“Our opponents, the media, and the whole world will soon see, as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned,” presidential adviser Stephen Miller told the nation on February 13.
Rarely has a prophecy been quite this wrong. As president, Donald Trump has displayed a perverse genius: He is able to convince even reluctant judges to question his judgment and block his authority. Even in legal arenas courts are traditionally reluctant to enter, Trump’s headstrong approach has brought his initiatives to a dead halt.
The latest victim of his itchy Twitter fingers, I suspect, will be the commander-in-chief power. This is an almost sacrosanct area of authority that Trump placed in harm’s way with a July 26 Twitter thread, which proclaimed that “the United States government will not accept or allow … transgender individuals to serve in any capacity in the U.S. military.”
The tweets have not been translated into official policy yet. But there’s little question that after an order from the president, the armed service bureaucracy must, however slowly and reluctantly, bend to his will. Barring judicial interference, trans recruits will be excluded from the services; those now in uniform may face discrimination or discharge.
On Wednesday, five active members of the armed forces brought a challenge to Trump’s announced ban. Each of them has already joined the military, is serving honorably, and has come out to their commanders as trans, in reliance on the explicit Department of Defense policy permitting them to serve openly. Even before the ban becomes official, each is suffering its ill effects, in terms of career uncertainty. That should be enough to grant them standing.
They are represented by lawyers for two advocacy groups—LGBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights—and a dream team of heavyweight attorneys from two major law firms, Foley Hoag and WilmerHale.
There’s little law directly on this point, because we’ve never had a president who issues policies in 140 characters—and not since Andrew Johnson have we had one so willing to use the office so impulsively as a club against disfavored people and groups. But I think they have a pretty good chance of blocking the ban. Defense Department lawyer Michel Paradis, writing as a private citizen in Lawfare, agrees.
Trump must have felt quite confident in issuing his ukase. Under the Constitution, the president is “commander in chief of the army and navy of the United States.” That power is more sweeping than almost any other in the document. The commander-in-chief role has, over the years, inspired near-religious deference not only from military officers but also from members of Congress and federal judges. For example, the Supreme Court in 1996 approved a military-justice statute that gave the president a remarkable role in capital cases. When it came to defendants in the military, Congress authorized the president by regulation to decide what factors should determine whether they should be executed. That kind of criminal law is usually made by legislatures; this kind of delegation would never be tolerated in civilian courts. Justice John Paul Stevens wrote that in matters of military justice “it would be contrary to the respect owed the president as commander in chief to hold that he may not be given wide discretion and authority”—even in the area of life and death.
In part because of this tradition of deference, presidents regard the military as their property. “Son, they’re all my helicopters,” Lyndon Johnson once told an airman; Trump said he had announced the transgender ban “after consultation with my generals and military experts.” But the Constitution is very clear: Congress, not the president, has the exclusive power “to declare war,” “to raise and support armies,” “to provide and maintain a navy,” and “to make rules for the government and regulation of the land and naval forces.”
They’re all Congress’ helicopters. The president just gets to borrow them.
Over six decades, courts have held that congressional “government and regulation” of the military must follow constitutional standards. Judges aren’t about to second-guess genuine command decisions, such as deployment orders. Courts can and sometimes do, however, protect the individual rights of men and women in the ranks. Those in the military have fewer rights than civilians, but they have rights nonetheless.
At first glance, it would seem the military can discriminate more or less at will. Before its repeal in 2010, the “don’t ask, don’t tell” policy, barring lesbian and gay personnel from serving openly, was almost uniformly affirmed by the courts. Similarly, in 1981, the Supreme Court upheld a national policy requiring men to register for the draft while barring women. That case, Rostker v. Goldberg, relied on an act of Congress, as “don’t ask, don’t tell” cases did. “Perhaps in no other area has the Court accorded Congress greater deference,” Justice William Rehnquist wrote.
I added the emphasis on “Congress” in the quote above, because that’s where Trump’s new ban is vulnerable. It never had anything to do with Congress. Nobody seems to have been involved but Donald J. Trump.
The challengers’ complaint draws a careful contrast: Trump’s overnight, unexpected policy change is radically different from the two-year process that ended in 2016 with an order opening the military to transgender personnel. In the two years before that, there was a direction by the secretary of defense to each branch to reassess the need for a ban; a comprehensive overall analysis by “the leadership of the armed services, the Joint Chiefs of Staff, the service secretaries, and personnel, training, readiness, and medical specialists from across the Department of Defense”; a study by the RAND Corporation on military effectiveness and health costs; a final secretarial directive; the issuance of a 71-page handbook on transgender service; and another set of guidance memos on how each service should integrate trans personnel into the ranks.
Trump, the challengers suggest, reversed this carefully made decision on a whim. “Upon information and belief,” the complaint says, “the president did not consult either the Joint Chiefs of Staff or the Department of Defense before making his announcement.” Indeed, as clearly as military etiquette allowed, Secretary of Defense James Mattis, a coalition of former military officers, and the commandant of the Coast Guard made clear that they did not subscribe to—and perhaps had not even known about—the change in policy. “Members of Congress belonging to both political parties,” the challengers’ complaint notes, have also registered their opposition.
In addition, the official studies cited in the complaint had already uniformly found that Trump’s reasons for banning trans troops—potential distraction from “decisive and overwhelming victory” and “tremendous medical costs”—are not supported by any evidence at all.
The suit doesn’t claim that a commander in chief is required to go through any specific process before issuing an order. But it implicitly suggests that Trump’s action is based not on military principles at all, but on dislike for, and desire to publicly humiliate, transgender people. And every second-year law student learns that that reason—“I don’t like your kind”—is not a “rational basis” for anything. In 1973, the Supreme Court struck down a food-stamp regulation it concluded was aimed at denying benefits to “hippie communes.” In that case, U.S. Department of Agriculture v. Moreno, Justice William Brennan wrote that “a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
Had Trump been serious about a transgender ban, he could have begun a process to reverse the policy of allowing trans people to serve. That might not have produced good evidence to support the turnaround—but it would have shown at least some concern for executive action as an exercise of reason rather than spleen.
It would also have shown some concern for the power and stature of the office he holds. Instead, Trump has yet again demeaned and damaged that office.