Donald Trump's policy-on-the-fly tweet in July announcing a ban on transgender servicemembers was thoroughly obliterated Tuesday by a second federal judge.
U.S. District Judge Marvin J. Garbis of Maryland, a George H.W. Bush appointee, suspended implementation of the entire ban on both trans recruitment and retention along with its prohibition on medical treatment for transgender servicemembers.
The preliminary injunction issued by the judge in Baltimore on Tuesday goes further than the earlier ruling by also preventing the administration from denying funding for sex-reassignment surgeries after the order takes effect.
Importantly, both federal judges have agreed that a “heightened scrutiny” standard of review should be applied to Trump's trans ban, meaning that the government will have to advance an “exceedingly persuasive justification” for discriminating against this group of servicemembers. But Garbis dismissed the ban as “unlikely” of even passing a less rigorous “rational basis” test.
Trump has no one but himself to thank for the ill-conceived and perhaps fatally flawed ban he issued with zero forethought or consultation with informed parties. Judge Garbis skewered Trump for his "shocking" negligence in announcing the new policy.
An unexpected announcement by the President and Commander in Chief of the United States via Twitter that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military” certainly can be considered shocking under the circumstances. … A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.
Both preliminary injunctions, from Judge Garbis and U.S. District Judge Colleen Kollar-Kotelly, complement each other, but Garbis's ruling opens a due process consideration that could be key to the ban's consideration at the Supreme Court. Slate's Mark Joseph Stern writes:
… while Kollar-Kotelly focused only on equality, Garbis grounded his decision in both equal protection and due process. This analysis permits Garbis to explore a separate facet of the constitutional injury here: the government’s betrayal of transgender troops whom it had already invited to serve openly. Garbis holds that this “egregiously offensive” duplicity constitutes a due process violation on its own terms. This logic might appeal to other judges—including Supreme Court justices—who are hesitant to join an expansive equal protection decision protecting transgender rights. It’s a narrower path to the same conclusion: Trump’s trans troops ban cannot withstand the slightest amount of constitutional scrutiny.
But if there’s one thing this ruling reinforces, it’s that the more Trump tweets, the more he hobbles his own ability to accomplish the many awful things he wants to accomplish.
Tweet away, Trump, tweet away.