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Last summer, President Trump purported to ban all transgender individuals from serving in the military via Twitter: “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow . . . Transgender individuals to serve in any capacity in the U.S. military.” In August 2017, the President followed his series of tweets with a Presidential Memorandum that formally dismantled President Obama’s framework to permit transgender individuals to serve openly. These restrictions led to a flurry of lawsuits in federal court. In March 2018, President Trump issued a revised policy that aims to replace the categorical ban with one that is subject to some exceptions, but the lawsuits and the debate over whether the policy is lawful continue.

This essay highlights a critical shortcoming in the current constitutional analysis of the President’s military transgender policy. Part I outlines the constitutional grounds on which federal courts have granted a preliminary injunction to enjoin the policy, highlighting how the courts have relied exclusively on constitutional rights. Part II presents James Madison’s historical narrative on incompatible constitutional powers as a basis for discussing why any substantive constitutional analysis of the policy must—at a minimum—address the underlying separation of powers issue. I then argue that any legal analysis of the President’s military transgender policy that does not rigorously address the competing constitutional powers of the President and Congress within this context brings us another step closer to unfettered executive power.


Cardozo Law Review de·novo



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