A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled Monday that the Pentagon’s policy barring individuals with gender dysphoria from military service likely violates the Constitution. In , the majority found the policy — issued under President Trump’s executive order and implemented by Defense Secretary Pete Hegseth — appears driven by “the bare desire to harm a politically unpopular group.” The court upheld a preliminary injunction protecting current transgender servicemembers from removal while allowing the ban on new accessions.
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This is not constitutional adjudication. It is judicial legislation dressed in equal-protection robes, and it represents another dangerous step by federal courts outside the bounds of their authority and into the core constitutional domain of the political branches.
The Constitution is unambiguous. Article II, Section 2 declares that the President “shall be Commander in Chief of the Army and Navy of the United States.” Article I, Section 8 grants Congress the power “to raise and support Armies” and “to provide and maintain a Navy,” along with the authority “to make Rules for the Government and Regulation of the land and naval Forces.” Nowhere does the Constitution grant federal judges any role in setting military standards, determining fitness for service, or second-guessing the professional judgment of military leaders on unit cohesion, readiness, lethality, or medical qualifications.
Military service is not a constitutional right. It is a privilege extended by the political branches to those who meet the exacting standards required to defend the nation. The military’s job is to win wars, not to serve as a laboratory for social experimentation or a vehicle for judicial policy preferences.
Consider the implications. Suppose, God forbid, another American embassy is seized, or a crisis erupts in the Taiwan Strait. The President, as Commander in Chief, orders the USS Ronald Reagan to get underway from San Diego Bay immediately. A federal district judge — perhaps the same one who believes military personnel policy is subject to his equal-protection analysis — issues an order prohibiting the carrier from sailing because he disagrees with some aspect of the deployment or the underlying personnel standards. Does the President obey that order?
Abraham Lincoln understood this principle during the Civil War. In Ex parte Merryman (1861), Chief Justice Roger Taney, sitting as a circuit judge, issued a writ of habeas corpus demanding the production of John Merryman, a Confederate sympathizer arrested by military authorities in Maryland. Lincoln’s administration refused to comply. Lincoln had suspended the writ along key rail lines to protect the capital, and he treated the matter as one of military necessity outside the ordinary reach of the civilian courts. Taney’s order was ignored. The courts do not command the Army or Navy.
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The Framers anticipated exactly this kind of overreach. In Federalist No. 78, Alexander Hamilton described the judiciary as “beyond comparison the weakest of the three departments of power.” It possesses “neither FORCE nor WILL, but merely judgment” and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” The judiciary, Hamilton wrote, “has no influence over either the sword or the purse.” It cannot direct the strength of the society or command the military. That power belongs to the President and Congress.
The D.C. Circuit majority has forgotten — or chosen to ignore — this foundational limit. By labeling a military medical and readiness policy as unconstitutional “animus,” the court substituted its own policy judgment for that of the elected Commander in Chief and the Secretary of Defense. One dissenting judge got it right: “We have neither the expertise nor the authority to decide whether the military can exclude the plaintiffs from its ranks. The Constitution assigns that authority to Congress and the Commander in Chief.”
This ruling is part of a broader pattern. Federal courts, particularly in the District of Columbia, have repeatedly inserted themselves into questions of military personnel policy, national security, and executive war powers that the Constitution reserves to the political branches. Whether the issue is transgender service standards, vaccine mandates, or rules of engagement, activist judges increasingly treat the armed forces as just another federal agency subject to their policy veto.
The Trump administration should not treat this preliminary injunction as the final word. It should immediately seek emergency relief from the Supreme Court and make clear that core military command decisions — especially those involving fitness, cohesion, and standards — will not be dictated by the judiciary. Where the order conflicts with the President’s constitutional duty to ensure a ready and lethal force, the military should proceed with implementation while the appeal is pending.
The American people did not elect federal judges to run the military. They elected a Commander-in-Chief. The Constitution draws a bright line between the sword and the robe. The D.C. Circuit has crossed it. The administration must draw it back — firmly, publicly, and without apology.
Don Brown is a former Navy Judge Advocate who served at the Pentagon. A graduate of the University of North Carolina at Chapel Hill and the international law program at the Naval War College, he is a nationally bestselling author and commentator on national security, military justice, and foreign policy. He previously served as a special assistant United States attorney and was a candidate for the United States Senate from North Carolina.