In yet another round of breakneck litigation relating to President Donald Trump’s executive actions, a federal judge said Tuesday he simply does not believe the administration is being honest about its motives concerning a contentious policy shift.
The ruling was the latest in a growing trend of cases in which federal courts appear comfortable second-guessing the president’s stated objectives, and conclude nefarious ambitions are afoot behind public and official explanations for new policy.
U.S. District Judge Marvin Garbis of the federal trial court in Maryland issued an injunction Tuesday against President Donald Trump’s proposed ban on transgender military service. The ruling follows an earlier order from a federal court in Washington D.C., which prohibited the administration from stopping trans recruitment and discharging trans service members. Garbis’ order is wider in scope, as it also requires the administration to continue funding gender transition surgeries and medical care associated with gender reassignment.
As in previous cases involving Trump’s executive actions, Garbis abandoned the typically deferential posture afforded to the executive in cases involving national security, immigration, or the military. In litigation concerning the travel ban, federal courts in Hawaii and Maryland, and appeals courts in California and Virginia, declined to confine their review of the policy to the government’s stated rationale as it appeared in the text of the executive orders. Instead, they conducted a more rigorous review, citing Trump’s tweets and campaign statements as evidence of his true motives — anti-Muslim bigotry — while disregarding formal justifications as mere pretense. They further criticized the administration’s invocation of national security powers as an attempt to conceal their true objectives from the judiciary.
Garbis revived this line of criticism in his Tuesday ruling. In defending Trump’s proposed order, the Department of Justice (DOJ) argued that the president’s powers over military personnel decisions are wide and deep. The judge acknowledged as much, before citing an amicus (or “friend-of-the-court”) brief from former defense officials who said Trump’s rule, which was first announced by tweet, was not the result of ordinary process. Therefore, they say, no deference is warranted. Garbis agreed, writing:
Defendants argue that deference is owed to military personnel decisions and to the military’s policymaking process. The court does not disagree. However, the court takes note of the amici of retired military officers and former national security officials, who state “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.”
He then goes on to explain that he found the official memo generated by the administration justifying the ban on trans service members unconvincing. In doing so, Garbis favorably cites a provision of the D.C. district court’s opinion which found that the proposed rule was not motivated by “genuine concerns regarding military efficacy,” a flat rejection of DOJ’s presentations to the court regarding the basis of the order. He writes:
President Trump’s tweets did not emerge from a policy review, nor did the presidential memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the president’s announcement and the departure from normal procedure, the court agrees with the D.C. court that there is sufficient support for plaintiffs’ claims that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”
The sentiment approximates a conclusion U.S. District Judge Derrick Watson of Hawaii reached in a March ruling forbidding enforcement of the second travel ban. As in the trans soldiers case, Watson concluded that the administration was not being forthright about its goals.
“The court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has,” Watson wrote, after deriding the executive order as “full of religious animus,” and “invective.”
Thus far, the Supreme Court has not appeared receptive to the intense scrutiny lower courts have assessed against the administration. The justices lifted injunctions issued against the travel ban in June, a strong sign they would side with Trump should a similar case ever reach argument on the merits. Still, legal challenges to the president’s policies thus far display a fairly shocking dynamic, in which federal judges stop just short of calling government lawyers liars.
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