Unless Congress acts to legislatively protect transgender people’s right to serve, the president can have his way.
- By Russell SpivakRussell Spivak is a third year law student attending Harvard Law School. A 2013 graduate of the Massachusetts Institute of Technology, he previously interned in the Office of the Chief Prosecutor in the Office of Military Commissions.
Last week, President Donald Trump took to Twitter to announce his intended reinstatement of a ban on openly transgender people serving in the U.S. armed forces:
After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow……
— Donald J. Trump (@realDonaldTrump) July 26, 2017
….Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming…..
— Donald J. Trump (@realDonaldTrump) July 26, 2017
….victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you
— Donald J. Trump (@realDonaldTrump) July 26, 2017
Other commentators have already analyzed the merits of the suggested change in policy. But there is another interesting question here about the tweets’ impact — or lack thereof — in effecting the necessary procedure for a change in military personnel. Exploring that question requires examining past changes to policies governing military demographics.
This isn’t the first time the public has been forced to consider the legal import of Trump’s tweets. Whether the president’s tweets carry official weight was also a major question in litigation over the so-called travel ban. On June 6, in response to inquiries from reporters about Trump’s tweets criticizing the Justice Department and defiantly declaring his order “a TRAVEL BAN,” Sean Spicer, then the White House communications director and press secretary, said: “The president is the president of the United States, so they’re considered official statements by the president of the United States.”
But even assuming tweets can be construed as official statements evincing intent, in the words of Harvard Law Professor Jeannie Suk Gersen, “[a] tweet by a president is neither a law nor an executive order.” Gersen’s conclusion that the president’s tweets do not have legal effect and therefore do not actually impact Defense Department policy has been widely echoed.
Her view is, most importantly, one shared by Chairman of the Joint Chiefs of Staff Joseph Dunford, the country’s highest-ranking uniformed military officer. The day after Trump’s tweets, Dunford issued a letter to the service chiefs, commanders and senior enlisted leaders of each service branch, stating:
I know there are questions about yesterday’s announcement on the transgender policy by the president. There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.
In the meantime, we will continue to treat all of our personnel with respect. As importantly, given the current fight and the challenges we face, we will all remain focused on accomplishing our assigned missions.
Dunford’s letter suggests that although Trump is the commander-in-chief and in charge of the executive branch and the armed forces, a mere official statement is not an order, military or executive, as would be required to compel Defense Secretary James Mattis to overhaul policy.
Commentators, however, have not discussed the mechanics of how the president might go about issuing such an order and either effectuating or undermining his tweets — and whether Mattis could act himself without Trump’s further prompting. There is no exact playbook for this, but the process is governed by some overarching principles and procedures. These are apparent in the implementation of past changes to military policy regarding who may serve — namely, in furtherance of racial and gender integration.
The necessary step to making across-the-board policy changes for the military is an order from the secretary of defense. The secretary can make this change under an official order from the commander-in-chief, or could do so of his or her own volition. In the former case, the president would author a decree directed at the secretary of defense. These instruments need not take the form of an executive order; they could also involve presidential memoranda or proclamations. According to the Congressional Research Service (citing a report from the House Government Operations Committee), all such instruments have the same force so long as they are “founded on the authority of the President derived from the Constitution or statute.” In the absence of contrary law on the books, the Secretary would be legally required to comply.
In the alternative, the Secretary could make this change of his own accord, in line with his mission of maximizing the efficacy of our nation’s armed forces.
Whether or not there is an official act prompting it, the secretary of defense effectuates the desired change by issuing a memorandum or guidance to the secretaries of each service branch instructing them to adhere to this new policy by issuing amendments to the branch’s internal regulations. Under 10 U.S.C. § 131(d):
The Secretary of each military department, and the civilian employees and members of the armed forces under the jurisdiction of the Secretary, shall cooperate fully with personnel of the Office of the Secretary of Defense to achieve efficient administration of the Department of Defense and to carry out effectively the authority, direction, and control of the Secretary of Defense.
