In the aftermath of President Trump revoking the Obama policy of allowing transgenders to serve in the Armed Forces, six Republicans have publicly criticized the decision: AZ Senator John McCain; Iowa Senator Jodi Ernst; Alabama Senator Richard Shelby; Utah Senator Orrin Hatch; Florida Representative Ileana Ros-Lehtinen; and New Jersey Representative Frank LoBiondo. This is why it matters:
Still with me?
The blank space is there because it doesn’t matter that six Republicans oppose the policy.
The military is mentioned in two places in the US Constitution. In Article 1, Section 8, Congress is given certain powers:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
And in Article 2, Section 2, certain powers are given to the president:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
The modern presidency exercises the role of commander-in-chief via the secretary of defense. Though the relationship between presidents and defense secretaries vary, what doesn’t vary is the authority of the president. The president is not a “first among equals.” He doesn’t have to ask permission of the defense secretary. In fact, since the Goldwater–Nichols Department of Defense Reorganization Act (1986) the president has been free to exercise command without consulting the secretary of defense:
(b) Chain of Command.—Unless otherwise directed by the President [my italics], the chain of command to a unified or specified combatant command runs—
(1) from the President to the Secretary of Defense; and
(2) from the Secretary of Defense to the commander of the combatant command.
In no case is the president required to get the permission of the secretary of defense to direct the military to do something that is colorably legal. He doesn’t have to issue an Executive Order. He doesn’t have to put anything in writing. It is a command relationship. Fifty-plus cruise missiles hit Syria without a written order from the White House, this regulation is no more sacrosanct.
The transgender issue is governed by policy, not by law. Until June of 2016, transgenders were not allowed to serve in the military. All Trump did this morning was return us to status quo ante. While his tweets were probably not lawful orders, any subsequent communication–written or verbal–would have been more than adequate to put DoD to work executing the policy.
Does Congress even have a role?
It depends. Congress is allowed “[t]o make Rules for the Government and Regulation of the land and naval Forces.” In the past it has interjected itself into military accessions on rare occasions. For instance, Mental Category V personnel (known to Army recruiters as ‘rocks with lips’) are not allowed to enlist by law and the death of the Sullivan brothers resulted in a law that protects sole surviving children and forbids siblings from serving on the same ship. The major personnel management decisions in the modern military–desegregation, permitting women to serve in combat units, and establishing and ending the “don’t ask, don’t tell” policy–all came from presidential action. Congress can certainly advise. Should Congress decide that it wishes to impose its judgment on the issue, or, if you prefer, disagree with Trump’s judgment, it can do so. But it will take a bill passed by both the House and the Senate and signed by the President–or, alternatively, they must override his veto–to do this.
If Congress was torqued but didn’t have enough votes to override a veto it has other tools. Every officer, from second lieutenant to four-star general, must get Senate confirmation for commissioning and for each promotion. General officers have to get Senate approval to change positions. When the Navy wished to promote the commander of the USS Cole over the wishes of Virginia Senator John Warner, Warner refused to allow any Navy promotions from that list until the offending name was removed. Note the process. Warner couldn’t tell the Navy not to nominate an officer for promotion, and he couldn’t strike an officer from the list, but he could refuse to act upon the entire list. Likewise, back during the “Tailhook Scandal,” naval aviators named in the investigation were pulled from promotion lists under threat of the Senate refusing to consider the entire list. They can even hold up funding to attempt to force Trump to reconsider. In 1875, the Army went for an entire year with no pay because of an impasse over ending Reconstruction.
There is ample reason to argue the wisdom of the process used to make this decision–as a former member of the Army Staff, it makes me queasy–or, if you are inclined, the decision itself. Wisdom is not the same as legal authority. Trump has unquestioned authority, under Title 10 US Code, to issue verbal orders to the Defense Department to change a regulation. He doesn’t need any further permission or consultation. Congress has the ability to disagree with that decision via legislation or coercion. But John McCain’s or Richard Shelby’s opinion on the subject has just about the same weight as mine.