This past June, the Department of Defense announced a six-month delay on enlistments for transgender individuals, but imposed no restrictions on those already serving. Associated Press, Pentagon OKs 6-month delay in transgendered enlistments, 1 Jul 17.

Apparently dissatisfied with that policy, in July, the President used Twitter to send out this early-morning message:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming 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), 26 Jul 17, 5:55-6:08 a.m., Tweet 1, Tweet 2Tweet 3.

The Department of Defense’s response to this three sentence missive by the Commander in Chief came the next morning when the Chairman of the Joint Chiefs of Staff released a letter, shared with multiple media outlets, asserting, some might say defiantly:

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.

Barbara Starr (barbarastarrcnn), CNN Pentagon Correspondent, 27 Jul 17, 7:59 a.m., Tweet; Indrees Ali (@indreesali114), Reuters Foreign Policy Correspondent, 27 Jul 17, 7:46 a.m., Tweet 1, Tweet 2.

In August, the White House followed up with a written memorandum ordering the Department of Defense to continue barring new enlistments of transgender individuals beyond 1 Jan 18 (the date the Department’s own delay was due to expire), while putting off until March 2018 the question of whether transgender individuals already in the service may continue serving. Presidential Memorandum for the Secretary of Defense and Secretary of Homeland Security, 25 Aug 17.

This order, the Department of Defense accepted. Memorandum: Military Service by Transgender Individuals – Interim Guidance, 14 Sep 17. However, the United States District Court for the District of Columbia found it wanting as regards the key provisions of the President’s memorandum, ordering the Department of Defense:

[T]o revert to the status quo with regard to accession and retention that existed before the issuance of the Presidential Memorandum—that is, the retention and accession policies established in the June 30, 2016 Directive-type Memorandum as modified by Secretary of Defense James Mattis on June 30, 2017.

Order, Doe v. Trump, Civil Action no. 17-1597 (D.D.C. 30 Oct 17). The Department of Defense announced in December that it would comply with the Court’s order. Adam Weinstein, DoD To Allow Transgender Enlistments As Courts Tear Apart Trump’s Ban, Task and Purpose, 11 Dec 17.

A new article published by the Harvard Law Review, entitled Tweets on Transgender Military Servicemembers, 131 Harv. L. Rev. 934 (2018), covers these turns of events, and particularly queries why the Department of Defense did not obey the President’s initial Tweeted instructions.

The article first posits that the President’s tweets did not enjoy the force of law because:

For one, the tweets evaded typical processes of accountable, reasoned decisionmaking. . . . [T]he military [expected] a policy of this magnitude to be formulated and rolled out in a traditional process, a process in tension with Twitter’s character limit and thirst for hot takes. The request for formal guidance forced the President to slow down, consult, and justify his decision.

Tweets on Transgender Military Servicemembers at 941-942.

Second, the article posits that the tweets lacked legal force because:

The tweets also subverted legal stability in how they were issued. Consider that President Trump tweets from a personal account, @realDonaldTrump. Communicating binding directives through a personal account on a nongovernmental platform is inconsistent with the principle that executive directives maintain across administrations because they “issue[] from the Office of the Chief Executive.”

Id. at 942.

Finally, the article asserts that the tweets did not take on the imperatum of a command because:

In substance too, the tweets defied our legal system’s commitment to notice. The tweets gave the military little to go on — no particular actions or deadlines. Demanding further guidance promoted public promulgation; it also furthered clarity and a desirable link between the policies announced and those implemented.

Id. at 943.

These reasons all offer a good practical explanation for why the Department of Defense might be reluctant to implement major policy changes with nothing more than the President’s early-morning, three-sentence tweets for guidance.

