Executive Power

What Is the Necessary Procedure to Turn the President's Transgender Tweets Into Military Orders?

By Russell Spivak
Wednesday, August 2, 2017, 3:01 PM

Below is an excerpt from a piece that appeared on our Foreign Policy feed earlier today.

Last week, President Donald Trump took to Twitter to announce his intended reinstatement of a ban on openly transgender people serving in the U.S. armed forces:

Other commentators have already analyzed the merits of the suggested change in policy. But there is another interesting question here about the tweets’ impact—or lack thereof—in effecting the necessary procedure for a change in military personnel. Exploring that question requires examining past changes to policies governing military demographics.

Proper Procedure

This isn’t the first time the public has been forced to consider the legal import of Trump’s tweets. Whether the president’s tweets carry official weight was also a major question in litigation over the so-called travel ban. On June 6, in response to inquiries from reporters about Trump’s tweets criticizing the Justice Department and defiantly declaring his order “a TRAVEL BAN,” Sean Spicer, then the White House press secretary, said: “The president is the president of the United States, so they’re considered official statements by the president of the United States.”

But even assuming tweets can be construed as official statements evincing intent, in the words of Harvard Law professor Jeannie Suk Gersen, “[a] tweet by a president is neither a law nor an executive order.” Gersen’s conclusion that the president’s tweets do not have legal effect and therefore do not impact Defense Department policy has been widely echoed.

Her view is, most importantly, one shared by Chairman of the Joint Chiefs of Staff Joseph Dunford, the country’s highest-ranking uniformed military officer. The day after Trump’s tweets, Dunford issued a letter to the service chiefs, commanders and senior enlisted leaders of each service branch, stating:

I know there are questions about yesterday’s announcement on the transgender policy by the president. There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.

In the meantime, we will continue to treat all of our personnel with respect. As importantly, given the current fight and the challenges we face, we will all remain focused on accomplishing our assigned missions.

Dunford’s letter suggests that although Trump is the commander-in-chief and in charge of the executive branch and the armed forces, a mere official statement is not an order, military or executive, as would be required to compel Defense Secretary James Mattis to overhaul policy.