The future of the infamous DADT policy used to evict gays and lesbians from the US military services is a hot topic of discussion right now. The ultimate solution is an act of congress repealing the policy. That course appears to have broad public support. However, many people are of the opinion that President Obama has the ability in his statutorily provided stop loss authority to stop such involuntary discharges while legislation is pending. The discussions about this issue on Daily Kos reflect a lack of information and some confusion. This diary is an attempt to provide some background information.
I am not an attorney. There are several attorneys here on DKos with whom I have had the pleasure of interacting on this topic and I am hopeful that some of them will see this diary and share their views.
Historically stop loss has been about keeping people in the military past their scheduled discharge date because the military was in urgent need of the people power and skills. The people who are so retained are usually not particularly happy about it. If they wanted to remain in the military they would have reenlisted. With the DADT discharges we have the opposite situation of service members who wish to remain and are being involuntarily discharged because they have fallen afoul of the don't ask don't tell policy.
This is the legal authority under which the president can retain people in the military.
US Code
§ 12305. Authority of President to suspend certain laws relating to promotion, retirement, and separation
(a) 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.
(b) A suspension made under the authority of subsection (a) shall terminate
(1) upon release from active duty of members of the reserve component ordered to active duty under the authority of section 12301, 12302, or 12304 of this title, as the case may be, or
(2) at such time as the President determines the circumstances which required the action of ordering members of the reserve component to active duty no longer exist, whichever is earlier.
(c) Upon the termination of a suspension made under the authority of subsection (a) of a provision of law otherwise requiring the separation or retirement of officers on active duty because of age, length of service or length of service in grade, or failure of selection for promotion, the Secretary concerned shall extend by up to 90 days the otherwise required separation or retirement date of any officer covered by the suspended provision whose separation or retirement date, but for the suspension, would have been before the date of the termination of the suspension or within 90 days after the date of such termination.
This is a statute adopted by congress after the Vietnam war. Using such authority would not be a matter of issuing an administrative ruling in defiance of the law. It is using authority granted under the law. It is possible that a court might find use of this law to suspend gay discharges in conflict with the DADT law
US Code 10 G 654
However that is by no means a foregone conclusion.
People with better knowledge of the law than I have read the authority in the stop loss law as giving Obama all the power that he needs to call a halt to discharges under DADT. Since it is his stated position that DADT is a bad law and should be repealed, taking this step to prevent further damage to individuals would seem like the reasonable and compassionate approach. The Obama administration is doing that with the immigrant widows law while it works to get new legislation passed. Clearly they are willing to refrain from enforcing laws that they believe to be unjust.
Obviously gays and lesbians in the military are more politically controversial than immigrant widows. Obama has political reasons for not wanting to stick his neck out on this issue. However, the point that I wish to make here is that it appears to be an option that he legally has the power to do. He is choosing not to use it. I find that an unfortunate choice.