U.S. District Judge Colleen Kollar-Kotelly held up Trump’s tweets to the contrary.
Among them this one, from July 26: “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow … Transgender individuals to serve in any capacity in the U.S. Military.”
“To the extent there is ambiguity about the meaning” of Trump’s proposed ban, “the best guidance is the president’s own statements regarding his intentions with respect to service by transgender individuals,” Kollar-Kotelly wrote.
This isn’t the first time a judge has used Trump’s public statements to question the rationale for a policy change offered by the administration’s lawyers. Judges have reached similar conclusions in litigation over Trump’s travel ban and crackdown on sanctuary cities. After examining the administration’s reasoning and comparing it with Trump’s remarks on Twitter or television, they’ve found, in essence, that the administration is making it up as it goes along.
Trump announced the ban on transgender troops over the summer in a string of tweets, claiming, without evidence, that they caused “disruption” and saying they would no longer be allowed to serve “in any capacity.” A more formal presidential memorandum followed that instructed the Defense Department to study the matter and roll out the ban early next year. Shortly after, a group of transgender service members filed suit, alleging that the policy violated their Fifth Amendment rights.
In court, administration lawyers argued that the case should be thrown out because the Pentagon was still deciding how to implement Trump’s order. Nothing was set in stone, they said, so the plaintiffs’ allegations were just speculation.
The 76-page ruling contained screen shots of Trump’s three tweets announcing the ban. It’s common to see those sorts of images in civil complaints filed by attorneys, but it’s rare for judges to include them in opinions.
Kollar-Kotelly said that such a ban stood a good chance of being ruled unconstitutional in court as a denial of due process and equal protection for transgender people. The government, she said, presented “no argument or evidence suggesting that being transgender in any way limits one’s ability to contribute to society.”
For that reason, it’s a form of discrimination “on the basis of gender” that would cause “irreparable harm” to transgender people if not blocked while the court considers the full merits of the case.
Her order underscored a critical flaw in the Trump administration’s approach to changing policy.
Ordinarily, when a president announces a major executive order, his lawyers already have done the legal legwork to make sure the policy is constitutionally sound. Nearly all executive orders are challenged in court, so being able to justify them in front of a judge — not to mention the American public — is crucial.
That means coming up with reasons for those orders that make sense, and show that the administration has studied the matter before issuing its edict.
But in the current administration’s method has been to announce the change first and then look for justifications later.
Trump has boasted about broad policy changes on Twitter and in news interviews, then sent the administration’s lawyers scrambling to find justifications. Over and over again, the judges hearing lawsuits about those policies have found the administration’s arguments weak at best, nonexistent at worst and often in direct contradiction to public statements by Trump.
In litigation over Trump’s travel ban, which originally restricted travel from several Muslim-majority countries, administration lawyers argued that it was neither a ban nor aimed specifically at Muslims. But litigants challenging it, and judges hearing the cases, pointed to remarks that he and his surrogates made calling for a “Muslim ban,” saying it was evidence that the policy was discriminatory.
Administration lawyers argued that the ban was necessary to protect national security. But one judge after another found that Trump’s loose talk on the campaign trail, along with commentary from people close to him, showed that the policy was motivated more by “religious animus” than by concerns about the country’s safety.
A similar chain of events played out in litigation over Trump’s executive order on sanctuary cities, which threatened to cut off funding from local governments that don’t cooperate with immigration authorities.
Trump and some of his top officials bragged about how they intended to punish cities they think are too soft on undocumented immigrants. When some of those cities challenged Trump’s order in court, the administration’s lawyers portrayed it as something much more benign, noting that, at the time, the administration had not yet defined what a sanctuary city was or threatened to withhold money from any particular jurisdiction.
The federal judge hearing the case in California zeroed in on those discrepancies, citing news conferences, remarks by White House officials and television appearances by Trump himself. The judge froze the order, ruling that the plaintiffs had a good chance of showing that it was unconstitutional.
Kollar-Kotelly reached a similar conclusion in Monday’s ruling on Trump’s transgender military ban.
The president had made his decision “without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans,” she said.
Indeed, the judge added, the administration’s stance was contradicted by multiple military studies that found that transgender troops should be allowed to serve openly.
“In short,” the opinion read, “the military concerns purportedly underlying the President’s decision had been studied and rejected by the military itself.”