Defense Secretary James Mattis announced Tuesday night that he had ordered a comprehensive study of transgender troops in response to President Donald Trump’s tweets and orders directing the Pentagon to bar such troops from serving. In the meantime, transgender troops can continue to serve, although they cannot join the services as new recruits. The move drew praise from LGBTQ advocates and Trump administration critics who saw it as a rebuke of the president from one of his top lieutenants.
However, as Mark Joseph Stern noted in Slate, it may be premature to appoint Mattis as field marshal of the resistance. A more plausible reading suggests Mattis is not disobeying his boss so much as deferring, demurring, and studying actions before taking them. Mindful of the administration’s disastrous travel ban experience, Mattis and the Trump team are likely also putting the transgender ban on firmer legal footing by undertaking six months of study and staff coordination. And in creating such a delay, Mattis may be opening a window for Congress to act here, too, under its constitutional powers to make rules for the armed forces. Cumulatively, this reaction, alongside military reactions to Charlottesville, Virginia, shows the extent to which military leaders are improvising new norms of civil-military relations in the Trump era.
On July 26, Trump tweeted his new policy barring transgender troops. Pentagon leaders initially took the passive-aggressive (but legally unsupportable) position that a tweet was not an order, and that they would wait for a proper order before moving out. A few military leaders even signaled their disagreement with Trump’s new policy or their lack of consultation. Trump’s White House finally issued a more official-looking order last Friday, during a storm of news that included the imminent landfall of Hurricane Harvey and the pardon for former Sheriff Joe Arpaio.
As Stern wrote, Mattis’ actions fall squarely within the bounds of the White House memorandum directing him to act on this issue. Trump directed the Pentagon and Department of Homeland Security to slowly reinstate the historic policies which “generally prohibited openly transgender individuals from accession into the United States military and authorized the discharge of such individuals.” The president’s order specifically gives Mattis the discretion to take his time, and to recommend something else to Trump, while giving Trump the appearance of a political win to satisfy social conservatives in his base.
It’s also worth noting that Mattis’ response comes directly from the Pentagon process playbook, 2017 edition.
Step 1 of following any directive from Congress or the president: Ask for clarification. Both Mattis and Chairman of the Joint Chiefs of Staff Gen. Joseph Dunford effectively did so by waiting for Trump’s tweet to be translated and lawyered into a proper memorandum. This bought time and enabled backchannel negotiation between the Pentagon and the White House over the substance and framing of the eventual order.
Step 2: Create a process, ideally with many steps and task forces, that will grind down the forces of change and reinforce the status quo. Mattis did this, too, by directing the formation of a senior panel bringing “mature experience, most notably in combat and deployed operations, and seasoned judgment to this task.” That’s code, especially the parts about “mature experience” and “notably in combat,” for giving the establishment a heavy vote in what lies ahead. As someone who fits this definition himself, Mattis can predict what such a panel will tell him and how they will then socialize these recommendation within the Pentagon.
Step 3: Commission a study. Mattis previously dismissed the voluminous 2016 study on transgender troops conducted by RAND as lacking “rigor” and inadequate to the questions now at hand. Perhaps, although maybe Mattis wants a study that will be biased toward excluding transgender service members instead of one that weighs the costs and benefits of adding them. This too comes straight from the Pentagon playbook. When a leader wants change, a study generally helps in the change management effort. When a leader signals a preference for the status quo, a study will support it.
Ultimately, the Pentagon process playbook will likely result in precisely what Trump wants: a well-researched, well-coordinated strategy to implement his policy banning transgender troops. But wait—there’s more! The playbook will also produce a better record of evidence, and better final order, to help the Pentagon prevail in litigation. Trump’s tweets—and even his eventual order—contain little more than animus and puffery to support what is, effectively, discrimination on the basis of gender identity. Mattis and his lawyers know they will need more than that to defend this ban in federal court.
Recall that in 1993, then-President Bill Clinton’s move to allow open service by gay and lesbian troops stalled in the face of Pentagon opposition. Congress eventually legislated the policy of “don’t ask, don’t tell, don’t pursue” as a compromise position. Mattis may hope that Congress similarly steps in here to take this issue out of his hands—and to take on its political risks, too.
Congress has both the constitutional authority to act here and has prior precedent on its side. On matters of military manpower policy, Congress has clear textual grants of power within the Constitution to “raise and support armies” and “provide and maintain a navy,” as well as to “make rules for the government and regulation of the land and naval forces.” In addition to legislating on LGBT service in 1993, Congress legislates today on nearly every aspect of military manpower policy, from recruiting standards to education requirements to the total number of troops each service can have. Although the president serves as commander in chief of the armed forces under the Constitution, the Congress clearly has primacy over setting policy for its creation and governance. In delaying the ban and creating so much process around the ban, Mattis is creating the opening for Congress to act. He may even be hoping they take it.
On this and so many other subjects—including the service chiefs’ public statements on racism after Charlottesville—it may be tempting to exaggerate the gaps between Pentagon leaders and Trump. These military leaders are decidedly not part of the resistance. They are pillars of America’s national security establishment who care more deeply about the Constitution and their branches of service than the whims or political impulses of the president. We are not seeing disobedience, and we’re not seeing them saying “no.” Instead, they are improvising as they go, figuring out a way to say “yes,” but only after a period of study and an opportunity to see if there might be a better way.