Before most presidents announce a significant policy change, they spend some time studying the problem. They consult with outside experts and various stakeholders concerned about the issue. They seek the input of senior advisers, who themselves seek input from a team of researchers and policy experts.
Donald Trump, by contrast, is more inclined to simply announce a major policy shift on Twitter.
This lack of concern with the intricacies of policymaking bit Trump hard on Monday. In a 76-page opinion, a federal district court in Washington, D.C. halted Trump’s attempt to ban transgender individuals from serving in the military — a ban which Trump announced on Twitter without informing senior military leaders. The case is Doe v. Trump.
Judge Colleen Kollar-Kotelly’s opinion is significant for several reasons, including the fact that it holds that courts should treat all government discrimination against transgender individuals with a great deal of skepticism. One of Judge Kollar-Kotelly’s most significant conclusions, however, is that she does not owe much deference to Trump’s judgment thanks to the slipshod way that Trump decided to implement the ban.
Trump’s strongest legal argument rests on Rostker v. Goldberg, a 1981 Supreme Court decision upholding gender discrimination by the Selective Service System. Though such discrimination is typically unconstitutional, the issue presented by Rostker arose “in the context of Congress’ authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference.”
As Justice William Rehnquist explained in Rostker, courts lack competence to evaluate “the complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force.” So they typically should defer to the judgments of the executive and legislative branches.
Yet, according to Judge Kollar-Kotelly, Rostker does not require her to defer to Trump’s trans ban, largely because Rostker presumes that policymakers will actually engage in a serious process.
In Rostker, the Court noted that “Congress did not act unthinkingly or reflexively and not for any considered reason,” when it passed the challenged policy. To the contrary, the Court noted Congress’ “studied choice of one alternative in preference to another,” and relied on the fact that the policy at issue in that case had been “extensively considered by Congress in hearings, floor debate, and in committee.” In other words, Congress had received extensive evidence on the issue, and simply chose one of two competing alternatives. The Supreme Court found that “[t]he District Court was quite wrong in undertaking an independent evaluation of this evidence, rather than adopting an appropriately deferential examination of Congress’ evaluation of that evidence.”
The trans ban, by contrast, “does not appear to be a case where the Court is required to pick sides in a ‘battle of experts.'” Rather, “the record at this stage of the case shows that the reasons offered for categorically excluding transgender individuals were not supported and were in fact contradicted by the only military judgment available at the time.”
In reaching this decision, Judge Kollar-Kotelly notes that she may have reached a different outcome if Trump had followed a more ordinary process before announcing his new policy. If Trump had bothered to study the question in a serious way “and then decided that banning all transgender individuals from serving in the military was beneficial to the various military objectives cited, this would be a different case. But as discussed above, that is not the case before the Court.” Rather “it appears that the rights of a class of individuals were summarily and abruptly revoked for reasons contrary to the only then-available studies.”
Several courts have reached similar a similar conclusion regarding Trump’s Muslim ban — halting the ban largely due to Trump’s incompetence. In the age of Trump, liberty’s greatest shield is Trump’s goonish ineptitude.