Joshua Matz is a constitutional lawyer based in the District. He is also the publisher of the legal analysis blog Take Care.
President Trump is hard at work making animus the law of the land. Justice Department lawyers revealed his latest effort Friday night, announcing a revised plan to exclude nearly all transgender soldiers from the armed forces.
As many commentators have observed, the reasoning offered to support Trump’s policy is riddled with empirical errors and anti-trans stereotypes. It comes nowhere close to disproving the comprehensive study in 2016 that recommended allowing transgender people to serve openly. Like so many other missives from this White House, it makes only a token effort to conceal the disdain and disgust that underlie it.
Trump’s original “transgender ban” was blocked by four federal courts. After two of those rulings were affirmed on appeal, the administration decided against seeking Supreme Court review. It’s therefore safe to assume that Trump’s latest order will not go into effect unless it survives constitutional challenges.
And in thinking about that litigation, it’s hard to escape a feeling of deja vu. A little more than 14 months into Trump’s presidency, a pattern has emerged in cases challenging some of his most despicable decisions.
Step One: Trump shoots from the hip in creating policy.
Examples are easy to come by. Shortly after taking office, Trump asked a gaggle of incompetents to make good on his long-promised “Muslim ban” — and then revealed it with little internal preparation. In February 2017, he blustered in an interview with Bill O’Reilly that he planned to use “defunding” as a “weapon” against “sanctuary cities.” And that July, he sparked temporary panic at the Pentagon with a series of inartful tweets, issued over 14 minutes, announcing that the government will not allow transgender people to serve in the military.
At this step, Trump’s animus-laden intentions are clear for all the world to see. He is moved by instinct and prejudice — his own and that of his base — rather than by any credible policy justification. Because many of Trump’s orders exist largely to symbolize the inferiority of targeted groups, they have not only caused chaos and confusion, but have also inflicted widespread suffering and cruelty.
Step Two: Trump’s original policy is successfully challenged on legal grounds.
It’s possible that no president has fared worse in court than Trump. His apologists blame “the resistance,” but often the real culprit is Trump himself. He proudly tweets his own unlawful intentions and sabotages his lawyers’ best arguments. Many of his orders, moreover, cannot withstand even cursory factual or logical review.
Step Three: The Trump administration engages in animus laundering.
When Trump loses in court, he doesn’t walk away. Instead, he grudgingly allows his lawyers and advisers to undertake a series of bogus, ends-driven “reviews.” As demonstrated by the travel ban and transgender ban cases, the goal here is to put just enough lipstick on the pig to pretend it isn’t a pig anymore. Often that is achieved by drafting a new order that uses slightly more polite and legalistic language to express the raw bigotry underlying Trump’s original decision. Justice Department attorneys can then insist in court that the (minimally revised) policy has been certified as legitimate by an assorted handful of Cabinet secretaries.
It has become fashionable to insist that advisers such as Defense Secretary Jim Mattis and Chief of Staff John F. Kelly can pacify Trump’s most destructive instincts. With respect to the president’s animus-laden orders, however, they have displayed little interest in that role. Kelly publicly championed Trump’s travel ban. And it is rumored that Mattis, despite opposing the transgender ban, deemed this fight unworthy of his political capital. As a result, Trump’s agencies have largely run on animus autopilot.
Step Four: Trump’s revised policy is again challenged in court.
Brandishing a new executive order, Trump’s lawyers insist that any deficiencies have been cured. The plaintiffs who challenged the original policy, however, are unimpressed by this claim. They poke holes in the shoddy, results-oriented justifications advanced by the government. And they emphasize that minor tinkering cannot save a policy whose only reason for existing in the first place was Trump’s desire to harm a vulnerable group.
It remains to be seen when and where these arguments will succeed. As a logical matter, there must be some limits. Evidence that Trump originally acted with impermissible motives cannot (and should not) permanently preclude him from making policy.
But that isn’t the situation we confront. Trump has made no effort whatsoever to dispel or deny the aura of animus that envelops so many of his orders. To the contrary, he and his advisers have leaned into the hate. With each passing day, it spreads like a poison.
We thus live in a strange new world, where bigots serve openly and soldiers are forced into closets.
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