted by Legally Right

___________________________________________________________________

Your post had nothing to do with this article. This article is comparing apples to apples. Two of the same issues, so go ahead and keep name calling if you like, but instead of calling Dan stupid, you may want to point out exactly why you think he is, and use a specific example of why he is wrong. Because if you don't it becomes obvious that you are merely a shill for the administration.
Posted by Cam on June 23, 2009 at 3:04 PM · Report this
34
@9 and @10 - the answer is no. The military is not punished for asking. A few years ago a serviceman was discharged because they asked the question "have you ever been involved in community theater". They can't ask if he's gay, so they asked that. In their mind, they *were* asking "are you gay" and when he answered in the affirmative, they concluded he had told enough for them to investigate him and kick him out.

The policy really is basically, Don't Tell, Don't Get Caught.
Posted by gexxor on June 23, 2009 at 3:46 PM · Report this
35
The anger and frustration is completely understandable, but it may very well be that the immigration laws give the head of DHS a lot of discretion when it comes to not deporting someone who entered the country legally, while DADT gives no discretion. I'm not familiar with the text of the particular statutes, but I suspect there really is a legal, nuanced reason for this distinction.
Posted by JonboyDC on June 23, 2009 at 3:56 PM · Report this
36
Join this Facebook boycott of the fundraising for Democratic candidates. Enough being taken for granted. http://www.facebook.com/group.php?gid=97…
Posted by lpyoung on June 23, 2009 at 7:59 PM · Report this
Uriel-238 37
Gbtsatra @11, etc. etc. ad nauseum, a lot of good your Harvard effin' law degree is doing you if all you can say is "you don't know what you're talking about" rather than, say, explaining why. The privilege of decrying someone else an idiot only comes with the capability and effort of actually stating a case. Saying you can and then not doing so only makes you look like someone with an ego problem.

The question is no longer what the president can or cannot do, so much as why he's not taking action. We're not waiting on a bill to repeal DADT that is tied up in committee, we're waiting for the bill to get written up in the first place, and asking why the Fierce Urgency of Now hasn't compelled it to get written.

And in the meantime, yes, Obama can suspend continued enforcement of the anti-gay regulations of the UCMJ, and it's part of his fucking job to do so, i.e. to make sure the execution of those laws serve the spirit of their original intent, not merely consequence of their letters.

One doesn't need a Harvard education to be able to determine these things, since all this information is freely accessible online. It's a common misnomer to presume a credential gives one's voice the power of authority as it might within a religious institution. No, an education provides you the tools to make an argument, but you still have to use those tools and craft an argument that stands up to scrutiny.

MikeB @9 et. al. With rare exception, gays in the military are outed due to circumstances, often due to ones that are outright unfair, say the breach of confidence of an attorney or psychotherapist, or one officer violating the privacy of another, say reading his diary. In a lot of cases, one might be out to trusted colleagues, and one falling out, or one snoopy interloper later, the poor soldier is under review. In these cases, the one who violated the privacy of the gay are seldom, if ever, disciplined for such a breach.
More...
Posted by Uriel-238 on June 23, 2009 at 8:02 PM · Report this
38
Yo, Josh #3:
"do you really want the president to just pick and choose which laws to enforce on the basis of politics?"
Have you heard of Bush's signing statements? They allowed the president to pick and choose which laws to enforce on the basis of politics for the past EIGHT YEARS!
Let's have some picking and choosing that is actually helpful and fair to the people and safety of this country, like a PEO to stop loss from the military due to sexual orientation!
Posted by duckie on June 23, 2009 at 10:33 PM · Report this
39
@4, 11: It doesn't take a law degree to determine that we're talking about DADT here, not DOMA. But thanks for trying.
Posted by EndDADT on July 1, 2009 at 5:28 AM · Report this

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