The law says transgender policy is for Congress to decide, not the president

By Philip Zelikow
Best Defense guest columnist

In the flurry of media comment on this, I did not see anyone point out that the issue of whether transgender individuals can serve in the armed forces is within the exclusive constitutional authority of the Congress.  It is not part of the president’s commander-in-chief power, even in a pretty expansive reading of that power.

So there may not be any legal need to get to the civil rights/equal protection issues.  These are more complicated and they play up the culture war meme that President Donald Trump trying to stoke, for his political benefit.

The president has very broad authority over what the military should do.  But under Article 1, Section 8 of the Constitution, it is the Congress that has the power to “raise and support Armies.”  Therefore only Congress can decide who is eligible or ineligible for military service. The basic chain of cases here starts with Rostker v. Goldberg, 453 U.S. 57 (1981), which was on the issue of whether it was constitutional to exclude women from the draft.

The Supreme Court, in an opinion written by Chief Justice William Rehnquist, held that it was constitutional, because the Constitution “commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for Government and regulation of the land and naval forces.”  453 U.S. at 65.  Note that word:  “exclusively.”

I assume every Department of Defense (DoD) lawyer worth her or his salt knows this.

There is scope for the DoD (and the president) to work on specific qualifications to serve, subordinate to and within the relevant congressional authorities.  For instance, when President Harry S. Truman issued a 1948 executive order to desegregate the armed forces, he was not overriding any congressional action. He was changing the qualification rules in armed forces in which African-Americans already served, to require equal treatment and opportunity.  To change the qualifications for service would require DoD to show a record of work on the qualifications issue in order to support such a subordinate determination without usurping the congressional power. Not only was that not done here, the opposite had occurred under Secretary Ash Carter.  Also, in this case Congress has acquiesced to a DoD determination on this the other way, as the Senate chair of Armed Services (John McCain) has just reaffirmed. But a categorical determination about which citizens can serve seems to fall clearly in the power committed “exclusively” to the Congress.

So I would think that a good DoD general counsel would advise the secretary that he cannot legally enforce the president’s tweet to disqualify current transgender servicemen and women. If I were advising the secretary, I might suggest that he could treat the president’s tweet as a request for a reevaluation of the qualifications issue. He could then enlarge the scope of the current study underway about how to handle this in the future. Then, after that conclusion is in, the Secretary could consult with and defer to the Congress about the best way to proceed.

Philip Zelikow is a professor of history at the University of Virginia.  After practicing law in Texas he has served, in addition to his academic career, administrations of both parties with the Navy, the State Department, the White House, and at Defense.  He was also the executive director of the 9/11 Commission.

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