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Gaffney: Judges Create Constitutional Crisis on Transgender Military Order

Gaffney: Judges Create Constitutional Crisis on Transgender Military Order
U.S. President Donald Trump walks across the South Lawn before boarding Marine One and leaving the White House December 22, 2017, in Washington, D.C. (Chip Somodevilla/Getty Images)

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Wednesday, 03 January 2018 05:26 PM Current | Bio | Archive

For the first time in American history, the federal judiciary has countermanded a direct and lawful order to the U.S. armed forces by their Commander-in-Chief. The issue is less about the substance of the order — prohibiting the enlistment of individuals who consider themselves to be “transgender” — than it is about our republic and what is required to secure it.

It is no exaggeration to say that, unless Donald Trump vigorously challenges this affront to the Constitution and the power it vests exclusively in the president, the man who pledged to end political correctness in the military and return to the practice of peace through strength may prove unable to do either — or even to preserve the national security — without the courts’ permission.

This constitutional crisis was precipitated when several federal district judges and two appellate court panels refused to accept Mr. Trump’s decision to preclude transgender individuals from being enlisted in the military. The jurists seemed no more concerned about the dire implications of their action for the uniformed services’ readiness, unit cohesion, and budgets than they were about the clear dictates of the Constitution’s separation of powers.

Tragically, President Trump’s response last week reflects the advice of subordinates who opposed his decision on transgenders in the military. Rather than seek a stay on the January 1 initiation of such enlistments from Supreme Court Chief Justice John Roberts (who could have provided such relief on his own authority on separation of power grounds), the administration has announced that it is going to await the completion of a Pentagon study of the transgender issue before deciding how to proceed.

The adverse impact of this decision won’t wait, however. Pursuant to the courts’ direction, the Pentagon is now enlisting individuals with a psychological disorder known as gender dysphoria that will likely result in surgery and/or hormone treatments rendering them non-deployable for months at a time. In addition, their access to showers, bathrooms, and barracks will surely have an adverse on morale and good order and discipline. And, by some estimates, the costs to the military of the associated medical care, to say nothing of transgender “sensitivity training” for non-transgender troops, are likely to run as high as $3 billion dollars over the next 10 years.

Worse yet, the fix appears to be in on the Defense Department study. It is, after all, being run by Anthony Kurta, a top architect of the Obama administration’s efforts to engage in social re-engineering of the armed services. By the end of February, it is absolutely predictable that Mr. Kurta’s team of LGBT activists and their supporters will have endorsed the idea of recruiting transgender individuals — making it, if anything, even harder for the president to do the right thing than it proved to be during the Christmas holidays.

More to the point, if Donald Trump does not challenge the precedent that judges — rather than the Commander-in-Chief — can determine who will serve in the U.S. armed forces, they will presumably in the future also assert the right to dictate what those they allow in will do, or not do, while in uniform. For example, injunctions might be issued if troops don’t want to go to war or otherwise be put in harm’s way. This is, of course, a formula for completely breaking the only military we have.

For all these reasons, on December 21, former Attorney General Edwin Meese, former Commander-in-Chief Pacific Fleet Admiral James “Ace” Lyons, former Deputy Under Secretary of Defense for Intelligence Lt. Gen. William “Jerry” Boykin, former Assistant Air Force Chief of Staff Lt. Gen. Thomas McInerney, Elaine Donnelly, a former member of the Presidential Commission on the Assignment of Women in the Military Elaine Donnelly, and I wrote President Trump warning of the dangers of inaction in the face of such negative outcomes. In our letter, we urged him to seek a stay of the lower court rulings from the Supreme Court and, in the absence of such a stay, to issue new orders to the Pentagon and the Department of Homeland Security, which oversees the Coast Guard.

The proposed directive would make the court-ordered recruitment of self-described transgender individuals subject to a “conditional accession” in light of the ongoing dispute over whether they can be enlisted at all. Such a status would afford an opportunity for the government to resolve that dispute before assuming the responsibility to provide them with expensive medical treatments and other accommodations that may prove to be unjustified constitutionally.

President Trump has a responsibility to our armed forces and to the nation to protect the powers vested in him as Commander-in-Chief. Just as “hard cases make bad law,” the decision to do so in the context of the transgenders in the military issue may obscure what is fundamentally at stake. But it is his sworn duty to “preserve, protect and defend the Constitution.” To do so in this instance, he must use whatever tools are available to him to prevent federal judges from countermanding his direct orders to those below him in the chain of command — including by seeking a Supreme Court stay with respect to this instance of reckless judicial overreach and, failing that, by requiring that any transgender individuals enlisted be given a conditional accession until the matter is resolved.

Frank Gaffney, Jr. is president of the Center for Security Policy (CSP), a columnist for The Washington Times, and host of the nationally syndicated program, Secure Freedom Radio. Read more reports from Frank Gaffney, Jr. — Click Here Now.

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For the first time in American history, the federal judiciary has countermanded a direct and lawful order to the U.S. armed forces by their Commander-in-Chief.
trump, transgender, military, ban, constitution, judiciary
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2018-26-03
Wednesday, 03 January 2018 05:26 PM
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