In yet more violence done to the Federal Constitution by an unelected federal judge almost certainly exceeding her authority, in Talbot v. United States, U.S. District Judge for the District of Columbia Ana Reyes — the most important judges in the history of the universe, apparently — has decided to put an injunction on President Donald Trump’s Jan. 27 executive order expanding the list of disqualifying psychological disorders to include persons suffering from gender dysphoria from military service after they were summarily discharged under a Feb. 26 Defense Department memorandum.
According to Judge Reyes’ ruling, “Plaintiffs have shown they are likely to succeed on their Fifth Amendment claim,” which entailed “that the Military Ban violates the equal protection component of the Due Process Clause of the Fifth Amendment. They also allege that the Military Ban violates the currently serving Plaintiffs’ procedural due process rights under the Fifth Amendment.”
Gender dysphoria is a psychological condition, according to Pyschiatry.org, wherein a patient experiences “psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity.”
Now, President Trump as the Commander-in-Chief of the military under Article II of the Constitution and Defense Secretary Pete Hegseth have expanded the list of disqualifying psychological disorders to include gender dysphoria, joining sleep disorders, attention deficit hyperactivity disorder, dyslexia, autism spectrum disorder, schizophrenia, delusional disorders, unspecified psychoses, mood disorders with psychotic features, bipolar and related disorders, depressive disorder, recurrent single adjustment disorder, conduct disorders, oppositional defiance disorders, behavior disorders, personality disorders, encopresis, eating disorders, communication disorders, history of suicidality, history of self-harm, obsessive-compulsive disorder, post traumatic stress disorder, anxiety, dissociative disorders, somatic symptoms and related disorders, paraphilic disorders, substance abuse, history of prescription of psychotropic medication within 36 months, history of any other mental disorders and prior psychiatric hospitalization for any cause.
It also joins other disqualifying conditions such as being overweight or suffering from asthma or paralysis, etc.
Are all of those suffering from those conditions being discriminated against too under the Fifth Amendment? This is the fantasy that Judge Reyes is indulging.
The fact is, not everyone gets to serve. And under Article II, it is the Commander-in-Chief and the chain of command who makes the determination who is fit to serve. This is affirmed by statute by Congress in 10 U.S. Code Sec. 136(b): “Subject to the authority, direction, and control of the Secretary of Defense, the Under Secretary of Defense for Personnel and Readiness shall perform such duties and exercise such powers as the Secretary of Defense may prescribe in the areas of military readiness, total force management, military and civilian personnel requirements, military and civilian personnel training, military and civilian family matters, exchange, commissary, and nonappropriated fund activities, personnel requirements for weapons support, National Guard and reserve components, and health affairs.”
This is a core Article II responsibility that could be performed even without this grant of legislative authority that only serves to bolster President Trump and Secretary Hegseth’s argument that the executive branch alone makes the determination of which conditions are disqualifying.
There are no equal protection claims as it relates to sex or gender in the military. In fact, women in the military was not regularized until 1948 by the Women’s Armed Services Integration Act. But even with their inclusion, most women based on strength requirements might not be suitable for a combat role, and there is no equal protection claim under the Fifth Amendment they would be required to be put into those positions either. Or Congress could repeal that law and make war exclusive a male affair, which it mostly is anyway, with almost 83 percent of enlisted personnel being male, according to the U.S. Naval Institute.
You know what members of the military also don’t really get to claim? Viewpoint discrimination under the First Amendment. For example, whether in civilian or non-civilian roles, all federal government employees have to take an oath to defend and protect the Constitution of the United States and to be adverse to the enemies of the United States.
Thinking about overthrowing the government? Want to lead a communist revolution for everyone to murder their bosses and steal their property? Certainly these are protected viewpoints under the First Amendment — provided you don’t act on them, you’ll be posing an imminent danger and violating a bunch of federal and state laws — but they are absolutely disqualifying to serve in government, whether on the civilian side or in the military. And they should be!
And there is no violation of the First Amendment, as the compelling interest of the executive to have enlisted members and officers of the military be loyal to the United States and not be communist or fascist ideologues trumps any claims of free speech.
As an aside, the same might be said for anyone here on a visa, student or otherwise, who are adhering to terrorist organizations like Hamas or Islamic State and so forth. Certainly, there are First Amendment protections to say and think what you want while being on U.S. soil, but being disloyal to the United States is absolutely a legitimate criterion for removal from the United States of non-citizens. It’s one of those things where viewpoint must be considered.
Tren da Aragua doesn’t get to claim the freedom of association under the First Amendment either to shield itself from removal under the Alien Enemy Act of 1798, either, once invoked by the President to label them a military faction. They don’t even need to be removed, the President could just send troops to attack their positions to repel the invasion.
All of the above would also be disqualifying from serving in the military as well, although for civilians in terms of viewpoint, maybe they like these extremist and criminal factions and sympathize with them, fine, whatever, these might indeed be invoking constitutional rights. Having those viewpoints does not entitle one to military service when it comes to loyalty to the American flag.
Where Judge Reyes errs, and what will almost certainly be overturned, is the presumption that the Fifth Amendment’s requirements of equal protection and due process can easily be applied to proven medical and psychological conditions, but more so, that local federal district judges can commandeer the U.S. military in this fashion to micromanage the executive branch’s most important function, protecting the United States from attack and the manner in which that must be done. The military is supposed to be deadly, not nice, and that’s fine. Not everyone gets to stand on the wall.
Robert Romano is the Executive Director of Americans for Limited Government Foundation.
