Making laws Obama's way: 'Lawless process'

Violating the rules of the U.S. House.
Inappropriately handing out the legislative powers of Congress.
Upending the legislative process
Usurping the powers reserved to the states in the U.S. Constitution.

These are not accusations or charges stemming from actions by Congress and the White House, instead, these are accomplishments of Congress and the White House in members' purpose-driven plan to open the U.S. military to openly practicing homosexuals, lesbians and those with other alternative sexual lifestyles.

That's according to constitutional expert Herbert W. Titus, of counsel to the Vienna, Va., law firm of William J. Olson, P.C., and teacher of constitutional law for almost three decades at a number of American Bar Association-approved universities.

But perhaps there shouldn't be any surprise, according to critics, as Barack Obama has advocated that the nation should move beyond the "constraints" of the founding document.

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That happened in 2001 when Obama told Chicago radio station WBEZ-FM that the U.S. has suffered from a fundamentally flawed Constitution.

Titus' analysis, published in the William & Mary School of Law review journal, is titled "The Don't Ask, Don't Tell Repeal Act: Breaching the Constitutuional Ramparts."

He told WND that the results of such actions recently were made clear when it was revealed that as part of the U.S. Senate's efforts to make its policy align with the military code, senators approved a repeal of the ban on bestiality.

The vote generated a furor nationwide when Les Kinsolving, WND's correspondent at the White House, asked of Obama press secretary Jay Carney if, in light of the 93-to-7 U.S. Senate vote, whether the commander in chief approved or disapproved of bestiality in the armed forces.

Carney said, "I don't have any comment on – I don't have any comment on that. Let me go to another question."

Kinsolving tried to ask whether the president thought the law would be endorsed by animal support groups, and Carney said, "Let's get to something more serious."

In the wake of the controversy, U.S. Rep. Michele Bachmann, R-Minn., a contender for the GOP nomination for president, called the idea "abhorrent."

In a commentary, Kinsolving later wrote, "On the air of my talk-radio program on WCBM Baltimore, which has Internet callers from across the nation – and where I often agree to disagree agreeably with callers – almost all of the callers were grateful that I asked that question of Press Secretary Carney."

Titus said the fracas was just an indication of what will develop under the change that knocks down more than two centuries of precedent in the military.

"It's an example of what you might call the dissonance between Congress and the bureaucracy," Titus told WND.

But he wrote in his law review article that the real issue is the process that was used to destroy the standard for military behavior regarding intimate and personal relationships.

"At stake in the repeal of DADT is not just whether a seismic change in military policy is sustainable without damage to military readiness and unit cohesion," he wrote.

"The lawless process by which the repeal is being accomplished shakes the American constitutional republic at its very foundations. The central purpose of separation of powers, checks and balances, and federalism in the nation's constitution is to prevent the kind of headlong plunge taken by Congress and the president to repeal DADT in response to emotionally charged cries for equality," he wrote.

"By the failure of both the legislative and executive branches to abide by the written covenant with the American people to exercise only those powers enumerated in the Constitution, and to exercise those powers only in accordance with the processes specified therein, the leaders of both major political parties have demonstrated that with the repeal fo DADT they have violated their oaths of office to support the Constitution of the United States," he said.

Specifically, he said:

The DADT Repeal Act violated House rules

Titus notes that H.R. 2965, the eventual "repeal" vehicle for Congress, originally was titled "Enhancing Small Business Research and Innovation Act," and the House rules require that "no motion or proposition on a subject different from that under consideration shall be admitted under color of amendment."

"It is self-evidence that the subject of DADT – open homosexual behavior in the military – is not 'germane' to small business technology and innovation," Titus wrote. "The purpose of the DADT Repeal Act – permitting open homosexual behavior – is clearly unrelated to H.R. 2965's original purpose of providing federal assistance to small business technology and innovation."

He wrote that in the past, the House even has determined that a bill to eliminate wage discrimination based on sex "could not be amended to ban wage discrimination on the basis of race."

He also noted the DADT Repeal Act failed the jurisdictional test – whether the proposed amendment is within the jurisdiction of the House committee reporting the bill, which came out of the House Small Business and Science and Technology committees.

"The American people are constitutionally entitled that any bill enacted into law be handled in accordance with the established rules of proceeding adopted by Congress," Titus wrote. Instead, "the lame duck Democratic leadership … used its supermajority to bypass [the] process."

The DADT Repeal divested Congress of legislative power

The DADT policy was codified following official findings from Congress.

"The DADT Act directed the DoD to carry out a congressional policy in a manner prescribed by Congress in the exercise of the legislative powers vested in it by Article I, Section 8, Clause 14 [of the Constitution]," Titus said.

In the repeal, however, "Congress divested itself of its constitutionally entrusted legislative powers. First the so-called DADT Repeal Act repealed nothing. Rather, [it states] as follows: 'No Immediate Effect on Current Policy – Section 654 of title 10, United States Code, shall remain in effect.' Instead, Congress left the repeal decision to the Secretary of Defense."

