Don't ask, Don't tell, don't vote on it

[Econoline]

IIRC (I could be wrong) "don't ask, don't tell" was enacted into law by Congress, so it couldn't just be overturned by executive order. Ideally, it should be repealed by Congress rather than a lower level federal court whose decision could be challenged repeatedly until it reaches the Supreme Court. Hopefully, the court decision might prod Congress into acting sooner than they might have otherwise.

[Big RR]

Congress appears unwilling to act and won't even bring the legislation to a vote; the executive branch could choose not to enforce the law if it had reason to believe it was unconsitutional (and it had such reason even before the trial court acted after the USSC case that overruled as unconstitutional a texas law banning homosexual contacts between adults)--the district court ruling just reinforces this.

As for challenging the decision, I'm not sure who would have standing to sue.

[Gob]

so what the heck is the policy now? Is it still "don't ask, don't tell? I lost my scorecard.

You're not alone, think how screwy it all seems to someone not familiar with this "process".

[oldr_n_wsr]

You're not alone, think how screwy it all seems to someone not familiar with this "process".

I would bet it's almost 100% of the people here.
Near as I can tell
Congress passed the "don't ask, don't tell" law.
Some court said it was unconstitutional
Another court overturned that ruling.
I think now it's passing on up to a higher court.
or did I miss a step

[Gob]

Ah, in the UK and Aus we have a system;

The govt gets voted in by the people.
The govt makes laws.
That's it really....

[Andrew D]

Neither Aus nor the UK was created by the voluntary coming together of separately soveriegn entities. And neither Aus nor the UK considers the separation of powers (especially as between the legislative and executive branches) anywhere near as important as does the US. Aus and the UK are parliamentary democracies, whereas the US is a republic with many democratic, but also various anti-democratic features.

[Gob]

http://en.wikipedia.org/wiki/Federation_of_Australia.

[Andrew D]

Thanks, Gob. I don't know where I got the idea that Australia had been a unitary entity before independence, but I was obviously wrong.

On the other hand, this says that "the Commonwealth was a creation of the British Imperial Parliament, through the Commonwealth of Australia Constitution Act 1900 (Imp), which applied to Australia by paramount force." That is rather different from the formation of the US by by a forcible overthrow of British rule. Maybe I should have written:

Neither Aus nor the UK was created by the voluntary coming together of separately soveriegn entities over the opposition of the colonial power.

Anyway, I gather from this that the Australian Senate has equal representation of each State (but not of the Capital Territory or the Northern Territory), which makes it rather like the US Senate. (The population differences in the US are far more extreme, but the theory is at least roughly the same.)

I gather from this that the Australian Prime Minister, although appointed by the Governor-General, is effectively chosen by the majority party in the House of Representatives. Is that right?

If so, then that is quite different from the US. In the US, not only is it possible for the President to be of the opposite party from the party holding control of both houses of Congress, it has happened on numerous occasions. (Most recently, it happened during the Clinton presidency and during the GWB pseudo-presidency, and there is some chance that it will happen during the Obama presidency.)

That's a substantial part of what I was driving at about the separation of powers: In the US, the President is elected separately from the Representatives and the Senators, and Congress cannot remove the President from office (except by impeachment in the House and conviction in the Senate, and no President has ever been removed by that method (although Nixon was forced to resign by the threat of it)).

As far as I know, in the UK, if one party has an outright majority in Parliament, then the Prime Minister is a member of that party. Is that true in Australia?

[Gob]

Thanks, Gob. I don't know where I got the idea that Australia had been a unitary entity before independence, but I was obviously wrong.

On the other hand, this says that "the Commonwealth was a creation of the British Imperial Parliament, through the Commonwealth of Australia Constitution Act 1900 (Imp), which applied to Australia by paramount force." That is rather different from the formation of the US by by a forcible overthrow of British rule. Maybe I should have written:

Neither Aus nor the UK was created by the voluntary coming together of separately soveriegn entities over the opposition of the colonial power.

