Transgender Tweets: Trump Tweet Relied Upon By Another Federal Court In Ruling Against Administration

donald_trump_president-elect_portrait_croppedTwitter LogoWe have previously discussed how President Donald Trump has repeatedly been used by federal courts as the most important witness against his own policies due to his ongoing and ill-advised tweets.  Indeed, in all three rounds of the immigration litigation, Trump’s tweets and comments were critically important to courts in ruling against his Administration, including the most recent injunction rulings of the third travel ban order.  Now a judge in Washington has relied on Trump’s tweets to rule against him on his ban on transgender military personnel.  Judge Colleen Kollar Kotelly of the US District Court for the District of Columbia in Jane Doe v. Donald Trump (pdf), found that the plaintiffs were “likely to succeed” on their claims that the ban is discriminatory. The court decision, again, features a Trump tweet.

I have been critical of the President’s continued use of twitter to discuss the Russian investigation and pending litigation in various areas.  The practice may be working politically (there is some disagreement on that point given dropping polls even among Republicans), but it is extremely damaging legally.  Yet, courts have cited Sean Spicer’s poorly considered statement that Trump tweets are “official statements by the President of the United States.”

The court in the transgender case noted that the change in the policy was not launched in a deliberate, administrative process out of the agencies, including the Defense Department, but with a tweet that clearly took the agencies (and cabinet members) by surprise.  Trump’s announcement of a ban on transgender soldiers in the military hit like a thunder clap and left defense officials openly confused and surprised by the news in July.

….Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming…..

Agencies scrambled to catch up to the tweet and eventually announced a new rule on August 25th prohibiting enlisting transgender individuals and force the discharge of active trans soldiers.  That was a reversal of Obama’s 2016 decision in issuing a new administrative policy.  The result, the court suggests, was a type of bait and switch:

Many transgender service members identified themselves to their commanding officers in reliance on that [Obama administration] pronouncement. Then, the president [Trump] abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.

The way that the change was made first by tweet and later by a rule change weighed heavily on the Court.
Then, the President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977) (holding that “[t]he specific sequence of events leading up the challenged decision . . . may shed some light on the decisionmaker’s purposes” and “[d]epartures from the normal procedural sequence also might afford evidence that improper purposes are playing a role”).
The notion of governing by tweet is becoming a dominant theme in these cases.  With Spicer’s ill-considered statement combined with some of these ill-advised tweets, the Administration is undermining its own policies in court.  I can understand the President’s desire to use Twitter as a direct conduit to voters. However, it is the subject not the vehicle that is at issue. Historically, presidents have avoided comments on pending litigation precisely to avoid this type of backlash.

38 thoughts on “Transgender Tweets: Trump Tweet Relied Upon By Another Federal Court In Ruling Against Administration

    • padlegal – if Twitter blocked Trump they would destroy half their traffic. I think 4Chan, as soon as it is done nuking Shia’s latest flag, would shut down Twitter. I heard that this time 4Chan has a drone with a flamethrower on it. This capture the flag game has been fun to follow. Watching them take down Twitter would be even more fun. Where would Hollywood’s perverts apologize?

  1. Perhaps Trump feels that, by issuing decrees directly by tweet, he has eliminated the need for almost all of the Federal government and its pesky bureaucracy.

  2. Again why are we even discussing the merits of his tweets as evidence when the thing we should be discussing is why is a judge issuing a ruling on an issue she has zero authority to even hear. This is a Congressional issue. The judicial has absolutely no say on the matter.

    But seeing that its Collen Kollar-Koteelly I am not surprised that she gave the case audience. Another idiot judge expanding the powers of judges beyond their range.

    This insanity must stop. Judges are out of control with rulings in which they have to defer to Congress but instead decide that they have the powers to instead dictate to Congress and the Executive.

    “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves. ….” Thomas Jefferson
    — Letter to Mr. Jarvis, Sept, 1820

    • Haha. That ship has sailed, comrade. Constitutional rights aren’t subject to popular vote. Change the channel, Hannity is playing you for a fool.

