Trump, Bypassing Lower Courts, Asks Supremes To Reinstate His Ban On Trans Soldiers

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Kevin Daley Supreme Court correspondent
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Government lawyers asked the U.S. Supreme Court to reimpose President Donald Trump’s ban on transgender servicemen in the military Friday, even as federal appeals courts in Washington, D.C., and California are still considering the matter.

Friday’s filing is the latest in a series of high-profile cases in which the government has bypassed normal judicial procedure and taken petitions directly to the high court.

“The district court in this case entered a nationwide preliminary injunction nullifying that exercise of professional military judgment and blocking the implementation of a policy that the secretary has deemed necessary to ‘place the Department of Defense in the strongest position to protect the American people, to fight and win America’s wars, and to ensure the survival and success of our service members around the world,'” the petition said.

The unusual filing is called a petition for certiorari before judgment, meaning that the government would like the Supreme Court to hear the case even though the lower courts of appeal have not yet issued their decisions.

In recent weeks the administration has filed petitions for cert before judgment in cases concerning the citizenship question on the 2020 census questionnaire and termination of the Deferred Action for Childhood Arrivals (DACA) program.

The dispute was set off when Trump abruptly announced on Twitter that trans people could no longer serve in the military. Former Defense Secretary Ashton Carter had provided for trans soldiers to openly serve in June 2016.

The policies were immediately challenged in court. A federal trial judge in Washington state issued an injunction barring enforcement of the ban, as did judges in Maryland and Washington, D.C. Those cases are now pending before the 9th U.S. Circuit Court of Appeals and the U.S. Court of Appeals for the D.C. Circuit. (RELATED: In Rare Statement, Chief Justice Rebukes Trump’s Rhetoric On The Judiciary)

The plaintiffs challenging the ban allege a variety of constitutional violations. They say Trump’s order violates the equal protection and due process guarantees and well as the First Amendment.

Lambda Legal, which is litigating the Washington state case, said the government’s rush to the Supreme Court is highly revealing.

“It seems the Trump administration can’t wait to discriminate,” Lambda Legal counsel Peter Renn said. “Yet again, the Trump administration flouts established norms and procedures. There is no valid reason to jump the line now and seek U.S. Supreme Court review before the appellate courts have even ruled on the preliminary issues before them.”

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