I think I'm right in saying that it was voluntary.

As a result, since Australia was still legally a colony, there was continued uncertainty as to the applicability of British Imperial laws to the Commonwealth. This was resolved by the Statute of Westminster 1931, adopted by the Commonwealth via the Statute of Westminster Adoption Act 1942. The Statute of Westminster freed the Dominions, including the Commonwealth, from Imperial restrictions. Legally, this is often regarded as the moment of Australia's national independence.

In any case I do not think that has much bearing on the current situation.

I gather from this that the Australian Prime Minister, although appointed by the Governor-General, is effectively chosen by the majority party in the House of Representatives. Is that right? If so, then that is quite different from the US. In the US, not only is it possible for the President to be of the opposite party from the party holding control of both houses of Congress, it has happened on numerous occasions. (Most recently, it happened during the Clinton presidency and during the GWB pseudo-presidency, and there is some chance that it will happen during the Obama presidency.)

Yes, taht is right, and is one of the issues that causes confusion for us "foreigners". What is the advantage of having a president, if they do not have the majority in the house to carry their will?

That's a substantial part of what I was driving at about the separation of powers: In the US, the President is elected separately from the Representatives and the Senators, and Congress cannot remove the President from office (except by impeachment in the House and conviction in the Senate, and no President has ever been removed by that method (although Nixon was forced to resign by the threat of it)).

Again I have to ask, what is the advantage of this? It would seem to create more problems than it create advantages.

As far as I know, in the UK, if one party has an outright majority in Parliament, then the Prime Minister is a member of that party. Is that true in Australia?

Yep, that's the way it works. You can have, as is the case in both the UK and Aus at present, a minority government too.

[Andrew D]

I think I'm right in saying that it was voluntary.

Indeed you are. I was just observing that there is still some difference between a group of colonies' coming together to form a new nation under the auspices of the colonial power and a group of colonies' coming together to form a new nation by waging a successful war -- actually, two successful wars -- against the colonial power.

I gather from this that the Australian Prime Minister, although appointed by the Governor-General, is effectively chosen by the majority party in the House of Representatives. Is that right? If so, then that is quite different from the US. In the US, not only is it possible for the President to be of the opposite party from the party holding control of both houses of Congress, it has happened on numerous occasions. (Most recently, it happened during the Clinton presidency and during the GWB pseudo-presidency, and there is some chance that it will happen during the Obama presidency.)

Yes, taht is right, and is one of the issues that causes confusion for us "foreigners". What is the advantage of having a president, if they do not have the majority in the house to carry their will?

That's a substantial part of what I was driving at about the separation of powers: In the US, the President is elected separately from the Representatives and the Senators, and Congress cannot remove the President from office (except by impeachment in the House and conviction in the Senate, and no President has ever been removed by that method (although Nixon was forced to resign by the threat of it)).

Again I have to ask, what is the advantage of this? It would seem to create more problems than it create advantages.

Much of it has to do with our Framers' ambivalence about democracy. On one hand, they recognized that the kind of republic they were designing had to have at least some democratic elements. That's why it has been true since the beginning that the House of Representatives is elected (with certain limitations being available to the States) by the people of each State.

On the other hand, they were afraid of too much democracy. (Hey, they were doing this stuff in the 1780s not the 1890s.) So they did not put the power to choose the President in the hands of the people. Rather, they put it in the hands of Electors chosen by the State Legislatures.

(That is still true, by the way. Every State's Legislature has long since decided to put the matter to popular vote in each State, but any State Legislature could revoke that decision (within that State) and take back to itself the power to choose the Electors. And even the people of that State could not stop the Legislature from doing so. Even a contrary provision in the State's Constitution could not stop the Legislature from doing so. Riots would, of course, ensue, and no State Legislature has ever even attempted it (although some in the Florida Legislature threatened it in 2000), but the power is still out there.)

