Today, the American Civil Liberties Union filed a lawsuit against the Trump administration in an effort to challenge the now-officially-ordered ban on the recruitment of transgender soldiers into the American military. The suit is grounded in the Equal Protection Clause of the 14th Amendment, claiming that “the ban is unconstitutional because it discriminates against transgender people and treats them unequally.” While there is much to say about the legal merits of the case, I’ll leave those arguments to people with more expertise than I in such matters. However, the case is interesting to me because it, along with several other lawsuits already in progress, might help us determine the limits of executive authority and judicial deference to the president.
Judicial deference is the practice in which courts are reluctant to issue rulings in areas for which legal findings aren’t well suited or might not appropriately overrule policy decisions. In US constitutional law, this often occurs in the realm of foreign policy and national security law, areas in which the courts often lack expertise and in which the urgency and the needs for security and secrecy are often understood to trump narrow legal rulings. Famous examples include the unwillingness of the courts to reach decisions that could, even by inference, imply recognition of Taiwan as a state or the interpretation of rules concerning the procedures by which one applies for asylum. Perhaps the most infamous and important instance of deference occurred during World War II when the Supreme Court refused to overturn the Executive Order interning Japanese-Americans. Deference is not absolute and there are times when the courts most definitely do not defer to the president, and the ACLU’s suit touches on one such time. Courts generally do not defer to the president on the meaning of the Constitution, but as Korematsu demonstrates, when the Constitution butts up against a presidential claim of national security, all bets are off.
Of course, the president will claim that the presence of transgender recruits will ““hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources” and that the ban is necessary to ensure national security. As commander-in-chief of the military and pursuant to his Article II powers, the administration will certainly argue that the president should be given broad discretion to determine the composition of the armed forces (setting aside the issue that Congress is given the power to “make Rules for the Government and Regulation of the ground and Naval forces.” If Congress chooses to overturn the president’s order it could certainly do so, but in this political climate such a move seems unlikely at best.). Furthermore, as the head of the Department of Defense and the Executive Branch, the president’s judgment should not be questioned on narrow and politicized legal interpretations by judges lacking the requisite expertise. That’s a pretty powerful argument to which courts have frequently deferred in the past.
But, there’s a very serious chance that this time will be different and the courts will decide to insist that the 14th Amendment should control in this case. Why? Simply put, because there seems to be no rational basis for the president’s claim that permitting transgender individuals to serve in the US armed forces undermines national security in any way or to any degree.
Under the Obama administration, the Department of Defense had, after a significant review, concluded that “there was no basis for the military to exclude transgender people, as long as they could meet the same fitness requirements as other service members. The review examined medical care, military readiness and other factors.” These findings are supported by outside research as well. Last year, a RAND study concluded that “the limited research on the effects of foreign military [18 countries allow transgender individuals to serve in their militaries, including Israel, which is often cited as the model of a country that needs to prioritize national security issues] policies [regarding transgender individual serving in national armed forces] indicates little or no impact on unit cohesion, operational effectiveness, or readiness. Commanders noted that the policies had benefits for all service members by creating a more inclusive and diverse force. Policy changes to open more roles to women and to allow gay and lesbian personnel to serve openly in the U.S. military have similarly had no significant effect on unit cohesion, operational effectiveness, or readiness.” Additionally, RAND found that “extending gender transition–related health care coverage to transgender personnel indicated that active-component health care costs would increase by between $2.4 million and $8.4 million annually, representing a 0.04- to 0.13-percent increase in active-component health care expenditures,” and that “even upper-bound estimates indicate that less than 0.1 percent of the total force would seek transition-related care that could disrupt their ability to deploy.” Another study from The Williams Institute of UCLA’s School of Law found that “transgender individuals are about twice as likely as adults in the US to have served their country in the armed forces” to no apparent detriment to readiness or national security. In reporting on the president’s decision, several news sources have noted that the decision was apparently motivated by domestic political concerns, namely “strenuous lobbying from conservative members of Congress who had threatened to hold up a spending bill with money allocated for a border wall — a key policy priority for the president — if the military was allowed to pay for sex-reassignment surgeries.”
This raises the fascinating question of whether the courts will extend deference to the president on an issue in which deference would be expected (although again, not necessarily absolute) when the president’s justification seems to lack any basis in rational policy, let alone the proffered justification. A quick and informal Google search reveals not one credible study demonstrating that allowing transgender individuals to serve undermines readiness, unit cohesion, or fighting capibilities.
So, while the president should generally expect judicial deference on issues of national security and military readiness, is such deference reasonable in the absence of any reasonable justification? Put another way, courts will bend over backwards to avoid substituting legal interpretation for policy judgment when there seems to be any rational basis for the president’s action (as it did in the Korematsu case). But what should the courts do when there is no obvious rational basis for the decision?
Interestingly, this issue has already surfaced a few times under the Trump administration, most notably in the initial blockings of the “travel ban.” As I wrote back in February:
The Trump administration offered no justification for its claimed need to suspend entry of immigrants, even those with already-issued visas. The court ruled that:
‘The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above.’
This is also big. The court is asserting that there has to be some rational basis to uphold a claim based on national security. This is, if the Supreme Court chooses to review this judgment, the most likely ground for overturning the decision and reinstating the executive order. But, given the lack of a declared war and the concerns over due process and religious discrimination discussed below, I think this is a reasonable claim.
Ultimately, Trump’s immigration rules were adjusted and the argument above was never resolved. But I expect that a similar issue will arise when the ACLU’s lawsuit is heard. I suspect that lower courts will be sympathetic to the argument that a decision, especially one that violates a core constitutional right like equal protection, must be backed by some rational basis if it is to be given deference. Whether the Supreme Court will agree is a question better left to court watchers and legal theorists. But, either way, we might finally be able to learn the limits of judicial deference to the executive branch.
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