Trump Should Ignore Judge on Transgenders

U.S. District Judge Colleen Kollar-Kotelly is a lowly U.S. District Court judge in the District of Columbia. She is not the Commander-in-Chief. 

Yet she has somehow appointed herself commandant of the entire United States military in an astonishing display of hubris and judicial supremacy. She ruled this week that transgenders must be allowed to serve in the military, overturning the president’s executive order on the matter. 

Senatorial candidate Judge Roy Moore, who knows a thing or two about confronting an out-of-control judiciary, today called for this judge’s impeachment, and of course he is right to do so. But we don’t need to wait that long. 

The solution to this stupendous display of judicial overreach is simple: President Trump should ignore this judge and her misbegotten opinion and direct the troops under his command - the entire U.S. military - to follow his orders and ignore hers. They report to him, not to her. 

The president’s order banning transgender troops from military service was issued to counter President Obama’s unconstitutional executive order allowing them to serve. The reason Obama’s order was flatly unconstitutional is because the Constitution in Article I Section 8 vests Congress - not the president - with the responsibility “To make Rules for the Government and Regulation of the land and naval Forces.” 

In other words, only Congress can allow transgenders to serve in the armed forces. That wasn’t President Obama’s call, and it certainly is not Judge Kollar-Kotelly’s call either. If transvestites are to be allowed to serve, Congress must pass a law allowing it. And Congress has done no such thing. All President Trump has done with his executive order on transgenders is reestablish the rule of law in the military. 

Under the separation of powers enshrined in our Constitution by the Founders, Congress makes laws, the President enforces them, and the courts apply them. The courts’ only authority is to apply the law in the cases before them, but they have zero, nada, zilch, authority to make the law. 

According to Article I, “All legislative powers herein granted shall be vested in a Congress of the United States.” “All” means “all,” as in every last little bit. How much legislative authority does this leave for tin-pot federal judges? Bupkis. 

Our approach to judicial activism to this point has been like our approach to the weather. We all talk about it, but nobody does anything about it. Well, the president has the opportunity to do something about it by shutting this judge down and refusing to be cowed into accepting her wayward opinion. 

He should proceed as if this judge had not spoken at all, for the simple reason that her words on this topic carry no authorized legal weight whatsoever. For the president to meekly capitulate on this matter sends the message to this arrogant, self-aggrandizing judge that she has the authority to flout the Constitution and appoint herself the de facto commander-in-chief. But to paraphrase Martin Luther King, Jr, an unjust ruling is no ruling at all, and the president has no obligation to defer to it. In fact, he has a solemn and sworn duty not to defer to it. 

As Thomas Jefferson said, “The opinion which gives to the judges the right to decide what laws are constitutional not only for themselves in their own spheres of action, but for the legislature and the executive...would make the judiciary a despotic branch.” 

It’s time for these despots to be put in their place, and President Trump can get that done. And today would be a good day to start.