The left and media are presenting a decision by elements of the Trump administration to not pursue an immediate stay in court as a win by LGBTQ forces seeking to force President Donald Trump, America’s Commander-in-Chief, to accept transgender recruits into the U.S. military.
But it might not be as big a win as they would have hoped for, as conservative forces rally behind the president with a variety of plans to crush the short-term leftist victory—though it does remain to be seen if the administration’s various departments responsible, primarily Justice and Defense, will follow through on efforts to get Trump another win.
As of Jan. 2, thanks to lower court rulings blocking implementation of President Trump’s directive to the Department of Defense, transgender individuals can legally enlist in the U.S. military. That is in direct contravention of an order the Commander-in-Chief handed down to Defense Secretary James Mattis back in August, one that has been challenged in court and blocked by a district judge by a preliminary injunction while the case is ongoing. On appeal, two U.S. courts of appeals—the Fourth Circuit and the D.C. Circuit—upheld two lower courts’ preliminary injunctions, blocking Trump’s transgender ban on military enlistment.
Perhaps most importantly, it sets up a potential constitutional crisis, George Rasley of Richard Viguerie’s ConservativeHQ told Breitbart News.
“The judge’s order directing President Trump to enlist transgenders into the military is a constitutional crisis of the first order,” Rasley said in an email. “From usurping the administration’s immigration powers to the powers of the commander in chief, federal judges have attempted coup after coup against Donald Trump. If the President and his lawyers do not fight back more aggressively there will be no presidential power that these left wing judges will not attempt the seize for themselves.”
Shocking many conservatives and Trump supporters, the Department of Justice—and Department of Defense—did not seek a stay from the U.S. Supreme Court, which will likely eventually hear the case, and perhaps grant a stay nullifying the lower court’s block while the legal process plays itself out. That decision appears to be a questionable one, and many conservatives and Trump supporters are baffled at why the Trump administration’s DOJ would not step forward and press this issue right this second.
Elaine Donnelly of the Center for Military Readiness said in a lengthy statement issued Tuesday:
Under Article III of the U.S. Constitution, the federal courts have no authority to make policy regarding the military. The Department of Justice (DoJ) should have protected the constitutional rights of President Donald J. Trump by filing an emergency appeal with the Supreme Court immediately after the District of Columbia and Fourth Circuit Courts of Appeals denied requests for stays of lower court preliminary injunctions. The issue is not the military transgender policy alone, 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. According to Reuters, a Justice Department official who requested anonymity noted that the Defense Department has set up a ‘study’ to review the issue. 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 coming in later to undo that result. The DoJ’s reported strategy might be plausible IF the Defense Department ‘study’ in question were truly fact-based and objective, and IF the DoD had taken steps to provide conditional enlistment contracts with transgender personnel who are recruited under the force of federal court orders. Neither expectation has been met.
Chris Hull, an executive vice president of the Center for Security Policy who previously served as chief of staff to Rep. Steve King (R-IA), is similarly upset.
“These individuals suffer from a serious mental illness with suicide rates of up to 40%, which is eight times as high as the rate among schizophrenics, who are barred from military service,” Hull told Breitbart News. “We already have a problem with suicide in the military without actively recruiting those among the most likely to die at their own hands.”
But, per the Department of Justice, they are following the instructions of the Department of Defense and the White House. The Pentagon is, per the DOJ, working on a new study on the matter—and things are on hold until then and until the next stages of litigation.
“The Department of Defense has announced that it will be releasing an independent study of these issues in the coming weeks,” DOJ spokeswoman Sarah Isgur Flores told Breitbart News. “So rather than litigate this interim appeal before that occurs, the administration has decided to wait for DOD’s study and will continue to defend the President’s and Secretary of Defense’s lawful authority in district court in the meantime.”
In other words: DOJ lawyers are just like the lawyers for their clients, trying to formulate a legal strategy that they think will win their clients’ case. But, by no means has the DOJ abandoned the case—and it is still fighting to defend the legality of the president’s directive.
Sources close to the matter and with direct knowledge tell Breitbart News that the issue came up at a National Security Council principals meeting on Tuesday—and the senior-most officials in the Trump administration are seeking a pathway forward to dealing with this matter. Sources close to the process have told Breitbart News that there may be a better option on the table for the president if he wants to succeed here, and it involves a strategy laid out for him by several top conservative leaders.
A letter sent to President Trump signed by various military and law enforcement conservative leaders, including President Ronald Reagan’s Attorney General Ed Meese, lays out a new pathway forward for President Trump to block transgender individuals from serving in the military.