      This is to long cut and paster mouse

      • Being transgender isnt a Constitutional right
        Being transgender is especially NOT a right in the military
        Clearly it is you who has literally zero understanding of the Constitution
        I try real hard to respect the civility rule of Professor Turley but morons make it difficult

        Read and learn something
        http://www.ucmj.us/

  3. I find it very hard to believe that a transgender soldier would be harmed in any way by having “identified” him or herself as trans before the Trump tweet. The gender of a military recruit is not something they would need to “identify” for anyone. Such BS!

  4. Trump is hopelessly addicted to tweeting. He couldn’t stop tweeting if his life depended upon it. Frankly, it’s amazing that Trump doesn’t tweet all the live long day. I’d bet that Trump dreams of tweeting. Maybe tweeting is more gratifying to Trump than the sound of his own voice. Or not. Are there “applause” on twitter? Cheering throngs? It’s in the numbers; isn’t it? 135 million likes. 44 million retweets. 46 million replies. It’s addictive; isn’t it? It’s Twitter Madness.

    • Developing a policy by deliberative process is intolerable to someone with zero patience. Think of the queen in Alice in Wonderland.

      • Developing a policy by deliberative process is intolerable to someone with zero patience.

        He should stop tweeting and just grab his pen and his phone. Oh wait, no. That whole “uber Presidency” thing is a destructive abuse of power. If only this President would have the tolerance for the deliberative process to force Congress to do its job, you know, like putting DACA on their agenda. Nah, that’s not a very progressive thing to do.

        • Yes, Congress should put DACA on their agenda – along with a new war powers authorization, and lots of other things as well. It is shameful that they stay crouched in their bomb shelters.

          • Congress should put DACA on their agenda…It is shameful that they stay crouched in their bomb shelters.

            I agree with your post. However, there’s no should about it. It’s there because this President put it there; because that’s their job, not the President’s. That means the deliberative process must be tolerated because that’s what the constitution requires. No pen, no phone, no Uber President.

  5. Judge literally has ZERO ability to issue a ruling on this issue. Should have kicked it and said to take it up with Congress.

    • So an entire group of people should have an abrupt and traumatic termination to their military employment and career situations, with no recourse but to hope that Congress might eventually pass a law to help them out?

      • People are discharged from the military in large numbers every year. No there are not ‘large numbers’ of head cases taking hormone treatments and insisting on mutiliating surgery ensconced in the military.

  6. “it is the subject not the vehicle that is at issue” This is where you are wrong. With Trump, it is the vehicle that is the issue, specifically the vehicle that gets out his view to followers so they can all be angry at the system when the courts overturn him (and them). It breeds more anger. That is what Trump is after, anger, not policy. He and his acolytes want to destroy this “corrupt” system and build a new one based on their misogynist, my god is greater than your god, racist belief.

    • And you and your “acolytes” want to censor all communication that you – in your infinite wisdom – consider naughty!

      • I don’t have a clue what you are talking about. Let him tweet, I don’t want to censor anything. You know nothing of me yet make broad assumptions. Read what I said, It’s my opinion of what is going on, maybe I’m wrong. Just who am I an acolyte for?

        • Um……no broad assumptions necessary, Paul: ” He and his acolytes want to build”… “on their misogynist, my god is greater than your god, racist belief.”

  7. Since 95% of the press coverage of the President is negative, Twitter is his avenue to reach his base. I think the judge is dead wrong in the long run, but right in the short run. He will lose in the lower courts and win in the SC. In fairness, the judge should have considered all the negative press about Trump leading up to his Tweet.

