An expert on military readiness is warning that the Department of Justice’s decision not to go directly to the U.S. Supreme Court in the dispute over transgenders in the ranks “allowed judges to run the military,” which violated the U.S. Constitution.
Lower courts affirmed the Obama administration policy of allowing transgender recruits in the U.S. military. But the Department of Justice then failed to appeal to the U.S. Supreme Court, setting a bad precedent, contends Elaine Donnelly, president of the Center for Military Readiness.
Donnelly argued Chief Justice John Roberts also could have stayed the injunctions temporarily and referred the matter to the full court for an expedited briefing.
“It would be reasonable to expect that Justice Roberts would be inclined to grant the stay on basic separation of powers issues, but there is no way to know for sure,” Donnelly said.
“We do know that failure to petition for a stay has abdicated presidential authority, and allowed judges to run the military,” she said.
“Absent intervention, nothing stands in the way of future activist judges issuing orders on any national defense issue, especially lawsuits demanding liberal interpretations of ‘social justice.'”
The dispute dates back to Obama’s overturning of centuries of precedent by ordering that transgenders be allowed to enlist.
President Trump reversed the order, but transgender activists went to court in several jurisdictions where judges ruled that while Obama was allowed to make the change, President Trump didn’t have the authority to reverse it.
One such judge was Colleen Kollar-Kotelly, and WND reported she faced criticism for acting as the “supreme judicial commander of the military” by refusing to temporarily halt her order against Trump’s decision.
Donnelly said the government then failed to appeal to the Supreme Court, citing the fact that a study was under way and the results were expected in February.
An anonymous DOJ official told Reuters that because the Defense Department has set up a study to review the issue and make recommendations, “Rather than litigate this interim appeal before that occurs, the administration has decided to wait for the DoD’s study and continue to defend the president’s lawful authority in district court in the meantime.”
However, Donnelly, pointed out that, under the U.S. Constitution, federal judges have no power to run the military.
“Nevertheless, four U.S. District judges have ordered the Department of Defense (DoD) to ignore official instructions from President Donald J. Trump, and to fully implement unprecedented mandates to recruit transgenders into the military,” she wrote.
The effective date was Jan. 1.
“By failing to petition the Supreme Court to stay the lower court orders, the DOJ has tacitly conceded that federal judges can make military policy and establish medical standards for enlistments,” Donnelly explained.
She said if transgenders are allowed in the military, those driven by the social agenda “will focus only on the satisfaction of persons who are being allowed to serve despite a psychological condition that – until the Obama administration came along ˗˗ used to be among many physical or psychological problems that disqualified individuals for military service.”
It also sets precedent for courts, Donnelly wrote: “The district courts’ orders do not just preserve the status quo as preliminary injunctions are supposed to do. Rather, these judges ordered the Department of Defense to implement a policy decision made by a former President in spite of the current commander-in-chief’s decision to retain the actual status quo until he and his staff had the opportunity to study the issue.”
She said the president needs to take appropriate action to remove LGBT activism from the military and hold decision-makers accountable.
“The administration cannot tolerate more mistakes that help the LGBT faction and activist judges to control Pentagon policies, without a fight.”
She pointed out Obama also had forced “military commanders and medical personnel to approve or provide hormone treatments or surgical operations that do not change gender-determining human DNA or reduce psychological risks, regardless of their own convictions or concerns about medical ethics.”
The requirements “detract from readiness, deployability and morale.”
“The issue here is not civil rights; it is combat lethality and the armed forces’ readiness to defend America,” CMR said.