Under Article III of the U.S. Constitution, federal courts have no authority to make policy regarding the military. Nevertheless, four federal district court judges and two Courts of Appeals have ordered the Department of Defense to recruit persons identifying as transgender, as of January 1, 2018.
The Department of Justice (DoJ) should have protected the constitutional rights of President Donald Trump by filing an emergency appeal with the Supreme Court, immediately after the District of Columbia and Fourth Circuit Courts of Appeals denied petitions for stays of lower court preliminary injunctions.
The issue is not the military transgender policy alone, but who gets to decide what the policy will be. By failing to petition the Supreme Court to stay over-reaching lower court orders, the DoJ has tacitly conceded that federal judges can make military policy and establish medical standards for enlistment.
The Justice Department decided to forego a Supreme Court appeal while continuing to defend the president’s authority in the district courts, reportedly because the Defense Department has set up a “study” to review the issue.
This is a lame excuse, making as much sense as the 2016 Trump Campaign allowing the Federal Election Commission to declare Hillary Clinton the winner early on Election Night, relying on vote counts coming in later to undo that result.
The Justice Department’s reported strategy might be plausible IF the Defense Department “study” in question were truly fact-based and objective, and IF the DoD had taken steps to provide conditional enlistment contracts with transgender personnel who are recruited under the force of federal court orders. Neither expectation has been met.
Secretary of Defense James Mattis created major concerns when he invited a high-level Obama holdover official to chair his “panel of experts,” which is supposed to produce a report to support recommendations on transgender policies by February 21. That official, Anthony Kurta, was one of the architects of President Barack Obama’s controversial transgender mandates, which President Trump has the right to review before full implementation.
RAND Corporation praised Kurta for helping to write their deeply-flawed 2016 pro-transgender report, and in June 2017, Kurta instigated an LGBT Pride Month event at the Pentagon, without presidential authorization. That should have been considered a firing offense, but Kurta was nominated for a promotion instead. Secretary Mattis forgot a cardinal rule: People are Policy.
Neither Secretary Mattis nor Attorney General Jeff Sessions appear to have a strategy to fight on principle and win. In fact, the Justice Department’s failure to appeal to the SCOTUS for a stay calls into question whether President Trump will be able to implement his own policies, announced in his August 25 Memorandum, until the federal courts give him permission. Activist judges are insisting that a former Commander in Chief can dictate to his successor what military enlistment policies should be. In all national security matters, this alarming concept ignores constitutional principles of separation of powers.
Even under unrestrained court orders, Secretary Mattis could and should act to preserve presidential prerogatives: any new enlistment contracts with people who identify as transgender should be written in conditional terms. This means that every accession or reenlistment contract involving a person who has a diagnosis of gender dysphoria, or identifies as transgender, should include language referencing compliance with court orders.
Conditional enlistment agreements, which are not unusual, also should state that if the government prevails in the litigation, the contract will be voided, and any subsequent applications for accession or reenlistment will be processed in accordance with duly-promulgated accession standards.
Defense Department officials should have implemented this prudent option on their own. Instead, DoD officials have been obsessing about what type of underwear male recruits identifying as women should wear to the MEPS (military entrance processing stations).
President Trump needs to ask, why did the Justice Department essentially concede that it is right for the courts to impose enlistment standards in the first place? More importantly, how does any of this improve mission readiness and combat lethality?
The activist courts in question are attempting to impose a heightened standard of review that has never been invoked before. As things stand now, any black-robed “supreme judicial commander of the military” could usurp the authority of the Commander-in-Chief on any national defense dispute, especially lawsuits demanding “social justice.”
President Trump is the Commander in Chief. For the sake of national security and the troops he leads, the Departments of Defense and Justice need to fight for the President’s right to make sound policy for our military.
Elaine Donnelly is President of the Center for Military Readiness. CMR is celebrating its 25th anniversary as an independent public policy organization that reports on and analyzes military/social issues.