Meese and the other conservative leaders wrote to President Trump before the New Year:
As you know, several district judges have recently ordered the Department of Defense to begin enlisting individuals who identify as transgender into the military on January 2, 2018. These orders are not only at odds with your directive of August 25, 2017 to the Secretary of Defense and, with respect to the Coast Guard, to the Secretary of Homeland Security precluding such a change in policy. It is also a judicial intrusion upon your exclusive authority as Commander-in-Chief pursuant to Article II of the Constitution and a dangerous affront to your responsibility to determine the make-up and disposition of the nation’s armed forces. Unfortunately, this is not the only example of unacceptable infringements on your presidential powers. Courts have been eager to strike down your immigration-related executive orders with politically-motivated rulings. Moreover, as Bloomberg reported yesterday in a news report headlined, ‘Washington Bureaucrats Are Quietly Working to Undermine Trump’s Agenda,’ others in the government have been emboldened to subvert your administration and policies. We believe strongly that your decision to prevent additional enlistments of individuals who identify as transgender in the U.S. armed forces is fully justified in light of the grave harm such a policy change would portend for the readiness, morale, unit cohesion and funding challenges facing our military. In addition, it would be a most dangerous precedent to have the judiciary interjecting itself into your exclusive, constitutional command authority and responsibility to create a right to serve where there is none – let alone extending that right to people whose medical condition and requirements are, as a practical matter, incompatible with military service and a burden on an already stressed military budget.
They continued in the letter to President Trump by noting that there is a different pathway forward for him that would take the power away from activist judges attempting to nullify his presidency, and allow him to move forward with implementation of his ban on transgender individuals enlisting in the U.S. military. The conservative leaders wrote to President Trump:
To allow this court order to stand, moreover, would be to invite the judiciary to trespass further on your executive authority and the chain of command. Predictably, it would also empower government employees to ignore presidential direction – with profound and adverse implications for the Republic. In the interest of avoiding such intolerable consequences and preventing avoidable harm from being inflicted on the armed forces with the initiation of enlistments of individuals who identify as transgender, we recommend that you immediately issue a new directive to the Secretaries of Defense and Homeland Security along the lines of the attached. It simply preserves your authority and responsibility to establish accession standards for military service, pending the outcome of ongoing litigation.
In addition to Meese, the other signers of the letter include retired U.S. Army Lt. Gen. William G. Boykin, Center for Security Policy President Frank Gaffney, Retired U.S. Air Force Lt. Gen. Thomas McInerney, Retired U.S. Navy Admiral James Lyons, and Elaine Donnelly from the Center for Military Readiness.
Taking this new action would supersede the old executive action. The draft text, also obtained by Breitbart News, would allow transgender individuals to serve in the military only during the timeframe in which this court case will make its way through the court system—from the district court level all the way up through the appeals court to the Supreme Court if necessary. Their enlistment contracts would include specific provisions that they may not avail themselves of sex-change surgeries or other expensive medical options at taxpayer expense during this time, and that they will immediately be discharged from the military if and when the administration prevails in court. Doing it this way, as well, allows time for the Department of Justice to build its case out with evidence at the district court level—evidence that will eventually be considered in the very likely event that the U.S. Supreme Court eventually considers this case.
This order will likely be challenged as well. But by resetting the clock this way, a Supreme Court decision on the president’s policy would likely not come down before 2019, when it is very possible that the court will have one or two more conservative Justices in place of the potentially retiring Anthony Kennedy and the aging Ruth Bader Ginsburg.
In other words, Trump could sign a new order immediately with language close to what Meese and company are suggesting very soon. Then, the same judges at both the district court and appeals courts levels that blocked Trump’s directive from implementation would predictably block this one. The new order would replace the old one—and this new one would become the focus of the court case.
Solicitor General Noel Francisco, the Justice Department official responsible for preparing the DOJ’s legal strategy here, would then ask the Supreme Court for a stay on the lower court order blocking implementation—and by the time those actions have passed, no transgender individuals or at least very few would have gotten into the military and the case would not be on the Supreme Court docket until 2019 rather than this year, in 2018.
Again, it all remains to be seen what President Trump, the DOJ, and the Department of Defense do here in the end. The DOJ and White House have not responded to specific requests for comment about this letter and plan. But the fact that Meese, a former U.S. Attorney General for President Reagan, is signed onto this letter lends significant credibility to the idea that President Trump—who sources say has read their letter and is considering their ideas—may move forward with such a strategy.