My friend Phil Carter has written an excellent piece for Slate, pointing out the institutional dangers of disregarding President Trump’s recent series of tweets that announced an unjustified retrograde policy barring transgender personnel from service in the armed forces. What follows is a slight friendly amendment to Phil’s fine essay, offering some additional perspective drawn from the Manual for Courts-Martial that may interest readers. (The Manual is an executive order, issued and amended from time to time by the president. It sets forth many provisions that would, in comparable civilian settings, be found in a code of criminal procedure. It has the force of law.)
The president of course is responsible for taking care that the Constitution and laws are enforced. He is also, by specific provision of the Constitution, the commander in chief of the armed forces. Taken together, these provisions authorize him to give binding orders to his civilian subordinates such as the secretary of defense and the service secretaries. But can he give directions to military personnel that have the same legal sanction as orders given by a uniformed superior to a uniformed subordinate? Here things get a little murky. The basic disobedience provision (Article 90(2) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892(2)) applies only to orders given by commissioned officers, and President Trump is not now and never has been a commissioned officer. Instead, it is Article 92(1), 10 U.S.C. § 892(1), dealing with general orders and regulations, which extends beyond orders issued by uniformed personnel to those issued by the president. It provides:
“Any person subject to this chapter [mostly, but not only, those who are on active duty] who—(1) violates or fails to obey any lawful general order or regulation . . . shall be punished as a court-martial may direct.”
Under the Manual, to be lawful, an “order must not conflict with the statutory or constitutional rights of the person receiving the order.” It is already clear that the constitutionality of President Trump’s tweeted policy will be litigated. The Manual also states:
“The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs.”
These basic criteria too may come into play, albeit only indirectly, in the legal challenges to come.
But what is a general order and who can issue one?
“General orders or regulations are those orders or regulations generally applicable to an armed force which are properly published by the President or the Secretary of Defense, of Homeland Security, or of a military department, and those orders or regulations generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof which are issued by: (i) an officer having general court-martial jurisdiction; (ii) a general or flag officer in command; or (iii) a commander superior to (i) or (ii).”
Presidents are authorized by the UCMJ to convene general courts-martial. The important thing about general orders is that they bind everyone who is subject to the UCMJ, even those who are unaware of them. In other words, lack of knowledge is not a defense; everyone is deemed to have notice of a properly issued and disseminated general order.
How long can the Pentagon take before giving effect to President Trump’s announced policy? If the tweets qualify as an order of any kind for military justice purposes (as opposed to the normal kind of direction that the Chief Executive gives all the time to agency heads), the answer is “it all depends.” Thus, the Manual provides: “When an order requires immediate compliance, an accused’s declared intent not to obey and the failure to make any move to comply constitutes disobedience. Immediate compliance is required for any order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed.” No reasonable observer would read this week’s tweetstorm as giving rise to immediately effective requirements on the ground. Quite the contrary, some formal memorialization of President Trump’s repudiation of the Obama administration’s policy (not to mention his own statements on the campaign trail) is to be expected.
Phil Carter compellingly showed that over American history presidents have used a variety of means to communicate their instructions to subordinates. And clearly, the means and diversity of communication have changed dramatically, and increasingly in past years. What President Abraham Lincoln might have done by letter or telegram today might well be done by email or social media — be it Twitter, Facebook or other means. So long as there was no question of hacking or authenticity, it makes no difference whether the tweets at issue were sent from the President’s official or personal Twitter account. Indeed, the new policy could have been written on a Mar-a-Lago napkin. Military law recognizes this. The Manual observes in connection with Article 90: “As long as the order is understandable, the form of the order is immaterial, as is the method by which it is transmitted to the accused.” There is no reason the same principle wouldn’t apply to presidential directives that constitute general orders or regulations.
To be enforceable, however, orders must meet a test of specificity. The Manual states — again in the context of Article 90 — that “[t]he order must be a specific mandate to do or not to do a specific act.” President Trump’s trans tweet trio does not meet this test since it only set a broad policy, and not the particulars required for implementation by the Defense Department, the military departments and (for the Coast Guard) the Department of Homeland Security. General orders, moreover, can be enforced through the military justice system only if they are “punitive.” That is, if it is clear that the issuer of the order intended for violations to constitute offenses under the UCMJ. Many general orders do not meet this test. As the Manual states:
“Not all provisions in general orders or regulations can be enforced under Article 92(1). Regulations which only supply general guidelines or advice for conducting military functions may not be enforceable under Article 92(1).”
The trans tweets do not meet this test either.
Bottom line: It misconstrues the legal landscape to suggest that the services’ senior leaders are being in any degree insubordinate by waiting for the White House to put some flesh on the bones of the tweets. Until the armed forces issue proper implementing regulations — which experience teaches is likely to take weeks if not months — military commanders should not discharge transgender personnel. Those personnel, however, should lawyer up for the fight ahead. As for those seeking to enlist, it would not be surprising if a de facto moratorium were to arise, simply because of the chilling effect of the tweets, whatever their legal status. Such an informal freeze would presumably be of relatively short duration and harder to litigate.