President Donald Trump isn’t going to wait for liberal federal appeals court judges to uphold an injunction on the military’s transgender ban. Instead, he’s asking the Supreme Court to cut out the middleman and rule on the matter directly.
The 9th U.S. Circuit Court of Appeals in San Francisco has already heard heard oral arguments in a case that will decide whether or not lower court injunctions cancelling the transgender ban should be lifted or remain in place. However, the White House isn’t expecting a favorable ruling from the liberal-dominated appeals court.
Trump has slammed the partisan nature of the 9th circuit before. “We get a lot of bad court decisions from the 9th Circuit, which has become a big thorn in our side,” the president said.
“We always lose,” Trump told an Air Force commander stationed in Afghanistan. “And then you lose again and again. And then you hopefully win at the Supreme Court, which we’ve done.”
The president is asking the judiciary to save the time and effort of spending weeks in court arguing the matter, since the losing party will take the suit to the Supreme Court regardless of the 9th circuit’s holding. The same court previously stood in the way of multiple White House policies, stopping Trump’s effort to end DACA, delaying implementation of a travel ban, and resisting the administration’s efforts to stop funding sanctuary cities.
“It’s a terrible thing when judges take over your protective services when they tell you how to protect your border,” Trump said.
Banning the ban
The president originally announced his pursuit of a policy restricting transgender service on Twitter, writing that the military “cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.” He said he made the decision “[a]fter consultation with my Generals and military experts.”
LBGT advocates responded by filing Doe v. Trump, a lawsuit filed by several anonymous transgender service members arguing that it was unconstitutional to limit their service based on their gender identity, rather than their job performance. Three similar lawsuits followed, and plaintiffs soon won a preliminary injunction preventing military leaders from executing the order.
The administration sought to get around the injunction by releasing a memorandum, published in March after “extensive study by senior uniformed and civilian leaders,” which sanctioned commanders to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”
Those orders, sponsored by Secretary of Defense James Mattis, said that trans people are “disqualified from military service except under certain limited circumstances.” However, federal court judges in Washington state, California, and Washington, D.C. refused to lift their injunctions, ruling that the new orders were just a continuation of the old policy, or a back-door attempt to get around the federal ban.
Same old bag of tricks
Liberal courts succeeded in temporary blocking another presidential order, the Trump administration’s travel ban, by using the same tactic in 2017. Even after the White House revised this executive order twice to allay fears that Trump was unfairly targeting Muslim visitors, courts in Hawaii and Washington kept their injunctions blocking the order in place.
It didn’t matter that the travel restrictions targeted countries that failed to properly vet their own citizens, or that the latest iteration of the policy included non-Muslim countries like Chad, North Korea and Venezuela. Partisan judges are exercising the same discretion regarding the transgender ban, ignoring the substance of the revised memorandum and making judgments about the political nature of the policy.
Federal judges have exceeded their constitutional authority since Trump was elected, issuing sweeping orders that effectively hamstring the president’s national security agenda. When a single regional court in Hawaii can exercise powers that set national security policy, something is wrong.
Fortunately, Trump has gotten wise to the political maneuvering of the federal judiciary, and he’s had enough. It’s time for the Supreme Court to right these wrongs — one court ruling at a time.