Should a Judicial Commander-in-Chief Rule on the Military?

A federal court has ruled that the Trump Administration must comply by January 1, 2018 with the Obama Administration’s 2016 policy of allowing transgender recruits into the military.

District Judge Colleen Kollar-Kotelly’s ruling denies White House attempts to prevent self-identifying transgender individuals from entering military service dating back to the summer of 2017.  At the time, President Trump tweeted, “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the US Military.” The President (POTUS) added, “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.  Thank you.”

The Trump Administration had sought to delay a June 2016 policy change by the Obama Administration that allowed transgender individuals to serve openly in the military.  The Obama policy had set a one-year deadline for the military to begin accepting new transgender recruits.  But legal battles that ensued eventually pushed the deadline to January 1, 2018.  Kollar-Kotelly ruled that she was not convinced that the deadlined need to be pushed forward again.  “With only a brief hiatus, [the Trump Administration] have had the opportunity to prepare for the accession of transgender individuals into the military for nearly one and a half years,” when the policy was initially issued by the Obama Administration in June 2016, she wrote.  “Especially in light of the record evidence showing, with specifics, that considerable work has already been done, the Court is not convinced by the vague claims in [the Trump Administration’s] declaration that a stay is needed.”

But Justice Department (DOJ) spokeswoman Lauren Ehrsam said she disagreed with the judge’s ruling.  “We disagree with the Court’s ruling and are currently evaluating the next steps,” she said.  “Plaintiffs’ lawsuit challenging military service requirements is premature for many reasons, including that the Defense Department (DOD) is actively reviewing such service requirements, as the President ordered, and because none of the Plaintiffs have established that they will be impacted by current policies on military service.”

According to a report in the Washington Post, government lawyers said “Forcing the military to accept transgender applicants and implement such a significant change in policy may ‘negatively impact military readiness.’”

A military watchdog says the DOJ should head to court – quickly – to fight a pro-transgender court order.  Elaine Donnelly, president of the Center for Military Readiness, says it’s an outrage that a federal court has ruled Obama’s policy can’t be overturned by the country’s new commander-in-chief.  “It is blatant bias,” she says.  “The Washington, D.C. district judge seems to think that she is supreme judicial commander of the military.”  Trump has announced he will end the policy and has “every right and power” to do so, Donnelly adds.

The Trump Administration should respond like it did with the POTUS’s travel restriction, which also ended up in a federal courtroom, but the DOJ went to work to defend it in court.  “An immediate stay was sought,” Donnelly recalls, “and finally the Supreme Court on December 3, just a few days ago, ruled in favor of the president 7-to-2.”

Just as the President’s travel restriction was considered a national security issue, certainly a Pentagon policy restricting who can wear a military uniform is one, too.

Rev. Dr. Kenneth L. Beale, Jr.

Chaplain (Colonel-Ret), U.S. Army

Pastor, Ft. Snelling Memorial Chapel