Not so fast, Professor Zelikow!: That transgender policy change is in fact up to both the president and the Congress

Not so fast, Professor Zelikow!: That transgender policy change is in fact up to both the president and the Congress


By Diane Mazur
Best Defense guest respondent

Professor Philip Zelikow concludes that President Donald Trump has no constitutional authority to decide whether the military will “accept or allow” transgender individuals to serve. But the president does have that power, just as he has the power to continue the current Department of Defense policy allowing transgender individuals to serve openly. If only Congress could determine who serves, then all military regulations on enlistment, retention, and health care would be unconstitutional.

Zelikow asserts that the Supreme Court held in Rostker v. Goldberg that the Constitution “commits exclusively to Congress” the power to set qualifications for military service, and therefore the executive branch cannot decide whether transgender citizens should serve. But the court is quoting this language from a Senate Armed Services Committee report, not agreeing with it. The court ruled that congressional power was “broad,” not exclusive. It was deciding whether courts could overrule Congress, not whether the executive could set qualification standards.

The military determines medical qualifications for enlistment and retention. Under 10 U.S.C. § 505, the military may accept enlistments of “qualified, effective, and able-bodied persons who are not less than seventeen years of age nor more than forty-two years of age.” Congress doesn’t tell the military who is qualified, effective, or able-bodied. Federal law similarly gives the services discretion to determine if serving members should be separated for unfitness.

The Congressional Research Service issued a post-Trump-tweet update on transgender policy, and it summarized the two options at hand: either the executive branch can act, or Congress can act: “Congress may choose to defer or delegate authority to DOD for policies and regulations regarding accession, separation, and health care for transgender service members. Alternatively, Congress may draft legislation to affect such Administration policy, under its authority to make laws governing the armed forces.”

Congress does have the power to legislate qualifications, but it typically does not do that, and it is certainly not required to do it by the Constitution. The rare occasions in which Congress has legislated military qualifications leave a poor track record, notably the mistaken policy of “don’t ask, don’t tell.” Perhaps this time we could take a short cut and do it right the first time.

Diane H. Mazur is Director of Legal Research at the Palm Center; Professor of Law Emeritus, University of Florida College of Law; former U.S. Air Force officer (aircraft and munitions maintenance); and author of A More Perfect Military: How the Constitution Can Make Our Military Stronger (Oxford University Press 2010).

Photo credit: ISAAC BREKKEN/Getty Images