But, there is another factor the Harvard Law Review has not accounted for, that may be equally important: Presidential authority over the military has historically been exercised by and through subordinate officers, rather than directly. In fact, there is a strident statutory (albeit using archaic terminology) bar on direct Presidential control of military operations:

[A]ll orders and instructions relating to military operations issued by the President or Secretary of War shall be issued through the General of the army, and, in case of his inability, through the next in rank. The General of the army shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said headquarters, except at his own request, without the previous approval of the Senate; and any orders or instructions relating to military operations issued contrary to the requirements of this section shall be null and void; and any officer who shall issue orders or instructions contrary to the provisions of this section shall be deemed guilty of a misdemeanor in office; and any officer of the army who shall transmit, convey, or obey any orders or instructions so issued contrary to the provisions of this section, knowing that such orders were so issued, shall be liable to imprisonment for not less than two nor more than twenty years, upon conviction thereof in any court of competent jurisdiction.

Army Appropriations Act (“Command of the Army Act“), 14 Stat. 485, 486-487 (1867). I can find no indication that this law has been rescinded. However, even if it is functionally unenforceable (it may even be unconstitutional), the existence of such a law evidences a strong cultural preference in our society that a President’s authority over the military ought to pass through a chain of command that issues implementing (and perhaps moderating) directives, rather than via a public Tweet that is not addressed to anyone in particular.


23 Responses to “Scholarship Saturday: How to tell when the President really means it”

  1. Zachary D Spilman says:

    Also, they’re tweets.

  2. Shawn says:

    What Zack said.  A tweet is not policy, has no context, and should not be imbued with meaning.  It’s just a tweet.
    Clearly the military must exclude some, perhaps many.  Service is a privilege, not a right.  But in these interesting times when cis has become unfashionable, in gender, and trans — or even vague — is the new normal, probably there ought to be a billet, perhaps outside the existing service branches, where transgenders can serve with equivalent valor, compensation and benefits.  A CyberCorps, perhaps, or a nonaligned medical corps, just as examples.
    It was only 101 years ago that the first US woman, Loretta Walsh, enlisted openly (although several hundred served in the Civil War, most disguised as men and only unmasked on the battlefield after being killed or wounded).  Women have come a long way since, within our armed forces, and transgenders could also.

  3. Vulture says:

    Shawn.  George Bush suggested something of that nature, and open service, during a state of the union.  2007ish.  It was a one of those things that came and went with a sense that maybe nobody heard it.  A lot of things get said in SOTU addresses, like “Let’s cure cancer.”  But they kind of fade.  In this case the sooner the better.  Separate don’t mean equal.

  4. Concerned Defender says:

    Serious questions and commentary.  Setting aside Trump, or Obama, or Bush, etc.  
    1.  Service is a privilege, not a right, correct?  So, that’s the starting point.  There’s no entitlement to serve, regardless of how much a candidate wants to serve. 
    2.  We must only accept the most qualified, mentally and physically, correct?  I know many people who are disqualified at MEPs or even while in service due to medical reasons (injury, mental illness, etc.).  Folks get DQ’d for being flat footed, failing to conform, fitness issues, mental instability, etc.
    3.  I’m no doctor, but many doctors say that transgenderism is a mental illness, or strong indication of a mental illness.  It’s often termed as gender identity disorder or gender dysphoria and is a technical condition recognized by psychiatrists and found in the DSM and as classified by the World Health Organization (up until 2016, and maybe even now).  Self mutilation is also a sign of mental illness (not talking tattoos here, although that is another interesting analogy – you can’t have tattoos but you can chop off your sex organs!).  Perhaps more needs to be known.  Perhaps it’s only a illness for a % of those transgenders.
    4.  My concern is the continued use of the military as a social experiment to further a NON-MILITARY and NON-NATIONAL DEFENSE agenda.  What is gained militarily, vs at what cost?  Gender reassignment surgeries, medications, and other costs are very significant.  Certainly not insignificant.  Also, the headaches caused for leadership who have to “deal with” unique gender confused persons, and tip-toe around their unique and fragile personalities.  What is the cost/benefit?
    5.  Granted, I am aware of 1 particularly famous ex-SEAL who came out as a transgender.  I dare say that’s far from sufficient evidence to craft national military policy.  One is an anecdote.  Certainly canceled out, by the way, by the 1 named Manning who violated several serious UCMJ laws and went to prison…. 