    • Much of the negative press against Trump is some form of hysteria and a piling on when he makes a mistake or something can be portrayed in a negative light. The greater amount is a result of him being inconsistent, impetuous, ill-informed, arrogant, and dangerous (N.Korea),

      Conversely, his coverage on the largest cable news outlet and right-wing media (which represents far more than 5%) absolutely fawns over most everything he does and finds a way to adopt positions they used to oppose until Trump tweets about it. Even today you can see a huge effort to say the recent indictments show “NO COLLUSION” when one of the indictments shows exactly that. Even Professor Turley in his USA Today column speaks about the Manafort and Gates indictment without mention of the Papadopoulos guilty plea to having lied to the FBI about colluding with Russia (with full knowledge and approval of others in the campaign). #NotFakeNews

        • Yet the President keeps telling us in every tweet there was none? If there were collusion (oh I forgot, someone has already admitted to it and it’s documented in a chain of E-mails) what should be the response? How should the nation, the Courts and the Congress feel about it?

          • Your judgement is pathetic. The USA, when confronted with an independent sovereign nation with a leader that does not tow the line favorable to US financial interests, simply launches missiles or dispatches the CIA with bucket loads of US taxpayer funds. Either the CIA itself or one of their paid lackeys assassinates said leader.

            The most recent noteworthy such leader is Muammar Gaddafi. The CIA armed, trained, and financed alleged “moderate” Muslim militants (as oxymoronic as “mid east peace process”) who anally raped and beheaded Muammar for his mortal sin of promoting a single African currency to better negotiate with Western banks intent on the financial rape of Africa, the single greatest store of untapped wealth on earth. (Watch the candid YT video: while then-SOS HRC prepared for an interview, her assistant gave her a tablet and shared the “good news” of Gaddafi’s death, to which HRC is heard to CACKLE AND SAY, “WE CAME, WE SAW, HE DIED.”

            Too bad you, as an apparent black, know nothing or don’t care about the above report because it contradicts your “house slave” status all too common among black American Democraps.

            How should the world’s 98% non-American citizens feel about the USA’s most common “solutions” when confronted with world leaders it does not prefer? Your panties are in a bunch over Putin spending $150k on social media, while the world literally burns of sulfur from America’s illegal military excursions to insure our standard of living. Pathetic.

            • Poor Joseph, is this what passes for open discourse for you? Attack away, and keep telling me what “apparent black” people should believe because you have our best interest at heart. One can be aware of America’s attempts to influence foreign policy around the world including military excursions under every administration and still be able to find fault with this particular President.
              My argument to your “house slave” comment is that the Republican Party can never be an option as long as it engages in Voter Suppression in the manner it does. (And yes I know the history of the Democratic Party in that regard).
              Enjoy your day and you might do a little work on your personal interaction skills before you write that updated version of, “Winning Friends and Influencing People.”

        • Should we tolerate a foreign power cleverly tilting the balance of public opinion just enough to elect the candidate favored by that foreign power? And what about those in the US who aided and abetted that process? Not a crime?

          • Jay S – we tolerated the Soviet Union’s involvement in the Civil Rights movement and the anti-war demonstrations during Vietnam. Why not now? Obama has given his support to more than one candidate for European office in hopes they would carry on his globalization.

            The US does not have clean hands here. We overthrew the government in Vietnam to get a more suitable candidate for office and we have been involved in the politics of many nations, particularly in Central and South America. We have probably done our best to undermine Putin’s re-election, but seem to be doing it sub rosa.

            • The US does not have clean hands here. We overthrew the government in Vietnam to get a more suitable candidate for office and we have been involved in the politics of many nations, particularly in Central and South America. We have probably done our best to undermine Putin’s re-election, but seem to be doing it sub rosa.

              Ngo Dinh Diem’s legitimacy was entirely derived from being the occupant of the office. Removing him proved a severe mistake for prudential reasons and prudential reasons only.

              We’ve been ‘involved’ in Central American politics because those places have a long history of institutions in hopeless condition and the detritus of their incompetence creates policy dilemmas for foreign powers.

          • Jay S:

            Please list the votes or voters that were changed by the foreign power “tilting the balance of public opinion just enough.” Were they in Idaho or Minnesota or just ’cause? Were the Ukrainians tipping it against Trump when Manafort worked for Podesta? What’s the net tip effect? Do we need an actuary?

            If you don’t want to tolerate the claimed interference, what should we do? Invade Russia? Hold the Bolshoi Ballet hostage when they come to town? Ban fur hats?

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