Federal Judge Colleen Kollar-Kotelly has issued a ruling intended to force the Trump Administration to allow transgenders to enlist in the military. One observer has, I think rightly, characterized this as an attempt to act as “Supreme Judicial Commander of the military.”, usurping the overall command authority the Constitution clearly vests in the President of the United States.
“Acting as ‘supreme judicial commander of the military,’ [Kollar-Kotelly] issued an order directing President Trump and Defense Secretary James Mattis to reinstate Obama-era mandates to retain and induct new transgender recruits,” explained Elaine Donnelly, president of the nonpartisan Center for Military Readiness.
Donnelly goes on to suggest that the Trump administration should “seek stays from higher courts” in all cases where the President’s authority to refuse enlistment to transgenders is being challenged in court. She suggests that “if the district courts are unwilling to cooperate, the administration should go immediately to the U.S., Supreme Court.”
But what is the Constitutional basis on which even the U.S. Supreme Court can mandatorily usurp the power of the Commander in Chief, in matters that the President considers vital to fulfilling his responsibility to “provide for the common defense”, as the plainly stated intention of the people of the United States for the Constitution requires. If the U.S. Supreme Court ultimately overrules the President decision, and orders, in this or that particular case, that a transgender person or persons be enlisted, must the President simply acquiesce, even despite his own best judgment that this will adversely affect the readiness of the armed forces of the United States, existentially endangering the effective existence of the Constitution?
He also has exclusive authority as Commander in Chief, a role in no way shared by the Federal Judiciary or the Legislature. The oath he has sworn requires that he “preserve, protect and defend the Constitution against all enemies, foreign and domestic.” If the Federal Judiciary sets itself against a course of action vital to the existential survival of the nation, which of course includes its Constitution”, how can the President, in good conscience, obey that order, consistently with his sworn duty?
To be sure, the Federal Judiciary is vested with the power to decide such particular/specific cases as the Constitution assigns to its jurisdiction. But where is it granted any power to enforce its rulings? One of the most prominent Framers of the Constitution clearly assumed that it does not have any such power, when he wrote:
The judiciary, on the contrary, has no influence over either the sword of the purse; no direction of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments (Alexander Hamilton, Federalist #78).
It can certainly be argued that, as a matter of course, the President should faithfully execute the laws made pursuant to the Constitution, which therefore form part of the Supreme Law of the Land. But the Constitution nowhere grants the U.S. Supreme Court the power to make such laws. Nor does it anywhere say that opinions of the SCOTUS must be enforced by the President. Indeed, such a requirement would permanently defeat the separation of powers, a division of power universally acknowledged to be crucial to implementing the scheme of checks and balances the Framers intended to prevent any one of the branches from exercising permanent dictatorial power over the governments and people of the United States.
It may be argued that the Judicial power to decide cases is null and void, except on the assumption that those decisions must take effect. But this argument simply asserts the fact that judicial power is, theoretically, a necessary aspect of executive power—an observation made in The Spirit of the Laws by Montesquieu, the eminent French political scientist, whose work the leading Founders of the United States often referred to in their discussions and debates. But this theoretical fact is precisely what the institution of a separate Judicial branch is intended, in effect, to modify, in the interests of liberty. Montesquieu argued, from experience, that where judicial and executive power are joined, tyrannical abuses must inevitably result, especially against individuals.
Thus, the Federal judiciary is confined, when exercising its power, to deciding individual cases. Despite the corrupt usage of our times, it has no power simply to strike down laws, and certainly no power to remake them according to its whims. It is reminiscent of the power of the tribunes during the Roman Republic. They could intervene to prevent execution of an edict or law against an individual, in order to assure that justice was being, or would be, done.
It may be, therefore, that, all other things being equal, the President is bound to respect the opinion of the Judiciary in any given case. But given his responsibility for the existential preservation of whole—of the nation and the Constitution—it should go without saying that, when the enforcement of this or that rule of the SCOTUS will, in his judgment, seriously endanger the nation and/ or the Constitution as a whole, he is obliged by his oath to prefer the good of the whole to the claims of any individual.
If, in the case we are here discussing, President Trump conscientiously and after due diligence, concludes that the good of the whole will be endangered if and when transgenders (or any other arbitrarily self-determined group) are allowed to serve in the military, he has the obligation to act accordingly, and does right by his sworn duty when he does. Formally speaking, this might properly take the form of ordering military personnel according to his good judgment, and formally pardoning them from court imposed legal sanctions because they do so.
This ability to issue military orders that conform to the existential requirements of the nation and the Constitution at any given time is, quite logically, the most critical reason for assigning blanket pardoning power to the President of the United States. Except in cases of impeachment, the President has the power to pardon any and all offenses under the Constitution, including treason, regardless of the results of any judicial process. That power cannot be taken away from the occupant of the Presidency except with the office itself, by way of impeachment and removal as provided for in the Constitution.
As a matter of fact, therefore, it is within the power of the President simply to refuse to enforce any opinion of the SCOTUS when he concludes that enforcing it would contradict that actual performance of his sworn duty. If and when he does so, it is not for the SCOTUS to dispute his judgment. That duty falls to the Congress of the United States, and in the first instance, to the House of Representatives. In this respect, nothing is more dangerous to the survival of the Constitution, and the liberty it is supposed to ensure, than the ongoing and complete dereliction of the House manifest in its refusal to establish and routinely use such permanent structures as are required to give uniform, transparently fair, and objective consideration to the matter of impeachments of the civil officers of the United States, including the President and Vice-President.
This is not only needed to assure that the President is held accountable for any abuses he or she may undertake. It is also necessary to assure that the occupant of the office is assured that decisions required, in spite of SCOTUS decisions, will be properly considered by the Representatives of the people, and voted upon, upholding or withdrawing confidence from the incumbent President, in the manner the Constitution provides. Thus, the people themselves will be reassured, but also challenged to remember that their choice of representatives in Congress is liable to be the ultimate arbiter of the observance and integrity of the Constitution, as befits a people truly in possession of their sovereign liberty; and determined, as a people, to exercise it responsibly.
The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.