  5. Vulture says:

    I just got this sense that someone tried to sway my opinion of a group of people by saying that one of them went to jail.  Something like one of that group of people doing well isn’t worth considering because one of them was a really bad person.
    I don’t know that much about being a transgender, or chopping of sex organs, but I just have this urge to want to crush somebodies nuts.

  6. Nathan Freeburg says:

    I think there is a correlation between military entry standards and recruiting goals and a different or inverse correlation between military entry standards and the employment rate.

  7. stewie says:

    “We must only accept the most qualified, mentally and physically, correct?”
    You got in, right?

  8. Adlaw Guy says:

    There is a lot of unnecessary scholarship in play.  The failure to ‘follow’ the order has a lot to do with a fundamental basic of military law.  Article 92 requires two things from an order, it must be understandable and executable.  A lawful order with those two attributes cannot be refused.  This tweet was unclear and therefore not easily understood or in turn capable of execution.  ‘Transgender individual’ has no defined meaning in military policy.  In addition, neither the President nor the Secretary of Defense directly control enlistment into the various services.  Enlistment authority belongs to the Department Secretaries.  See for example 10 USC 504.  The Secretary of Defense controls enlistment and appointment qualification through DoDI 1304.26 and DoDI 6130.03.  The first relates to moral conditions and the second to medical ones.  Prior to the activism under President Obama, transgenderism was only DoD controlled as a medical issue and only when severe enough to warrant gender altering therapy or mental counseling.  The point being that a general ban would require implementing instructions to the many thousands of recruiting officials responsible for initial screening.  The tweets might be seen as a return to status quo or a move to something more restrictive.  This ambiguity required resolution in order to convert the tweet storm into a directive capable of execution.  The tweet was therefore interpreted as an expression of commander’s intent, and not as an order.

  9. Isaac Kennen says:

    Adlaw Guy,

    The tweet was therefore interpreted as an expression of commander’s intent, and not as an order.

    Agree, 100%.  I think the Ivy League scholarship was aimed at addressing the “why” of that observation.  I don’t think that’s wasted or unnecessary scholarship.
    In fact, I think you did a good, and appreciated, little bit of scholarship yourself in trying to come up with a unifying theory for why one Presidential expression carries the force of law while another one can be regarded as mere chatter.  As all good explanations do, your explanation of course spawned more questions, including more “why” questions.  
    First among them would be “why” should Presidential expressions be subjected to what you referred to as “fundamental basics of military law.”  Is it right that the Department of Defense should employ a cannon of construction that differs from those used by other Executive Departments.  Perhaps so, especially given the truth of what you pointed out – the military institution is not purely an Executive branch creature – the Framers made the armed forces as much (if not more) children of the Congress, and not just in terms of budgeting authorities.  Congress is responsible for regulating the armed forces.  Perhaps when the President’s tweets touch on something that arguably is the province of Congress, the DoD ought to demand finality and specificity?  
    In in any case, I think the scholarship is worthy.  The questions are not as clear (at least to me) as they initially appear.

  10. k fischer says:

    How about his latest tweet regarding men’s careers being destroyed over a mere allegation of sexual assault?

    Peoples lives are being shattered and destroyed by a mere allegation. Some are true and some are false. Some are old and some are new. There is no recovery for someone falsely accused – life and career are gone. Is there no such thing any longer as Due Process?

