President Barack Obama is taking heat from liberal and gay rights groups for his administration's successful push to reinstate "Don't Ask, Don't Tell," which Obama has said he wants to repeal, on the same day that the Pentagon began accepting openly gay servicemembers. A district court judge struck down the Clinton-era policy on Oct. 12, but the White House and Justice Department sought a temporary stay on that ruling, which they got on Wednesday. Obama said the policy "will end on my watch" but the change "has to be done in a way that is orderly," which is to say, through Congress. That might be a defeat for gay rights, but it's a remarkable victory for two issues that are arguably just as important and just as in need of resuscitation: the rule of law and the separation of powers.
The White House's behavior signals an important shift from some of the most notorious practices of the Bush administration. For much of his eight years in office, President George W. Bush's White House sought to internalize legal authority and circumvent the legislative and judicial branches, especially regarding matters of national security. The examples are as numerous as they are disturbing.
When Congress would not grant the White House desired legal authorities, such as those relating to torture, the administration simply gave those powers to itself by asking the Justice Department's Office of Legal Counsel to draft a secret finding. If Congress passed a law that Bush didn't like, such as the 2005 Detainee Treatment Act, rather than go through the trouble of pushing for a court challenge or new legislation, Bush would issue a "signing statement" commanding the government to ignore the new law. The White House designed military commissions to replace civilian trials of terrorist suspects in part because the military is a part of the executive branch, unlike the court system, which is beyond its reach.