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Posted on Dec 31, 2017 Print this Article

Failure to File Supreme Court Appeal Invites Federal Judges to Run the Military

Departments of Defense and Justice Surrendering Presidential Prerogatives on Military Transgender Policies

Under the U.S. Constitution, federal judges have no power to run the military.  Nevertheless, four U.S. District judges have ordered the Department of Defense (DoD) to ignore official instructions from President Donald J. Trump, and to fully implement unprecedented mandates to recruit transgenders into the military by January 1, 2018.

Because the makeup of our military is a matter of national security, the Department of Justice (DOJ) requested reconsideration and stays of lower court rulings in the Courts of Appeal for the District of Columbia and the Fourth Circuit.  Both were summarily denied.

Then came the astonishing news that the Justice Department, headed by Attorney General Jeff Sessions, decided not to file an immediate emergency appeal to the U.S. Supreme Court of the United States (SCOTUS).

According to Reuters, a Justice Department official who requested anonymity said that the U.S. Department of Defense must start accepting recruits who identify as transgender – something that has never been done in history – on New Year’s Day, 2018.

The anonymous DoJ official told Reuters that because the Defense Department has set up a “study” to review the issue and make recommendations, “Rather than litigate this interim appeal before that occurs, the administration has decided to wait for the DoD’s study and continue to defend the president’s lawful authority in district court in the meantime.” 

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 of the presidential race early on Election Night, relying on vote counts done later to undo that result.

No one would be so foolish as to do that, but the Justice Department seems to be abdicating presidential prerogatives in a vain hope that the DoD will recommend something other than the agenda that Obama Administration holdovers in the Pentagon have been implementing for several years.

The issue is not the substance of the policy, but who gets to decide what the policy will be.  By failing to petition the Supreme Court to stay the lower court orders, the DoJ has tacitly conceded that federal judges can make military policy and establish medical standards for enlistments.

There’s a difference between a legal strategy and political cover. The DoJ’s reported strategy might be plausible IF the DoD “study” in question were truly fact-based and objective, and IF the DoD had taken steps to condition any new accession or re-enlistment contracts with transgender personnel on the outcome of the litigation.

Neither precaution has been taken by leaders at the Departments of Justice or Defense.  For reasons explained below, the Department of Justice’s reported legal strategy may be resting on misplaced trust in the Secretary of Defense, James Mattis.

How to Let Down a President

President Trump is entitled to ask Secretary Mattis why he did not make provisions for conditional enlistment contracts while ordering officials to prepare for new transgender inductions by January 1.  He should also ask Mattis why he put in charge of his “Panel of Experts” a pro-LGBT official who has defied President Trump before.

On September 14, Secretary Mattis issued official Guidance in response to President Trump’s August 25 Memorandum calling for three things: A return to policies regarding transgenders that had been in effect since the beginning of the nation, an end to DoD subsidies for surgeries attempting to change gender, and a report on options regarding persons identifying as transgenders who are currently serving under policies the Obama Administration announced in June 2016.  In the meantime, no one currently in uniform would suffer adverse effects.

Secretary Mattis established a closed-door panel to come up with recommendations by February 21.  That sounded like a good plan, but as CMR explained in this article, Mattis made a huge mistake when he allowed a high-level Obama holdover, Anthony Kurta, to chair the panel in question.  General Mattis seems to have forgotten a cardinal rule in the political world: People Are Policy.

  • Mr. Kurta has been in league with LGBT (lesbian, gay, bisexual, transgender) activists for many years, during and and after the Obama Administration.  In fact, Kurta was one of the architects of transgender policies that President Trump wants to study before they take effect.
  • In 2016, the RAND Corporation praised Kurta for helping to write a deeply-flawed report promoting transgenders in the military, which was produced in consultation with LGBT activist groups such as the Palm Center and the Human Rights Campaign.  The 2016 RAND Report has been cited as gospel by most major media, even though close analysis reveals the report to be a poorly-researched polemic that the Defense Department paid for in order to promote President Obama’s transgender agenda.
  • In June 2017, Kurta misused his holdover position by instigating an LGBT Pride Month event at the Pentagon, without presidential authorization.  Instead of viewing that as a firing offense, Secretary Mattis promoted Kurta, nominating him to be the Principal Deputy to the incoming Under Secretary of Defense for Personnel & Readiness.
  • In written confirmation hearing responses to the Senate Armed Services Committee, Kurta wrote, “My role in Performing the Duties of the USD(P&R) has been to chair the Transgender Panel of Experts and provide status updates to the Vice Chairman of the Joint /chiefs and Deputy Secretary of Defense on a periodic basis.”  (pp. 20-21)

If we don’t lose a war before February 21, LGBT “expert” Kurta or someone else signing his work likely will claim unmitigated success for Obama’s policies, including court-ordered new transgender accessions.  Those claims, however, will focus only on the satisfaction of persons who are being allowed to serve despite a psychological condition that – until the Obama Administration came along ˗˗ used to be among many physical or psychological problems that disqualified individuals for military service.

As things stand now, even if the panel recommends a new policy, the President will not be able to implement it until the Federal Courts give him permission.  Biased rulings like those already handed down will be skewed by the same illogic that activist district courts have used in denying requests for stays at the Appeals Court level.