So if the secretary of defense orders the change, the secretaries of each service branch must by law fall in line. So far, we have seen nothing to suggest the fall of the necessary domino — guidance from the secretary’s office — in this very specific chain of events required to implement the president’s wishes. And Dunford’s letter indicates that we shouldn’t expect anything to happen unless Trump elaborates further. Tweets alone won’t do the job.
An historical perspective
Past processes by which the U.S. government expanded the armed forces to include African Americans and women help further explain the framework by which presidents have put into place shifts in military personnel policy.
Although African Americans have served in the United States military since Crispus Attucks and the Revolutionary War, African-American troops were segregated from white troops for the first 150 years of U.S. history. And they were subjected to second-class treatment within these segregated silos. For example, a 1941 study by Robert P. Patterson, then under secretary of war, concluded that the Army Air Corps (the Air Force’s precursor) deliberately delayed training black soldiers.
President Franklin D. Roosevelt first softened total desegregation by signing Executive Order 8802 in June of 1941, titled “Reaffirming Policy Of Full Participation In The Defense Program By All Persons, Regardless Of Race, Creed, Color, Or National Origin, And Directing Certain Action In Furtherance Of Said Policy.” When the Order failed to eradicate discrimination in the armed forces, civil rights leaders like A. Philip Randolph and the Committee against Jim Crow in Military Service and Training (later renamed the League for Non-Violent Civil Disobedience Against Military Segregation) pushed for an explicit and total end to segregation in the military.
President Harry Truman ultimately followed through on desegregating the military, but not without first priming the country and its political leaders for the change. On February 2, 1948, Truman sent a message to Congress: “Under the authority of existing law, the Executive branch is taking every possible action to improve the enforcement of the civil rights statutes and to eliminate discrimination … in the armed forces.” To this end, he continued, “I have instructed the Secretary of Defense to take steps to have the remaining instances of discrimination in the armed services eliminated as rapidly as possible. The personnel policies and practices of all the services in this regard will be made consistent.”
Nearly six months later, after his military leaders had begun preparing for integration, Truman signed Executive Order 9981. Because there was no contrary legal provision in force, he was able to declare by executive decree: “It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion, or national origin.”
And even then the work was far from done. The President’s Committee on Equality of Treatment and Opportunity in the Armed Services under the newly formed Personnel Policy Board drafted new regulations for integration in March of 1949. The Truman Library writes that on April 1, 1949:
Secretary of Defense Louis Johnson issue[d] a directive to the Secretaries of the Army, the Navy, and the Air Force which says it is the Department of Defense’s policy that there should be equality of treatment and opportunity for all in the armed services, and that “qualified Negro personnel shall be assigned to fill any type of position… without regard to race.”
The secretary of defense had approved the Air Force’s and Navy’s plans by May and June of 1949, respectively. As for the Army’s proposed amendments to its regulations, however, the secretary of defense rejected them for not adequately implementing the desegregation objective. The Secretary also rejected the Army’s second plan. Ultimately, Truman’s secretary of the Army, Kenneth Royall, was forced to resign for refusing to comply with the integration order.
All of these directives only went so far. According to the historian David Nichols, President Dwight Eisenhower did much of the heavy lifting to implement and execute desegregation, taking steps to stop desegregation in military bases, hospitals, and schools. And as late as 1963, Secretary of Defense Robert McNamara issued Directive 5120.36 to bar military decisionmakers from sending business towards facilities that discriminated by race or sex. In all, it took more than two decades it took to fully implement racial integration under a series of carefully executed procedures.
Similarly elaborate procedures were used to expand military service opportunities to women, but they did not originate with an executive order.
Women were first welcomed into the military in 1916. By the Naval War College’s account, the U.S. Naval Act of 1916, also known as the “Big Navy Act,” opened the doors to female enlistment by “us[ing] the term ‘persons’ when referring to recruitment, rather than ‘men.’ As a result, and due to Secretary of the Navy Josephus Daniel’s support, the Navy opened recruitment to women in reserve ranks.”
