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Posted on Dec 7, 2017 Print this Article

“Supreme Judicial Commanders” Should Not Run Our Military

Justice Department Must Challenge District Court Rulings on Transgender Issue

President Donald Trump seems buoyed by signs of progress on his economic recovery agenda, but he is in danger of losing his fight to strengthen military readiness and morale.  In fact, LGBT (lesbian, gay, bisexual, transgender) activists are poised to win their biggest, most demoralizing victory yet.  (See update below.)

In recent weeks, two federal district judges exceeded their authority by ordering the Trump Administration to continue enforcing President Barack Obama’s policies regarding transgenders in the military.  They did this even though President Donald J. Trump has initiated formal procedures to review and revoke those policies.

The administration can and should defend presidential prerogatives and sound policies to strengthen our military, but the problem requires immediate attention at the administration’s highest levels.  It would be dangerous to sacrifice the President’s constitutional military powers, and to disregard Supreme Court precedents while allowing judges to make military policy.

The Center for Military Readiness has analyzed the two federal district court rulings challenging President Trump’s authority, and provided hyperlinks to relevant documents in this 8-page CMR Policy Analysis:

The CMR Policy Analysis highlights flaws and contradictions in both district court opinions, and includes suggestions on how the government should respond.

On October 30, U.S. District Judge Colleen Kollar-Kotelly threw all protocols to the wind when she issued a Memorandum Opinion and preliminary injunction (PI) favoring six transgender plaintiffs in a case titled Jane Doe 1 v. Donald J. Trump. 

Acting as “Supreme Judicial Commander of the Military,” the judge issued an Order directing President Trump and Defense Secretary James Mattis to reinstate Obama-era mandates to retain and induct new transgender recruits by January 1, 2018

On November 21, Judge Marvin Garbus of Baltimore, MD, handed down a similar Memorandum Opinion in a case titled Brock Stone vs. Donald J. Trump.  Judge Garbus signaled his intent to order the Defense Department to retain currently-serving transgendered personnel and to pay for what the court called “medically-necessary” transgender surgeries.

James Hasson, a former Army Captain and Afghanistan veteran, took issue with Judge Garbus’ claim that Trump’s decision to restore pre-Obama policies was “arbitrary and capricious.” In The Federalist, Hasson wrote, “Garbis’s decision is a naked power play, throwing the weight of the court behind the previous administration’s transgender policy – and asserting that Obama Administration officials who changed that policy were better qualified than President Trump to set military policy.”

Justice Department Must Defend Presidential Prerogatives

President Trump has the right, and the responsibility, to resist these activist court rulings and more that may be handed down in the coming months.

The Commander-in-Chief also has the right, and the responsibility, to restore sound Defense Department policies that were in place long before President Obama took office. 

The U.S. Constitution does not grant to any federal judge powers to make policy for the military.  (See Article 1, Section 8, and Article II, Section 2.)  The judges’ bizarre rulings favoring transgender plaintiffs were issued without any constitutional authorization, and they are a direct affront to the authority of the Commander-in-Chief

The Washington Examiner reported that the Trump Administration is appealing the D.C. District Court order, “but did not say whether it may seek a stay blocking the recruiting portion of the order.”  The Examiner further reported that the Pentagon is preparing to accept transgender recruits on January 1, 2018.

The apparent hesitation to ask for a stay in both cases makes no sense.  If the Department of Justice fails to obtain stays and the military complies with orders to begin enlistment of professed transgender people on New Year’s Day 2018, there will be no going back.  

Failure to act would shift control of our military to unaccountable, activist judges, and convey the devastating message that the administration does not have the political will to do what President Trump promised the voters he would do – end political correctness in the military. 

Stays of the courts’ rulings are essential to protect presidential prerogatives.  Dropping the legal ball would impose enormous costs and consequences on all branches of the armed forces and, eventually, every institution in civilian life.

The Washington, D.C. and Baltimore District Court rulings can and must be stayed, and the administration should do everything possible to address this issue in a serious, objective way.

How Should the Administration Respond?

Never in our history have the American armed forces enlisted open transgenders in the military, and federal judges should not be allowed to order them to do so.  Secretary Mattis’ hands are tied in judicial matters, since any action on his part could be construed as contempt. 

The Department of Justice, headed by Attorney General Jeff Sessions, has the responsibility to defend President Trump’s constitutional prerogatives in matters involving the armed forces.  Justice Department officials should go back to the District Court judges and seek reconsideration and stays of orders to proceed with Obama-era recruitment policies.  Given the pending review of transgender policies, this is a reasonable request to make.  