In short, he wrote, "Congress delegated the legislative power vested in it … to the unelected bureaucrats of the DoD. Even the president has only a nominal role – that of certifying to select congressional committees that the DoD exercised the discretionary powers delegated by the repeal act."

The result is that the act not only delegates legislative authority, it "transfers the executive power vested solely in the president …. into the bowels of the Pentagon."

The DADT Repeal Act upends the legislative process

"Whatever policies and regulations are ultimately selected by defense officials to replace DADT, they will not be the product of a constitutionally prescribed process," Titus wrote. "Article 1, Section 7 of the Constitution states that a bill becomes a law when it passes both houses of Congress and is signed by the president, or, if unsigned, is not returned to the house of origin by the president within 10 days. Under the DADT Repeal Act, the rules and regulations governing homosexual behavior in the military will become law without having to comply with either the bicameral or presentment principles."

He continued, "According to the DADT Repeal Act, it is the Secretary of Defense, an unelected official, who will decide what policy will replace DADT. … And what role does Congress play? No role whatsoever, not even a legislative veto."

The DADT Repeal Act threatens powers reserved to the states

Titus explained that the National Guard, unless actually called into action, is made up of individual militias of the states – not a creation of Congress. He noted that the U.S. Supreme Court recently affirmed that in District of Columbia v. Heller, when the justices wrote that unlike armies and navies, "which Congress is given the power to create … the militia is assumed by Article 1 already to be in existence."

Congress is given the power, the Constitution says, to "provide for calling forth the militia" and the power not to create, but to "organize" it, Titus argued.

"Therefore, the states have traditionally set enlistment standards for their National Guard units, the most prominent of which is that one must be a citizen of the state to enlist in that state's National Guard. There is no good reason why the states may not also determine who, among those citizens, is 'able-bodied,' that is, has a sound body, not incapacitated for service in the military," Titus said. "It follows that, as a matter of state law … a statement may determine that an active, open, practicing homosexual is ineligible to serve."

He said the issue is not whether someone exhibiting homosexual behavior would make a good soldier, the issue "is the impact of his behavior upon 'unit cohesian' of the whole."

The DADT Repeal Act plays into hands of the courts

Titus said tucked into the act is an acknowledgment that the DoD will review ongoing litigation.

That provides, he said, an open door for every type of homosexual influence to demand protection by the courts.

"Because the Supreme Court has recognized … that homosexuals have a fundamental right to 'an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct' …. any military rules governing their expressive activity, including sexual conduct, will be perceived as an intrusion 'upon personal and private lives."

Activist judges undoubtedly will use the circumstances, he warned.

"There is every reason to believe that many judges will substitute their views for those of the military in the formulation and implementation of the rules that will govern homosexuals and their sexual activity in the armed forces," he said.

It was in an interview with Chicago's public station WBEZ-FM in 2001 that Obama charged that the Constitution is flawed.

He was discussing "redistributive change" and noted that the U.S. Supreme Court under Chief Justice Earl Warren failed in its rulings on civil rights issues in the 1960s because it failed to "break free from the essential constraints" in the U.S. Constitution.

In the 2001 interview, Obama said:

If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be OK

But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can't do to you. Says what the federal government can't do to you, but doesn't say what the federal government or state government must do on your behalf.

And that hasn't shifted and one of the, I think, tragedies of the civil rights movement was because the civil rights movement became so court-focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that.

The interview was available on YouTube until this week when its content was cited, and the YouTube account abruptly was terminated.

Titus is not the first to find some outlandish maneuvers in Obama's campaign for homosexuality in the military.

Elaine Donnelly of the Center for Military Readiness cited a study by the government itself that concluded the "fix" was in for the promotion of homosexuality in the military, regardless of whether or not the policy would cause damage.

That 33-page report, uncovered by the Center for Military Readiness, is marked "For Official Use Only" and describes an investigation "of improper disclosure of For Official Use Only information from the Comprehensive Review Working Group draft report."

It reveals that the inspector general of the Department of Defense concluded that the fix – maybe even handed down by the White House – was in before the military ever started asking soldiers and sailors about how opening the ranks to homosexuals would affect the nation's defense.

It was that report that famously was quoted as affirming "70 percent" of the nation's military members believe the repeal of the long-standing "Don't Ask, Don't Tell" practice of allowing homosexuals to serve as long as they kept their sexual lifestyle choices to themselves would have either "a neutral or positive impact on unit cohesion, readiness, effectiveness and morale."

However, the inspector general documents how the co-chairman of the commission working on the assessment, Jeh Johnson, "read portions of 'an early draft' of the executive summary … to a former news anchor, a close personal friend visiting Mr. Johnson's home" three days before service members even were given the survey.

A source provided the IG report, which aimed to determine who prematurely released information about the study, to Donnelly of the Center for Military Readiness. Donnelly analyzed the documentation and warned that it suggests Congress was deceived, probably deliberately, by those with a pro-repeal agenda.

"Contrary to most news accounts, the 'Comprehensive Review Working Group' process was not a 'study,'" she told WND. "Its purpose was to circumvent and neutralize military opposition to repeal of the law."

She said, "The vaunted DoD 'Survey of the Troop's was pre-scripted even before the survey began."