    Congresswoman Jackie Speier certainly disagrees with the tweet, commenting:
    “The new mantra is ‘We believe the women,’ and [Donald Trump] is frozen in ‘I believe the men,’ ” [Rep. Jackie] Speier said in an interview. “He’s beyond rehabilitation in my view.”
    Beginning in 2014, I represented an Officer falsely accused of sexual assault by his wife at a General Court-martial where he was unanimously acquitted of all charges by the panel.  The evidence in favor of his innocence was overwhelming.  But, he never got a BZ look because he was flagged.  He didn’t get his command slot for which he was slated because he was flagged.  His first look occurred right after his acquittal and he was passed over, as well as his second look.  With only 17.5 years in, he was notified that he would be separated, until there was an exception to policy that permitted him to get a third look, where he was passed over again.  Thankfully, he made it to 18.5 years, so he will be permitted to retire.
    How many other Servicemen have faced similar career devastation in the era of “everything goes to trial” because of this new mantra that Congresswoman Speier quotes?  Is it now time to reevaluate whether an accused Serviceman should have his career put on hold for promotion because of a specious allegation where the Article 32 recommended that the charges be dismissed?
    Because the 5th Amendment prohibits the taking of life, liberty, and PROPERTY without due process of law.  Don’t Servicemembers have a property interest in their military retirement?  And, at least Jackie Speier is honest in the new mantra that “we believe the women,” but doesn’t that violate equal protection on it’s face?  Perhaps the Administration should ask SecDef to relook the adverse actions reg in light of this new mantra because some due process should be provided to the falsely accused.

  11. Vulture says:

    Kyle.  Possible answer here.

  12. Concerned Defender says:

    stewie says:
    February 11, 2018 at 1:25 PM  

    “We must only accept the most qualified, mentally and physically, correct?”You got in, right?

    And with that unsolicited personal attack, your credibility hits an unprecedented new low… 
    You’re apparently saying that a person wanting to chop off his **** to become a woman is not mentally deranged and fit for duty, AND that person has more sanity than me for daring to REMIND folks that mental professionals agree that transgenderism IS a mental illness.  (Let’s not ignore that tattoos are forbidden and one can get kicked out for wearing incorrect uniform items, by comparison)
    Do you even have a basis in reality I wonder?  Are you actually an attorney?

  13. Isaac Kennen says:

    This discussion about the merits of allowing transgender people to serve is tangential to the point of Harvard’s article.  That’s just the policy question that introduced the query of whether tweets are an acceptable means of communicating executive orders.
    Still, tangential or not, some assertions bear clarification:
    Concerned Defender said:

    mental professionals agree that transgenderism IS a mental illness

    Here is the American Psychiatric Association’s actual position on the question of whether being transgender is a mental illness:

    It is important to note that gender nonconformity is not in itself a mental disorder. The critical element of gender dysphoria is the presence of clinically significant distress associated with the condition.

  14. Adlaw Guy says:

    Isaac’s point dovetails to my earlier post.  Transgenderism is not a military or medical term.  Transgender individuals usually have related mental health conditions but they do not always have related mental health conditions.  Some are perfectly capable of living happily and productively in either gender.  The application of medical standards alone would not exclude all transgender individuals.  This is in part because the DSM V varies significantly from the DSM IV that the DoD medical standards were based upon.  For this reason it is difficult to return to the exact policy of the past.  Given prevailing medical opinion, it is inevitable that some transgender individuals who lack related medical conditions will be allowed to join.  The only way to avoid that outcome is place a transgender accession restraint in the moral standards of DoDI 1320.04.  Some might find that proper, but I would counsel against it.

  15. stewie says:

    kf, his latest tweet wasn’t some deeply thought consideration about whether or not we’ve achieved the proper balance in our criminal justice system, it was about his defense of his aide that is pretty clearly a wife-beater. Just like Roy Moore. Just like how some of the folks on “both sides” in Charlottesville were “fine people.”