The district courts’ orders do not just preserve the status quo as preliminary injunctions are supposed to do.  Rather, these judges ordered the Department of Defense to implement a policy decision made by a former President in spite of the current Commander-in-Chief’s decision to retain the actual status quo until he and his staff had the opportunity to study the issue.

All four of the district court decisions reveal that the judges who wrote them don’t even concede that President Trump should be given the chance to consider a new policy.  That doesn’t mean that black-robed “judicial commanders” have the constitutional right to decide.  The DoD and DoJ can and should come up with better strategies to establish sound policies and to vigorously defend them in court.

Misguided Legal Strategy

The legal strategy that Reuters reported does not explain why the DoJ filed for a stay at the Appeals Court level, but failed to take the issue to the next level, the Supreme Court.  In the initial stages of litigation, DoJ attorneys argued that transgender Plaintiffs cannot claim permanent harm now because the DoD study is in progress.

On appeal to the Circuit Courts, they argued, among other things, that there would not be enough time to train thousands of military personnel to accommodate new recruits identifying as transgender.  The briefs were well-crafted, but it is difficult to understand why the DoJ’s arguments would have precluded an appeal to the Supreme Court as well as the Courts of Appeals.

When federal district judges tried to derail President Trump’s immigration travel ban, the Department of Justice did not hesitate to file appeals leading to the Supreme Court.  Nor did DoJ lawyers call for a “study” before going to Court to defend the President’s constitutional rights to make policies affecting national security.  Ultimately, SCOTUS ruled in the president’s favor, 7-2, at least temporarily.

Regardless of the national defense issue at stake, it is the duty of the Department of Justice to protect presidential prerogatives in federal court.  The issue in question here is important, but less so than a fundamental separation-of-powers question: Who gets to decide?

What Next?

Chief Justice John Roberts is the supervising Justice for both the District of Columbia Circuit and the Fourth Circuit, based in Richmond, VA.  If the DoJ had petitioned for a stay of Preliminary Injunctions in the cases arising out of Washington, D.C. and Maryland, Chief Justice Roberts could have, conceivably, issued the stay on his own without sending it before the entire court.

Justice Roberts also could have stayed the injunctions temporarily and referred the matter to the full court for an expedited briefing.  It would be reasonable to expect that Justice Roberts would be inclined to grant the stay on basic separation of powers issues, but there is no way to know for sure.

We do know that failure to petition for a stay has abdicated presidential authority, and allowed judges to run the military.  Absent intervention, nothing stands in the way of future activist judges issuing orders on any national defense issue, especially lawsuits demanding liberal interpretations of “social justice.”

Suggestions for Action

To deliver on his promise to “clean the swamp” and end political correctness in the military.  there are some things that President Trump still can do.

To restore focus on his own primary goals, mission readiness and combat lethality, President Trump should withdraw the Kurta nomination for promotion to the office of Principal Deputy to the Under Secretary for Personnel & Readiness.

Secondly, Secretary Mattis should remove Kurta from his transgender “Panel of Experts,” replacing him with someone who will assemble an objective, fact-based report for the President’s consideration.

Finally, President Trump should direct Justice and Defense Department officials to do everything possible to protect his presidential prerogatives, even under the force of court orders.  If the Administration is really concerned that the federal judiciary has overstepped its powers by ordering recruitment of transgenders, it is not a great leap to place conditions in the enlistment contracts.

Let’s suppose that President Trump decides in March to implement his intent to simply restore pre-Obama policies in the interests of mission readiness and combat lethality.  Without conditions in the enlistment contracts of those admitted under court orders, it would be perceived as “unfair” to discharge transgender individuals later under new policies that President Trump has every right to make.

Instead of considering this prudent option, DoD officials busied themselves doing other things. Consider, for example, the transgender implementation guidelines that specify which type of underwear persons undergoing “gender transition” should wear at military entrance processing stations (MEPS):

The type of underwear to be worn, male or female, depends on the state of the potential recruits’ stage of attempted “transition” to their “preferred gender.”  Why the fastidious rules about cross-dressing underwear?

The MEPS Commander’s ridiculous 7-page Policy Memorandum focuses on the sensibilities of personnel working at recruiting centers and the MEPS.  After that, however, still-extant Obama rules say that military people will just have to get used to being in close quarters with persons of the opposite biological sex.  Never mind that human DNA determines gender in every cell of the human body.

Defense Department officials know how to put conditions into enlistment contracts; they do it all the time for occupational, training, duty station reasons, etc.  The DoD has been ordered to “access” new transgenders.  At a minimum, enlistment contracts should include conditions that allow for future changes in policy, after litigation is complete.

At this early stage in litigation, the District Courts have not even considered the full costs and consequences of forcing thousands of military commanders and health care professionals to approve or participate in procedures that many consider delusional or unethical.

Groupthink has degraded into collective madness, and the courts demand that all military officials and personnel embrace the delusion, no matter what the cost or damage done to unfortunate individuals.

President Trump can still defend his interests and those of the military, but some appointees have made his job much harder.  The administration cannot tolerate more mistakes that help the LGBT faction and activist judges to control Pentagon policies, without a fight.  With so much at stake, the Executive Branch needs to lead this fight and win.

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More Background Information:

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Concerned citizens wishing to comment on this issue can go to or call the White House Comment Line: 202/456-1111.

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 31, 2017 Print this Article