//  8/30/17  //  Commentary

Woah!  Did “Mad Dog Mattis” just overrule the Commander-in-Chief and put Trump’s discriminatory “trans ban” on hold? 


Late Tuesday night, Secretary of Defense Jim Mattis issued a statement providing that he would “develop a study and implementation plan” with respect to Trump’s ban on military service by transgender people.  “In the interim,” Mattis stated, “current policy with respect to currently serving members will remain in place.”  Almost immediately, news outlets—most notably, USA Today—breathlessly reported that Mattis had “frozen” Trump’s transgender ban.

But Mattis had done nothing of the sort.  That is true for four reasons. 

First, by its terms, the ban on transgender persons who are now serving in the military does not take effect until March 23, 2018.  Mattis’s statement that “current policy” would remain in place “with respect to currently serving members” was thus fully consistent with the “trans ban” itself.

Second, Trump’s “trans ban” order directsSecretary Mattis to “submit . . . a plan for implement[ation].”  Mattis’s statement confirmed that he would submit such a plan.  At bottom, then, Mattis said that he would comply with Trump’s order—not disobey it. 

Third, Mattis’s statement did nothing about the immediately applicable portion of the “trans ban”: its categorical bar on transgender persons from enlisting in the military.  Under an order issued last summer by former Secretary of Defense Ash Carter, openly transgender people were supposed to have been able to enlist no later than July 1, 2017.  That deadline—already delayed by the Trump Administration—has now been eliminated altogether.  In other words, as a result of the “trans ban,” transgender people who wish to serve are indefinitely barred from enlisting.  That means the military, right now, is turning away able-bodied individuals who are willing to die for their country—and who had planned their lives and careers around military service.  Nothing in Mattis’s statement changed that.

Fourth, and most fundamentally, it’s unclear how the Secretary of Defense could “freeze” an order by the President of the United States.  The Constitution provides that the President is Commander-in-Chief of the armed forces.  The Secretary of Defense is a subordinate officer.  Neither the Constitution nor the military’s chain of command contemplates that the Secretary of Defense can veto a Presidential command.

Now, it is true that the “trans ban” allows the Secretary of Defense to recommend allowing transgender people to serve.  The ban provides that it will remain in place “until such time as the Secretary of Defense” and the “Secretary of Homeland Security” provide a “recommendation to the contrary” that the President “find[s] convincing.”  But that provision means next to nothing.  The President can always change his mind if he finds a contrary recommendation convincing (or, for that matter, for any other reason).  After all, where the President has unilateral authority to enact a policy, he generally has unilateral authority to rescind it.

So, no.  Secretary Mattis did not—and could not—freeze Trump’s “trans ban.”  The fantasy that he did is simply the latest example of wishful thinking that Trump’s worst impulses can be checked by forces of good in the White House.  Remember how Jared, Ivanka, and Rex Tillerson were going to prevent Trump from withdrawing from the Paris Accords?  Or how the Department of Justice was going to prevent the Arpaio pardon?  Or how Chief of Staff John Kelly was going to “impose order at the White House”?  Yeah…about that.

At this point, it’s become abundantly clear that nobody in the Executive Branch can check the President’s worst impulses.  Since being sworn in eight months ago, Trump has (among other things) issued a discriminatory “Muslim ban”, signed orders dismantling America’s efforts to address climate change, withdrawn from the Paris Climate Accords, started a sham “Commission on Election Integrity” to indulge Trump’s personal fantasy that he won the popular vote, rescinded protections for student borrowers, accused President Obama of wiretapping him, fired an FBI Director who was investigating him, threatened to rain “fire and fury” on North Korea, pardoned Joe Arpaio, and called some white supremacists “very fine people.”[1]  Through it all, we hear that various Trump officials are privately dismayed, or furious, or saddened by the President’s actions.  And maybe they are!  But plainly, they’re unable to stop him—either because the chain of command prevents them from doing so, because this President fails to listen to good advice, or some combination of the two.

None of this is to say, of course, that victories haven’t been notched against some of Trump’s worst policies.  But in the main, those victories have not been won from inside the White House.  Some victories have been won in court (for example, the partial enjoinment of the Muslim ban; or the enjoinment of Trump’s order blocking funds for sanctuary cities).   Some have been won in Congress (for example, Trump’s failure to repeal the Affordable Care Act, and his failure to repeal President Obama’s methane regulations).  Still others have been won via federalism (for example, states’ refusal to provide voter information to the “Election Integrity” commission).

The same is likely to be true of Trump’s discriminatory “trans ban.”  Although the Secretary of Defense lacks the authority to “freeze” a directive from the Commander-in-Chief, courts can definitely do so.  As the Supreme Court has repeatedly held, neither Congress nor the President may “disregard the Constitution . . . in the area of military affairs.”  And—for reasons explained on this blog and elsewhere—Donald Trump’s “trans ban” is so transparently motivated by animus, and so lacking in justification, that courts may well invalidate it as a violation of the Constitution’s equal protection principles.

So yes: the “trans ban” may soon be frozen—and ultimately invalidated.  But that invalidation, if and when it occurs, will most likely be due to the efforts of dogged litigators, judges committed to equal protection principles, and our Constitution’s system of checks and balances.  Trump’s White House, at the end of the day, is unlikely to check Donald J. Trump.

Follow Eli on Twitter: @EliNSavit

[1] I could go on.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Trump Judges Strike Down Bans on Conversion Therapy

11/25/20  //  In-Depth Analysis

The 11th Circuit held that laws banning conversion therapy — a brutal practice that significantly increases depression and suicide among LGBTQ youth — violate speech rights. The decision signals how Trump-appointed judges could weaponize the First Amendment to roll back civil rights.

Take Care

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP