//  7/31/17  //  Commentary

I’ve heard that the definition of insanity is doing the same thing over and over and expecting different results.

On Wednesday morning, the President stated on Twitter:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow …..

After leaving us hanging for a few minutes, he then tweeted the rest of his “advise[ment]”:

…. Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming ….

… victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you

Uh, you’re welcome? I will entertain for most of this post the possibility that the President’s tweets will actually be implemented as a policy. It is far from clear that will happen ever, or anytime soon. A Directive-type Memorandum by the Department of Defense allows transgender individuals to serve in the military. Together with a DOD Instruction, that memo also provides that service members are entitled to medical coverage for transitions. After the President’s statements, General Joseph Dunford of the Joint Chiefs of Staff issued a memorandum that said:

“There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance. In the meantime, we will continue to treat all of our personnel with respect.”

But this administration often dispatches with norms and laws with lightning speed. For example, it’s not clear whether, before I write this post, the President will formalize his tweets into something that has the force of law, or that the Joint Chiefs of Staff will recognize as a directive. So I wanted to write a backward-looking comparison between this “ban,” should it become an actual ban, and the other ban—the entry ban. The two bans are similar in both procedure and substance in ways that underscore the deficiencies of both, as well as some of the risks posed by this administration.

Rollout. The bans were rolled out in a similar fashion.

The relevant officials were told little or nothing. The Acting Attorney General learned about the entry ban on the news. Customs and Border Patrol (an office of the Department of Homeland Security) was not informed about the entry ban before the President had signed it, even though CBP would implement aspects of the ban. The transgender ban was rolled out with similarly zero notice to the relevant government offices. The Joint Chiefs of Staff and Pentagon officials were told nothing about the “policy” “announcement,”  which is how Press Secretary Sarah Sanders  referred to it, even though the “policy” “announcement” concerned their personnel.

People were stuck in limbo. Because the administration did not give advance notice of its policies, people subject to the bans were left in limbo. People were on planes headed to the United States when the entry ban was signed. The ban left them stuck at airports, or flown out of the United States. Service members serving abroad heard that the President had announced they would no longer be allowed in the military. Effective when? Who knows. A day later, Press Secretary Sanders said that the White House was working to implement the President’s “policy announcement.” That still leaves transgender service members abroad with little to go on by way of their employment status. (The Chief of Naval personnel has referred all questions about the policy to the White House.)

The White House has no clue about the details of their policies. When the first entry ban was announced, the officials and offices within the executive branch provided conflicting guidance on the scope of the entry ban—did it apply to lawful permanent residents, or people with green cards? Did it apply to persons who had already been granted visas? The White House similarly had no clue about what “policy” the President had “announced” with respect to transgender service members—did it apply to those currently serving? Does it really foreclose transgender individuals from serving “in any capacity” in the military, or only in combat? Sanders was only able to say that the White House was working to lawfully implement the policy, rather than what the policy is.

Formulation.  The bans were also formulated in a similar fashion.

The officials with relevant expertise were not consulted. The first entry ban was not formulated with any input from agencies with law enforcement or national security expertise. The second entry ban rested on a conclusory statement that the Attorney General and Secretary of Homeland Security had “determined” that the first ban (which was made without any input) had somehow miraculously landed on the law enforcement and national security determination the AG and DHS Secretary would have made anyways. The transgender tweets were not formulated with input from military officials, even though the President’s statements justified his stated policy on grounds of military necessity and the cost to the military.  (Read Michel Paradis's great piece on Lawfare for more on that point.)

Purposes. The reasons behind the bans also resemble one another in how little basis they have in fact; the shifting and varied reasons the administration has given for the bans; and their legal deficiencies.

Fact free and fact lite. The reasons behind the bans are notably fact lite, if not fact free. The President stated that transgender service members cause “tremendous medical costs and disruption.”The Department of Defense had previously commissioned a study on transgender service members by the RAND Corporation, which estimated that there are between 1,320 and 6,630 transgender people in the military. Given that military officials seem okay with the current policy, which allows transgender service members to come out as transgender, the claim of disruption seems a little odd. Also odd is the claim of “tremendous medical costs,” given the RAND Corporation’s findings—not all transgender service members would have gender-reassignment surgery, and the additional costs to the military if it covered those surgeries would be between $2.4 million and $8.4 million each year, which would increase in the military’s budget somewhere between 0.04 to 0.13 percent. (By way of comparison, the military spends $41.6 million annually on Viagra.) Even granting those costs, the policy does not merely decline to provide coverage for gender-reassignment surgeries, as a recent House amendment would have done. The policy instead excludes transgender persons from serving altogether.

