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The D.C. Circuit’s transgender ruling unconstitutionally usurps the Commander-in-Chief.
A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled Monday that the Pentagon’s policy barring individuals with gender dysphoria from military service likely violates the Constitution. In Talbott v. United States, the majority found the policy — issued under President Trump’s executive order and implemented by Defense Secretary Pete Hegseth — appears driven by “the bare desire to harm a politically unpopular group.” The court upheld a preliminary injunction protecting current transgender servicemembers from removal while allowing the ban on new accessions.
This is not constitutional adjudication. It is judicial legislation dressed in equal-protection robes, and it represents another dangerous step by federal courts outside the bounds of their authority and into the core constitutional domain of the political branches.
The Constitution is unambiguous. Article II, Section 2 declares that the President “shall be Commander in Chief of the Army and Navy of the United States.” Article I, Section 8 grants Congress the power “to raise and support Armies” and “to provide and maintain a Navy,” along with the authority “to make Rules for the Government and Regulation of the land and naval Forces.” Nowhere does the Constitution grant federal judges any role in setting military standards, determining fitness for service, or second-guessing the professional judgment of military leaders on unit cohesion, readiness, lethality, or medical qualifications
Military service is not a constitutional right. It is a privilege extended by the political branches to those who meet the exacting standards required to defend the nation. The military’s job is to win wars, not to serve as a laboratory for social experimentation or a vehicle for judicial policy preferences.
Consider the implications. Suppose, God forbid, another American embassy is seized, or a crisis erupts in the Taiwan Strait. The President, as Commander in Chief, orders the USS Ronald Reagan to get underway from San Diego Bay immediately. A federal district judge — perhaps the same one who believes military personnel policy is subject to his equal-protection analysis — issues an order prohibiting the carrier from sailing because he disagrees with some aspect of the deployment or the underlying personnel standards. Does the President obey that order?
He should not. The President’s oath is to the Constitution, not to every judicial edict that intrudes upon his core Article II responsibilities. It is not owed to the policy preferences of 677 federal district judges with no military expertise, nor to the second-guessing of 13 courts of appeals that possess neither constitutional authority nor institutional competence over military command decisions. When national security and the direction of the armed forces are at stake, the executive branch has both the authority and the solemn duty to act.
Abraham Lincoln understood this principle during the Civil War. In Ex parte Merryman (1861), Chief Justice Roger Taney, sitting as a circuit judge, issued a writ of habeas corpus demanding the production of John Merryman, a Confederate sympathizer arrested by military authorities in Maryland. Lincoln’s administration refused to comply. Lincoln had suspended the writ along key rail lines to protect the capital, and he treated the matter as one of military necessity outside the ordinary reach of the civilian courts. Taney’s order was ignored. The courts do not command the Army or Navy.