  16. k fischer says:

    Aside from the amount of thought or lack thereof of his tweet, how would the tweet I mentioned tie into his purported expectations towards sexual assault allegations in the military?  I certainly don’t think the tweet is an order, but let’s say US v. Airman Brandon Wright occurred today and Major General Franklin dismissed charges, then was being considered for Space Command. (I know it was Susan Helms, but this is my hypo).  Could Major General Franklin tell Senators McCaskill and Gillibrand that he followed the tweet of his Commander in Chief and enforcing due process on a person whom he believed innocent, so his life would not be ruined?  And, if they put the kibosh on his promotion or appointment, then would that be gender discrimination? 
    I’m surprised that the author did not draw a loose correlation between the President’s tweets and non-binding “Sense of Congress” provisions.  Because that would have been a great point to make in the article.
    But to digress about the President’s tweets away from the article, I would agree that many (by “many,” I mean “most”) of the President’s tweets betray the idea that they were typed in deep thoughtfulness.  However, the one I mentioned above did not reference gender, but rather “people.”  And it provided a return to the lofty goal of due process before one’s life is ruined and IMO was correct, regardless of the amount of thought put into it.  I would agree that a picture of the wife with a black eye and police report would be pretty good evidence of domestic abuse.  Perhaps, that is who he was referring to as “some are true” (although I believe he specifically mentioned Porter as denying the allegations)  But, I find Sorenson’s allegation that he was actually the victim of a physically abusive wife one that perhaps needed a deeper look, i.e. “some are false.”  Of course, POTUS disappointingly accepted both resignations because certainly that’s the most politically expedient thing to do, isn’t it?   
    But, does this tweet indicate that the adverse action regulation be changed to allow an accused being accused of sexual assault to be promoted while he is awaiting due process of the GCM?  Since everything Article 120 appears to be going to a GCM with no real preliminary hearing, should we add a finding to the findings worksheet that permits the panel to find the Accused “Innocent, beyond a reasonable doubt” and not merely “Not Guilty” in order to clear his name?

  17. stewie says:

    I think the tweet indicates he’s more for the accused than the accuser, unless the accused has a last name of Clinton. He certainly believed the accuser wholeheartedly then, not so much since (i.e. not once), including his own.

  18. Vulture says:

    From the stand point of the President, and given today’s climate, he should probably be more careful what he tweets.  Think about the effect of a Hawaii state employee pushing that button that sent out an incoming attack alert.  People see these messages and take action accordingly.  That is not to say that I think that LGBT people are dangerous like a nuclear attack.  It is simply a case of rudimentary communication.  Sender, message, medium, receiver, and interpretation.  Consider the implications of:
    1.  “The British are coming!”
    2.  “Watson, come here.”
    3.  “Climb Mount Niitaka.”
    The messages get shorter but the effects become more profound.
    disclaimer: My basic branch is 25 series.

  19. Concerned Defender says:

    stewie says:
    February 13, 2018 at 9:06 AM  

    kf, his latest tweet wasn’t some deeply thought consideration about whether or not we’ve achieved the proper balance in our criminal justice system, it was about his defense of his aide that is pretty clearly a wife-beater. Just like Roy Moore. Just like how some of the folks on “both sides” in Charlottesville were “fine people.”

    Once again the ignorance of the Never-Trumpers is on full display and is something staggering to behold.  Ignore facts and reality and create your own world, putting words in his mouth or purposefully and entirely dishonestly twisting and fabricating statements to fit your pathetic agenda.
    Contrast the above (as usual) entirely wrong and uninformed anti-Trump opinion against the facts.  
    Here was the Trump tweet, which expressly and generically recognizes the issues.  

    Peoples lives are being shattered and destroyed by a mere allegation. Some are true and some are false. Some are old and some are new. There is no recovery for someone falsely accused – life and career are gone. Is there no such thing any longer as Due Process?

    Now back to the discussion… 
    DSM V is a radical (and recent) change from the history of the world view on transgenderism.  Perhaps our ever-growing liberal value-less culture with a 5 second attention span has (for political reasons no doubt) cast aside global medical diagnosis history.  Regardless, since it’s actually IN the DSM, then some folks with gender dysphoria or whatever the trendy non-discriminatory term is now, it is a mental illness indication and there’s a term for it.  Too risky to let them in, no need to let them in.  Cost/benefit analysis.  Costs far outweigh the marginal (if any) benefit.  So few are going to desire service, and so few are going to meet fitness standards anyway, why craft out an entire policy for a trivial % of folks who may be otherwise DQ’d?

