Scholarship Saturday: How to tell when the President really means it

By Isaac Kennen

Scholarship Editor
www.caaflog.org

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 2, Tweet 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 Recent Social Media Posts: Executive Power - Presidential Directives - In Tweets, President Purport to Ban Transgender 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.

Recent Social media Posts 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.

- Originally published on February 3, 2018 on www.caaflog.com. Preserved by archive.org, here. In the CAAFlog archive, without attribution, here.