Ratification of the U.S. Constitution in June 1788 ushered in a radical notion: The people of the United States would be governed by the rule of law instead of the edicts of monarchs or magistrates.
For over 225 years, the U.S. Constitution has served us well, but some federal judges seem to have misplaced their copies. How else to explain recent 18th-century-type edicts from four federal district judges who are presuming to run the military without any authority under Article III of the U.S. Constitution?
Articles I and II, respectively, assign to Congress and the Executive Branch shared power to establish and implement military policies. In the waning months of his administration, President Barack Obama unilaterally decided that individuals identifying as transgender or having gender dysphoria could serve openly in the military. Defense Secretary Ashton Carter further directed that in July 2017, under the next president, new recruits could join the military if they are “stable” for 18 months after undergoing gender-altering hormone treatments or surgical procedures.
Mr. Obama had the constitutional authority to impose these unprecedented policy changes, but four federal district judges have issued orders denying the same executive power to President Donald J. Trump.
The district courts’ overreach is staggering. In Maryland, the District of Columbia, California and Washington state, district judges failed to give appropriate deference to the president’s legitimate exercise of constitutional and statutory authority. Preliminary injunctions erred on threshold issues such as plaintiffs’ standing to sue. In addition, the judges chose to impose their own policy preferences and “heightened scrutiny” instead of the “rational basis” standard of review that courts have applied in all previous similar cases.
The question now goes beyond the transgender policy itself. In matters of national security, who gets to decide what policy will be? The commander in chief cannot defend America if federal judges interfere.
Gender dysphoria is a difficult psychological condition that involves confusion about gender identity. Prior to June 2016, it was on the list of disqualifying physical or psychological conditions that affect individual readiness to deploy and perform in military environments. On Aug. 25, 2017, Mr. Trump issued a formal memorandum announcing his intent to restore pre-Obama transgender policies, unless a full Defense Department review showed a lack of negative consequences in terms of mission readiness and combat lethality.
Final decisions are due on March 23, 2018, but several active-duty and would-be military recruits who identify as transgender rushed to file lawsuits. Even though the status of currently-serving transgenders remains unchanged, district judges exceeded their authority by issuing high-handed orders prohibiting implementation of Mr. Trump’s plans to review and re-evaluate his predecessor’s change in military qualifying standards, and to establish new priorities of his own.
Ordinarily a preliminary injunction is issued to preserve the status quo until a dispute is fully litigated. The courts’ transgender orders, however, imposed new medical accession standards never present in military regulation. Furthermore, judges in these cases disregarded basic constitutional principles: The Constitution specifically empowers Congress to write laws governing the Armed Forces, and gives to the commander in chief power to promulgate regulations.
The elected branches, not the judiciary, have the responsibility to establish enlistment standards for our military. On separation-of-powers grounds alone, petitions for stays of lower court rulings, which the District of Columbia Court of Appeals and the 4th Circuit denied, should have been appealed to the U.S. Supreme Court immediately.
The Supreme Court has long recognized that judges “are not given the task of running the Army” and “[o]rderly government requires that the judiciary be scrupulous not to interfere with legitimate Army matters.” Federal judges are, as the Supreme Court said, “ill-equipped to determine the impact upon discipline that any particular [judicial] intrusion upon military authority might have.”
Regardless of the merits or substance of the policy in question, when judges refuse to respect the legitimate constitutional authority of the Executive and Legislative branches, and through preliminary injunctions order the military to replace long-established qualification standards with untested practices imposed by an outgoing administration, the rule of law has given way to the edict of unelected judges.
The Constitution does not allow judges to overrule the commander in chief on matters of national security. In the face of such an assault on the very framework of our Constitution, the president should authorize the Department of Justice to seek immediate Supreme Court intervention to stay precedent-ignoring district court injunctions.
To further protect presidential prerogatives, the Department of Defense should notify inductees who identify as transsexual that court-imposed enlistment contracts will incorporate conditional terms. If the government prevails in the underlying litigation, such contracts would be voided under new regulations that reflect paramount goals of national defense.
The administration should take these steps to restore the vibrancy of the rule of law under our constitutional framework, and to avoid misunderstandings caused by ill-considered and poorly reasoned court orders. For the sake of national security, the administration must restore the balance of powers between the elected branches and the judiciary.
This piece originally appeared in The Washington Times