10 U.S.C. § 654 (“Policy Concerning Homosexuality in the Armed Forces”) states that 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) “the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts”; (2) “the member has stated that he or she is a homosexual or bisexual, or words to that effect”; or (3) “the member has married or attempted to marry a person known to be of the same biological sex.” The President of the United States has authority under the laws of the United States and the Constitution to suspend all investigations, separation proceedings, or other personnel actions conducted under the authority of 10 U.S.C. § 654 or its implementing regulations. Below we explain the basis of such authority.
I. The Laws of the United States.
Federal law recognizes that the President and Congress share authority to govern themilitary. In fact, by law currently in effect, Congress has already granted the President authority with respect to military promotions, retirements, and separations in a time of national emergency. This authority includes the power to suspend laws such as 10 U.S.C. § 654. Under 10 U.S.C. § 12305 (“Authority of the President to Suspend Certain Laws Relating to Promotion, Retirement, and Separation”), Congress grants the President authority to suspend any provision of law relating to the separation of any member of the armed forces who the President determines is essential to the national security of the United States, during any period of national emergency in which members of a reserve component are serving involuntarily on active duty. The statute states:
Notwithstanding any other provision of law, during any period members of a reserve component are serving on active duty pursuant to an order to active duty under authority of section 12301, 12302, or 12304 of this title, 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.
This law is colloquially referred to as “stop-loss” authority, and it has been used to suspend the voluntary separation of members of the military who have reached the end of their enlistment obligation or have qualified for retirement. The law, however, gives the President authority to suspend “
any provision of law” relating to separation of members of the armed forces, including involuntary separations under 10 U.S.C. § 654. The Army has announced it will phase out the “stop-loss” program, which forcibly retains soldiers who wish to leave after their tours. It is important to point out that this use of stop-loss has been particularly unpopular because it forces ongoing service by those who wish to leave the military, whereas the use of stop-loss to suspend homosexual conduct discharges would, by contrast, allow ongoing service by those who generally wish to remain in uniform.
10 U.S.C. § 12305 gives the President authority to suspend laws relating to separation of members of the military if two requirements are met. First, the suspension must occur during a period of national emergency in which members of the military reserve are involuntarily called to active duty under sections 12301 (reserve components generally), 12302 (ready reserve), and 12304 (selected reserve and certain individual ready reserve members). As of April 7, 2009, there were 93,993 members of reserve components or retired members serving on active duty after involuntary activation. Second, the President must make a determination that retention of members of the military—and suspension of any law requiring their separation—is essential to the national security of the United States. The conditions of 10 U.S.C. § 12305 are sensible because they give the President authority to suspend laws relating to separation when a national emergency has strained personnel requirements to the point that members of the reserve forces have been involuntarily called to active duty. The constitutionality of 10 U.S.C. § 12305 was upheld in
Santiago v. Rumsfeld, 425 F.3d 549 (9th Cir. 2005).
Under 10 U.S.C. § 123 (“Authority to Suspend Officer Personnel Laws During War or National Emergency”), Congress grants the President similar authority to suspend laws relating to the separation of officer personnel.
The “don’t ask, don’t tell” policy itself, as codified by Congress, also grants authority to the Department of Defense to determine the procedures under which investigations, separation proceedings, and other personnel actions under the authority of 10 U.S.C. § 654 will be carried out. Section 654(b) states: "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 regulation." Under this section, the Secretary of Defense has discretion to determine the specific manner in which “don’t ask, don’t tell” will be implemented. Furthermore, the statute does not direct the military to make any particular findings of prohibited conduct or statements; it only states that members shall be separated under regulations prescribed by the Secretary
if such findings are made. The Secretary has broad authority to devise and implement the procedures under which those findings may be made.
A recent decision of the Ninth Circuit Court of Appeals,
Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008), calls into question whether “don’t ask, don’t tell,” as implemented by regulations prescribed by the Secretary of Defense, violates the due process rights of service members under the Fifth Amendment of the U.S. Constitution.
The court remanded the case for further findings on whether the separation of this specific service member would significantly further an interest in military effectiveness, and whether less intrusive means would be unlikely to further the same interest. The Secretary has authority under 10 U.S.C. § 654 to determine whether regulations implementing the statute are consistent with the ruling in
Witt, whether the regulations should be revised and, if necessary, whether amendments to the statute should be recommended for further consideration by Congress.
II. The Constitution of the United States.
Federal law reflects that the President, the Congress, and the federal courts share constitutional power and responsibility for governance of the armed forces of the United States.
1. Under Article I, Section 8, Clauses 12-14, Congress has the power to raise and support armies, to provide and maintain a Navy, and to make rules for the government and regulation of the land and naval forces. Congress legislated under this authority in enacting 10 U.S.C. § 654.
2. Under Article II, Section 2, Clause 1, the President has the power to act as Commander-in-Chief of the armed forces of the United States.
3. Under Article III, federal courts have the power to decide all cases arising under the Constitution and the laws of the United States. Federal courts have the power to interpret law and ensure that the other branches of government act in accordance with the Constitution.
Although Congress has power to make rules to govern the military, it shares that power with the President, who, as Commander-in-Chief, has power to direct the operation of military forces. If Congress were understood to have sole power to remove members of the military from the chain of command operating under the direction of the President, particularly in a time of national emergency, the President’s ability to carry out his constitutional obligations would be impaired. Therefore, the constitutional authority of the Commander-in-Chief includes at least shared authority to ensure that members of the military essential to national security are not removed from duty.
III. The Regulations of the Department of Defense.
10 U.S.C. § 654 directs that the “don’t ask, don’t tell” policy be implemented under regulations prescribed by the Secretary of Defense. There are three principal Department of Defense implementing regulations in force: Department of Defense Instruction 1304.26, “Qualification Standards for Enlistment, Appointment, and Induction” (July 11, 2007); Department of Defense Instruction 1332.14, “Enlisted Administrative Separations” (August 28, 2008); and Department of Defense Instruction 1332.30, “Separation of Regular and Reserve Commissioned Officers” (December 11, 2008). Each of the military services has in turn issued regulations to implement Department of Defense guidance.
Department of Defense regulations governing the separation of members under 10 U.S.C.§ 654 preserve discretion within the military chain of command to retain members undercertain circumstances. “Enlisted Administrative Separations,” for example, states at Enclosure 3, paragraph 8.d (7)(c), page 21: “Nothing in these procedures . . . precludes retention of a Service member for a limited period of time in the interests of national security as authorized by the Secretary concerned.” Military commanders have significant discretion to decide whether they should initiate investigations or separation proceedings, or whether no action should be taken at all: “They shall examine the information and decide whether an inquiry is warranted or whether no action should be taken” (“Enlisted Administrative Separations,” Enclosure 5, paragraph 3.b, p. 39; “Separation of Regular and Reserve Commissioned Officers,” Enclosure 8, paragraph 3.b, p. 23).
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