But women were severely limited in their roles, at first serving exclusively as nurses. Throughout the twentieth century, however, the military made a number of deliberate changes to incrementally grow the number of roles in which women could serve.
In 1988, as women crept closer to combat-oriented service, the Defense Department, following the recommendation of a task force studying the issue, issued a “Risk Rule.” As described by the Government Accountability Office, the rule “excluded women from noncombat units or missions if the risks of exposure to direct combat, hostile fire, or capture were equal to or greater than the risk in the combat units they supported. Each service used its own mission requirements and the Risk Rule to evaluate whether a noncombat position should be open or closed to women.”
By the mid-1990s, the piecemeal system had been proved unworkable by Operation Desert Storm, where nearly all troops faced risk of hostilities. Seeking a more viable alternative, Secretary of Defense Les Aspin issued a memorandum outlining a more limited ban on women serving in “units engaged in direct combat on the ground, assignments where physical requirements are prohibitive and assignments where the costs of appropriate berthing and privacy arrangements are prohibitive.” Women were also barred from serving in units that “doctrinally required [women] to physically locate and remain with direct ground combat units” and those that were too physically demanding for women. Subsequently, each branch promulgated regulations for their services that adopted this policy.
Those rules held until January 2013. At that point, as I’ve previously written on Lawfare:
Secretary of Defense Leon Panetta and Chairman of the Joint Chiefs of Staff General Martin Dempsey issued a joint memorandum that “rescinded effective immediately” a 1994 rule that barred women from serving in roles that “engage[d] in direct combat on the ground.”
Panetta’s successor, Defense Secretary Ash Carter, executed Secretary Panetta and Chairman Dempsey’s plan to remove the restrictions on women’s participation in combat roles across the services [in 2015].
This execution came in the form of a memorandum Carter sent to military leaders entitled, “Implementation Guidance for the Full Integration of Women in the Armed Forces.” Thereafter, as described above, each branch issued its own guidance. (For example, here are the Army and Army National Guard issuances).
Thus, in contrast with the movement toward racial integration, these major changes in gender-based military personnel policy did not begin with an executive order mandating the change. But it is abundantly clear from the historical record that the Pentagon and the White House worked together on the policy change. For example, consider President Barack Obama’s official remarks in support of the policy change on the day of Carter’s announcement,
Note, at the outset, that any attempt on Trump’s part to actually effectuate a ban on transgender people serving in the military would be different from past examples in that it would, for the first time, require reversing measures already put in place to make the military more inclusive.
At the tail end of the Obama administration, some steps were taken to extend protections to transgender people by way of the same deliberate process used in past cases. On June 30, 2016, then-Secretary of Defense Carter announced that transgender people would be able to serve openly in the military in a memorandum directing the completion of such inclusion by June 30, 2017. Carter’s memo explicitly instructed the secretaries of the military departments to “[d]raft revisions to the issuances identified, and, as necessary and appropriate, draft new issuances, consistent with the policies and procedures in this memorandum.”
After consulting with the service chiefs and secretaries, I have determined that it is necessary to defer the start of accessions for six months. … We will use this additional time to evaluate more carefully the impact of such accessions on readiness and lethality.
That said, even if this statement should be construed as Mattis wavering on fully implementing the policy outlined by Carter, he did not officially rescind Carter’s directive, meaning the secretaries of the various service branches are still required to issue new regulations by the new deadline.
We don’t know if Mattis will follow the necessary procedure to enact Trump’s tweeted promise to ban transgender people from military service, or if the president will order him to do so. The way the military opened up women’s roles in combat sets precedent for the proposition that an executive order is not a prerequisite to changing personnel policy. But this much is clear: Unless Congress acts to legislatively protect transgender people’s right to serve, the president can order the secretary to follow his wishes, and the secretary could risk being fired if he refuses to comply. Alternatively, Mattis could act pursuant to his own authority to make such a change and appease the commander-in-chief.
Photo credit: ALEX WONG/Getty Images