  20. Christian Deichert says:

    @Concerned Defender:
    Since I’ve actually had to do my homework on gender dysphoria, back when PVT Manning’s Article 138 complaints came across my desk via the PCF at Fort Sill, I feel obligated to point out that your opinion on this topic seems based on some factual misunderstandings of what it is, how it works, and how it’s treated.
    You wrote:

    DSM V is a radical (and recent) change from the history of the world view on transgenderism.  Perhaps our ever-growing liberal value-less culture with a 5 second attention span has (for political reasons no doubt) cast aside global medical diagnosis history.  Regardless, since it’s actually IN the DSM, then some folks with gender dysphoria or whatever the trendy non-discriminatory term is now, it is a mental illness indication and there’s a term for it.  Too risky to let them in, no need to let them in.

    First, it’s DSM-5.  The APA changed the designation on purpose, as they recognized that these manuals can’t be set in stone and revisions should be more frequent.  The fact that you’re referring to it via Roman numeral may be an indicator that you haven’t actually read what DSM-5 has to say about gender dysphoria and therefore may still be viewing it through the lenses of the now-obsolete DSM-IV or DSM-III.
    Second, not everything in the DSM is automatically service disqualifying.  See DID Instruction 6130.03 for a list of disorders that are service disqualifying.  I’ll save you the homework and let you know that gender dysphoria is not automatically disqualifying, or even specifically mentioned, though it could be characterized by a doc, depending on the situation, as an “other mental disorder[] . . . that, in the opinion of the civilian or military medical examiner, shall interfere with or prevent satisfactory performance of military duty.”  (DODI 6103.03, Encl. 4, para. 29t)
    Third, your earlier comment demonstrates a fundamental lack of understanding of both gender dysphoria and its treatment.
    You wrote:

    You’re apparently saying that a person wanting to chop off his **** to become a woman is not mentally deranged and fit for duty, AND that person has more sanity than me for daring to REMIND folks that mental professionals agree that transgenderism IS a mental illness.

    That’s not how it works.  There are three potential, incremental phases for treatment for gender dysphoria, in addition to therapy.  The first is real life experience: a person holds themselves out as their preferred gender, including adopting the wardrobe and cosmetic appearance of that gender.  Second is hormone therapy.  Third is gender reassignment surgery. 
    However, a diagnosis of gender dysphoria is not an automatic prescription for penile removal.  Some transgender individuals have stabilized through therapy and real life experience alone.  Others never go beyond hormone therapy.  Gender reassignment surgery happens only in a minority of cases.
    You’re entitled to your own opinions, but I would encourage you to do more to ensure that such opinions are more substantially based on facts.

  21. ashley schaeffer says:

    You are looking at this all wrong.  Let’em serve with or without plums.  Deploy them.  It’s wartime.  Drop them behind enemy lines and let them show the world how fabulous they are.  If they prove it, then we win the war.  If they don’t, then problem solved.  Win-win.
    What about how the military unfairly fat shames?  There is a horrific discrimination against people of size going into the military.  Why? Once again.  Looking at it all wrong.  You people should want obese people who can shoot.  When they get shot, their large bodies make great cover for hasty fighting positions, you know, like the cows in ‘Saving Private Ryan.’
    Make me Commanding General on the great island nation of South Korea, and Kim Jung Un will surely surrender.

  22. stewie says:

    It never ceases to amaze how animated certain folks get about someone else’s personal sexuality/gender issues.
    And Ashley, someone who is too fat can’t perform the mission, there is zero evidence that someone who has a preference for a gender that doesn’t conform with some societal expectations cannot perform the mission.
    If a Transgendered Soldier cannot pass the APFT or gets too fat to pass height/weight, guess what happens? They gone too.

  23. Philip D. Cave says:
    The Fourth on tweets.