November 26, 2018
When the framers drafted the Constitution, they didn't put a committee in charge of the military. They wanted a civilian leader who could make quick decisions with the trust of the people. After some debate, they settled on the president. And for 228 years, that was just fine with liberals. Now suddenly, things have changed. With the election of Donald Trump, the Left doesn't want the commander-in-chief running the military. They want the courts to.
In a world that was made even more dangerous and volatile by the failed foreign policy of the Obama administration, the worst thing we could do as a nation is make it harder for the military to do its job. And yet, that's exactly what some people are attempting in this attack on the president's authority as commander-in-chief. As the head of our armed forces, the president has to be able to act and lead on the information he has. Imagine the absurdity of telling this president -- or any president -- that he can't respond to a threat or solve a defense problem without checking with the courts first.
That's what this commander-in-chief tried to do more than a year ago by rolling back transgender extremism in the ranks. After eight years of social experimentation, President Trump saw that damage Barack Obama's policies were doing to the military. Political correctness, he knew, couldn't win wars. Only a unified force -- free from distractions like this one -- would. So, in July of 2017, President Trump announced that, after consulting military leaders, he was reverting the military's policy back to what it had always been.
It should have been a simple, straight-forward decision. After all, the same executive power that gave Obama the authority to change the policy gives President Trump the ability to change it back. People could disagree – and some did – about the wisdom of keeping people who identify as transgender from the ranks. But in the end, the buck (including the $3.7 billion bucks Obama's agenda would have cost) stopped with Trump. Precedent was on Trump's side, along with research and active-duty troop support. Most importantly, the Constitution was on his side.
LGBT activists disagreed and filed suit. Now, a full year and a half later, the policy still hasn't taken effect -- which, as anyone with a basic knowledge of Article II will tell you, is inexcusable. The president doesn't need a permission slip from the courts to command the military -- a point the Justice Department made quite clear last Friday. Frustrated by judges who think they have more of a say in our military than the president leading it, Solicitor General Noel Francisco is asking the U.S. Supreme Court to do something quite rare: intervene. Instead of waiting on appellate judges (which could take years), the DOJ is hoping the justices will agree to bypass the circuit courts and decide the issue themselves.
Breitbart's Ken Klukowski explains that the request is unusual but not unprecedented. "Federal law and Supreme Court rule 11 give the justices jurisdiction over a case at any point after it is first docketed with the appellate court." At this point, the other side has already spent more months fighting Trump's policy than Obama's was officially in effect. Why waste more taxpayer time and money on an issue of presidential power that's been settled since 1789? In DOJ's petition, Francisco points out, "'the military has been forced to maintain that prior policy for nearly a year' despite a determination by Mattis and a panel of experts that the 'prior policy, adopted by [Defense Secretary Ash Carter], posed too great a risk to military effectiveness and lethality.'"
"To assemble a military of qualified, effective, and able-bodied persons, the Department of Defense [DOD] has traditionally set demanding standards for military service," the DOJ explains. "Given the unique mental and emotional stresses of military service, a history of most mental health conditions and disorders is automatically disqualifying."
The situation is even more frustrating, Ken points out, since liberal judges have been unusually harsh with their injunctions. "Historically," he writes, "district courts would render relief only for the parties in the case before them, or at minimum would often stay broad decisions while the government takes the case up on appeal." Instead, the courts' activists are using this as an excuse to put the brakes on entire federal policies, nationwide.
House Speaker-hopeful Nancy Pelosi (D-Calif.), meanwhile, called the president's decision to try to fast-track the case "cowardly." As usual, she's wrong. Few things take more guts than standing up to liberal extremists and doing what's in the best interest of America's security and our men and women in uniform. We should all applaud the Trump administration for pursuing the kind of justice that keeps our military strong and our country safe.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.