Pretend to Defend: Executive Duty and the Demise of “Don’t Ask, Don’t Tell”

Antony Barone Kolenc, Pretend to Defend:  Executive Duty and the Demise of “Don’t Ask, Don’t Tell”

The stunning implosion of the Department of Defense’s controversial policy prohibiting homosexual conduct in the Armed Forces—colloquially known as “Don’t Ask, Don’t Tell”—has provided high politico-legal drama from 2008 to 2012.  The policy’s demise has presented an equally fascinating case study in Executive power and constitutional duty.

The Constitution requires that the President “take Care that the Laws be faithfully executed.”   This places an institutional duty on the Executive Branch to enforce federal law, at least when it is constitutional.   This duty includes an obligation to mount a legal defense for a statute challenged in the courts.   Longstanding historical practice—and a fair bit of legal scholarship—seem to permit a President to abandon that defense if he judges a law to be unconstitutional.   But there has been little discussion about the propriety of a President merely paying lip service to a statute’s defense while secretly undermining it through all stages of the litigation.  Does it violate a President’s sworn duty for him to “pretend to defend” a statute?  In the context of the demise of “Don’t Ask, Don’t Tell,”  this Article explores that question, arguing that such a practice is constitutionally indefensible and harmful public policy.

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