They also put the power to choose US Senators in the hands of the State Legislatures. It was not until 1913 that we changed the system to provide that US Senators must be chosen by popular election. (Although before that, the system was as it remains with respect to Presidential Electors: The State Legislatures had the power to choose the Senators, but they were free to delegate that power to the people.)

As to why we do it that way, hmmm.

For one, it's very difficult in our system to change how things work, when those things are (as the method of choosing the President is) established by the US Constitution. Effectively, an amendment to the US Constitution must first be passed by two-thirds of both Houses of Congress and then ratified by three-fourths of the State Legislatures.[1]

Second, as you know, in the Senate, States are represented wildly out of proportion to their populations. (The disparities are much greater than in Australia: California has about 68.6 times as many people as does Wyoming, but both California and Wyoming (which has a population less than that of San Francisco) get two Senators each.)

What you may not know (even most Americans don't know it) is that that disproportionate representation extends to presidential elections. Each State gets electoral votes calculated by adding the State's number of Senators (which is always two) to the State's number of Representatives. That means that at the moment, Wyoming gets three electoral votes (two Senators plus one Representative), and California gets fifty-five electoral votes (two Senators plus fifty-three Representatives). So even though California has about 68.6 times as many people as does Wyoming, California gets only about 18.3 times as many electoral votes as does Wyoming.

The small States (in terms of population) are not going to give up that advantage. And because ratification of a Constitutional amendment requires three-fourths of the States to go along with it, it's just not going to happen. Just about everyone who understands how the system works knows that it is grossly unfair, but there's nothing -- at least within the bounds of the Constitution -- that we can do about it.

ETA:

This is not just theoretical wordplay about the US Constitution. These arcane rules actually matter.

Take the election of 2000. And set aside the actions of the Gang of Five: Assume, for the sake of discussion, that GWB really did win in Florida.

Even so, Gore won the popular vote. But Shrub won the electoral vote. The upshot was that Shrub, despite losing the popular vote, ended up in the White House.

-------------------------

1. Technical point (1): If Congress so decides, an amendment passed by two-thirds of both Houses of Congress and then sent out to the States can be ratified by conventions in the States rather than by State Legislatures. That method still requires ratification by three-fourths of the States. We have used the ratification-by-convention method only once.

Technical point (2): If two-thirds of the State Legislatures make an "Application" (whatever that is) to Congress, Congress must "call a Convention for proposing Amendments"; such amendments must then be ratified by three-fourths of the States, by whichever of the aforementioned methods Congress selects. We have never used that method.

[Gob]

Excellent bit of education for me there Andrew, I'm obliged.

[Gob]

Most US troops think allowing gays to serve openly in the military would have a minimal effect on US war efforts, the Washington Post newspaper reports.

Some 70% of troops surveyed said the effects of repealing the ban would be positive, mixed or nonexistent, the paper said, citing a Pentagon report.

http://www.bbc.co.uk/news/world-us-canada-11736549

[oldr_n_wsr]

I guessed that would be the case.

[dgs49]

So as of today (11/18), it appears that Congress will not vote on this measure during the lame duck session.

But what IS the rule now? If you "acknowledge" that you are queer, you are thrown out regardless of your behavior? That's perverse. If you are "caught" engaging in homosexual behavior you are thrown out? So if a woman is giving a man a BJ is the storage closet it's cool (Article 15), but if a man is giving another man a BJ in the same storage closet, he is gone? Both of them? Also perverse.

And what about all the thousands of people who were given "undesirable" discharges over the last hundred years? Will they be converted retroactively to General or Honorable Discharges? And what about the people who were thrown out over the last 20 years for being pre-verts? Can they "demand" reinstatement?

Surely that's the next thing the GLBTC lobby will be pushing for.

[oldr_n_wsr]

I would settle for what is the rule now?
Don't ask don't tell? is that back? or has a judge said no, you can't ask but they can tell, or we can ask but you bettter not tell.

I am so confused.

[Gob]

I think it would only be fair for living people chucked out of the services for being gay to have their status changed to "honorable discharge".

What decent person could argue otherwise?