On August 25, 2017, President Trump issued a formal Memorandum providing formal guidance for the Secretaries of Defense and Homeland Security (representing the Coast Guard), directing them to:

a)     Return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016;

b)     Halt all use of Defense Department or Homeland Security resources to fund sex-reassignment surgical procedures for military personnel; and

c)     By February 21, 2018, determine how to address the status of transgender individuals currently serving in the United States military.

President Trump’s Memorandum also stated, “Until the Secretary has made that determination, no action may be taken against [transgender] individuals . . .” 

Pending results of the ongoing review process, the Pentagon might consider forgoing discharges of active-duty transgenders identified under the previous administration’s policies, if extant policies barring recruitment of new transgenders remain in place.

If the district judges refuse these reasonable requests, the Trump Administration should take the negative decisions to respective Courts of Appeals and ultimately the Supreme Court.

Would the Supreme Court Intervene?

The Department of Justice sought immediate stays when lower courts in three states tried to overrule the administration’s “extreme vetting” immigration travel ban policies, which President Trump established as matters of national security. 

The transgender issue is just as important as the travel ban issue for the same reasons: national security and separation of powers. 

The Justice Department should do in the transgender cases what the department did in the immigration travel ban cases: seek a stay to allow time to make principled arguments based on national security, not social causes. 

In a 7-2 vote on December 3, the Supreme Court decided, at least temporarily, that the president’s proclamation limiting travel from countries presenting heightened risks of terrorism should be enforced, pending further hearings on the merits of cases working their way through the courts.

The encouraging ruling affirmed that decisions affecting national security should be made by Congress and the President, not by federal judges.

The Importance of Restoring Pre-Obama Policies

The Center for Military Readiness has analyzed the full array of Obama-era directives, instructions, and mandatory training programs, which were written in consultation with named LGBT activist groups.  This is the July CMR Special Report:

Department of Defense & Military Services Should Revoke Problematic Transgender Policy Directives and Instructions, --  Executive Summary

In summary, Defense Department and military service implementation plans:

  • Defy science and common sense while enforcing Pentagon PC groupthink.  All insist that gender is “assigned” at birth and can be “re-assigned” with changes in appearance.
  • Force military commanders and medical personnel to approve or provide hormone treatments or surgical operations that do not change gender-determining human DNA or reduce psychological risks, regardless of their own convictions or concerns about medical ethics. 
  • Authorize extended time off for “real-life experience” (RLE) living in one’s “preferred gender,” and costly hormone or surgical treatments that LGBT-approved doctors prescribe as “medically necessary.” 
  • Following treatments, require military commanders to change in the transitioning person's bureaucratic "gender marker.”
  • Force military personnel to accept the presence of biologically opposite-sex persons in gender-specific private facilities. 

These consequences and associated high costs would detract from readiness, deployability, and morale.  The issue here is not civil rights; it is combat lethality and the armed forces’ readiness to defend America. 

Because the composition of our military is quintessentially a matter of national security, the Justice Department should not hesitate to seek a stay that allows a full and vigorous defense of President Trump’s right to re-establish sound policy in our military, on which national security depends. 

LGBT advocates are pursuing long-range plans to use the courts to impose their agenda on the military, regardless of the costs and consequences.  That does not mean that their egalitarian philosophy and demands should be allowed to prevail over the needs of the military and a strong national defense. 

The time to fight has come.  For more details and links to relevant lawsuit documents, see the December 2017 CMR Policy Analysis:

Federal judges do not have the power to run the military, but they will continue to do so unless the Executive Branch vigorously takes up the fight.

Update ˗ December 12, 2017:

On December 6, five weeks after Kollar-Kotelly issued her Memorandum and Order directing the Department of Defense to continue implementing Obama-era mandates, the Department of Justice filed a request for a stay of that ruling:

The Washington Post reported that Judge Kollar-Kotelly denied the request for an emergency stay, faulting the Department of Justice for not filing with “more alacrity” if the January 1, 2018, deadline were truly unmanageable.

Time is short, but the Attorney General’s office can and should continue to file appeals that will allow sufficient time for a rational discussion of the underlying readiness issues. 

The Defense Secretary James Mattis cannot intervene in legal matters, but he needs to deal with problems of his own making in the Department of Defense.

As CMR wrote here, it makes no sense to put an advocate of military LGBT causes in charge of an internal group of unknown “experts,” which is supposed to produce a report consistent with President Trump’s August 25 Memorandum providing official guidance:

The Executive Branch needs to lead this fight and win before January 1.  They can do this, but it won’t be easy.  CMR will continue to report the truth of what is happening, and why.

* * * * * *

The Center for Military Readiness is an independent public policy organization that reports on and analyzes military/social issues.  More information is available on the CMR website, www.cmrlink.orgTo support CMR with a tax-deductible contribution, click here.  You can also support CMR by visiting, liking, and sharing the CMR Facebook page.

Posted on Dec 7, 2017 Print this Article