National Security Leaders To Trump: Uphold CINC’s Authority, Make ‘Conditional Accessions’ For Transgender Recruits

December 31, 2017

For more information, contact: Maya Carlin, email:, office phone: (202) 719-2420. Cell phone: (516) 319-3395


(Washington, D.C.): By the end of the day, President Trump’s powers as Commander-in-Chief under Article II of the U.S. Constitution will either have been preserved or gravely diminished. The implications of the choice – both for the armed forces and for the national security – can hardly be exaggerated.

At issue is whether the President of the United States will continue to be responsible for the composition, readiness and disposition of the U.S. military, or whether federal judges will be allowed to have the final say on such matters.

The question is being framed in the context of President Trump’s August 25th directive to preclude the recruitment of transgender individuals by the Pentagon’s services and the Department of Homeland Security’s Coast Guard. But the repercussions of the judicial branch countermanding that direct order from the one individual constitutionally empowered to issue it cannot be overstated.

If Donald Trump accedes to the precedent that judges – not the Commander-in-Chief – can determine who will serve in the U.S. armed forces, they will presumably in the future also assert the right to dictate what those they allow in will do, or not do, while in uniform. For example, injunctions might be issued if troops don’t want to go to war or otherwise be put in harm’s way. This is, of course, a formula for completely breaking the only military we have.

Consequently, on December 21st, former Attorney General Edwin Meese, former Commander-in-Chief Pacific Fleet Admiral James “Ace” Lyons, former Deputy Under Secretary of Defense for Intelligence Lt. Gen. William “Jerry” Boykin, former Assistant Air Force Chief of Staff Lt. Gen. Thomas McInerney, former Assistant Secretary of Defense (acting) Frank Gaffney and former member of the Presidential Commission on the Assignment of Women in the Military Elaine Donnelly wrote President Trump. In the attached letter, they urged him to seek a stay of the lower court rulings from the Supreme Court and, in the absence of such a stay, to issue a new directive to the Pentagon and DHS. (A draft they supplied of such a directive is also attached.)

The proposed directive would make the court-ordered recruitment of self-described transgender individuals subject to a “conditional accession” in light of the ongoing dispute over whether they can be enlisted at all. Such a status would afford an opportunity for the government to resolve that dispute before assuming the responsibility to provide them with expensive medical treatments and other accommodations that may prove to be unjustified constitutionally.

Mr. Gaffney, who currently serves as the President of the Center for Security Policy, observed:

President Trump has a responsibility to our armed forces and to the Nation to protect the powers vested in him as Commander-in-Chief. Just as “hard cases make bad law,” the decision to do so in the context of the transgenders in the military issue may obscure what is fundamentally at stake. But it is his sworn duty to “preserve, protect and defend the Constitution.” To do so in this instance, he must use whatever tools are available to him to prevent federal judges from countermanding his direct orders to those below him in the chain of command – including by seeking a Supreme Court stay with respect to this instance of reckless judicial overreach and, failing that, by requiring that any transgender individuals enlisted until the matter is resolved be given a conditional accession.

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Click here for a PDF of the Joint Letter to the President

Click here for a PDF of the Draft Presidential Directive Memorandum