It was also easy to drive a truck (or several trucks) through the holes in the stated reasons for the entry ban, and the accompanying suspension of the refugee program. The administration first stated that the entry ban was necessary to allow the government to review existing entry procedures. But as Sanders stated in her press conference last Thursday, the President is “aware that he can walk and chew gum at the same time.” The administration has also, since June, been reviewing existing procedures while applying them, subject to the additions the Supreme Court made to those procedures. With respect to “national security,” there was no evidentiary basis for the order’s conclusion that existing procedures are inadequate to prevent the entry of persons committed to terrorism. (Read the Ninth Circuit’s demolishment of the irrelevant anecdata the administration relied on to justify the bans.) As Hawaii explained in its brief to the Ninth Circuit: “The Order relies exclusively on concerns about vetting procedures and violence in Middle Eastern and North African countries, Order § 1(d), (f), but its restrictions would apply to ‘a Syrian national who had lived in Switzerland for decades,’ TRO at 37, or an individual seeking refugee status from Venezuela. And even DHS has admitted that nationality (let alone refugee status) is an ‘unlikely indicator’ of an individual’s terrorism threat.”  

Cutting Off Actual Data Collection.  Both bans also circumvented governmental fact-finding procedures.  Before the President's tweets, the Defense Department was already committed to undertaking a months-long review of policies on transgender service members, their effects on the military, and how to enroll new transgender service members (in addition to those already serving openly as trasngender persons).  The President cut that fact-finding off, and interjected an "announcement" of a flat out ban on trasngender service members.  The administration similarly jumped to create a ban before any collection of facts with respect to the entry ban.  As the government has written in its briefs to the Supreme Court, the President was "uncertain" whether admission under existing procedures posed a risk of admitting people committed to terrorism.  So instead of collecting data and studying it, he implemented a ban at the same time he ordered data to be collected.

Shifting And Inconsistent Purposes. There were also shifting and inconsistent statements about the purposes of both bans. The President’s initial statement maintained that the transgender ban was to avoid military disruption and costs. A Trump administration official stated later that the trans ban was actually done to increase Republicans’ chances in the midterm elections, because it would “force[] Democrats in Rust Belt states like Ohio, Michigan, and Wisconsin” to take politically unpopular positions in their 2018 re-election campaigns. Other reports indicated the transgender ban was done to secure a deal that would free up money for his border wall, which Mexico was supposed to pay for anyways.

The entry ban has similarly been plagued by a disconnect between what the “official” policy or statement says about its purposes, and what the administration, including the President, say elsewhere. The official statement about the entry ban is that it is for national security and to allow the government to review existing procedures. The hordes of other statements coming from the President and his administration indicate that its true purpose is to ban Muslims from entering the United States, and to fulfill the President's campaign promise on that score.

Legal Deficiencies. The legal flaws in both bans also resemble one another. (Richard Primus and Jamal Greene have explained the legal deficiencies with the TBD transgender ban; Joshua Matz, Ian Samuel, Amir Ali, Marty Lederman, and others have explained the legal deficiencies with the entry ban; here I’ll just highlight some similarities between them.) The bans are wildly over-inclusive--their scope is wildly out of line with their purported purposes.   Trump’s tweets suggested there would be a ban on transgender persons from serving in the military “in any capacity.” But if the policy is designed to prevent disruption in the military, why would it necessary to prohibit a transgender person from serving as a military chaplain or lawyer? The entry ban is similarly breathtaking in scope: It suspends the admission of refugees from six countries with no evidence that refugees pose any particular risk of terrorism, and it suspends the entry of nationals who have spent no meaningful time or any recent time in their countries of nationality, even though the conditions in those countries are purportedly what creates the risk of terrorism.

The scope of the bans, coupled with the lack of any evidence that suggests the bans would accomplish their stated goals, is good evidence that the bans are motivated by impermissible purposes—animus toward particular groups, or a desire to accommodate animus toward those groups, and, in doing so, win midterm elections.  Neither reason is a legitimate one.

The processes that led to the two bans (or, may lead to the ban in the case of transgender service members), as well as the bans' scope and effect is more than enough to suggest the bans originated in circumstances that rebut the presumption of regularity

One last note, which I’m not sure where to fit in but need to because it’s terrifying: The Buzzfeed story about the President’s statements on transgender service reported that:

At the Pentagon, the first of the three tweets raised fears that the president was getting ready to announce strikes on North Korea or some other military action. Many said they were left in suspense for nine minutes, the time between the first and second tweet. Only after the second tweet did military officials receive the news the president was announcing a personnel change on Twitter.



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