by Stephen Kaus on March 24, 2025 (BeyondChron.org)
Huge Legal Battle Over Transgender Ban
“… a policy that bans transgender persons from military service—individuals who have served honorably and ‘made American safer’—should result from study at least comparable to one that bans paper straws.” Washington D.C. federal Judge Ana C. Reyes
In a 79-page opinion that features tight legal analysis and strong language, Judge Reyes enjoined President Trump and Defense Secretary Hegseth from enforcing their ban on transgender military service. The basic holding is that excluding transgender individuals is no more acceptable than excluding African Americans or women.
This is a huge legal battle. As Commander-in-Chief, the President has the core Constitutional power of maintaining the defense of the United States. On the other hand, a basic judicial function is to prevent discrimination. Transgender people have been considered as a “quasi-suspect class,” that cannot be treated differently unless required by an “important governmental interest.”
In an Executive Order, Trump stated that service by transgender persons is “inconsistent” with the mission to “protect the American people and our homeland as the world’s most lethal and effective fighting force.” He also stated that transgender persons cannot maintain “an honorable, truthful, and disciplined lifestyle,” and that their expression of sexual identity “is not consistent with … humility and selflessness.”
Following up, Hegseth found that being transgender is inconsistent” with “high standards for Service member readiness, lethality, cohesion, honesty, humility, uniformity, and integrity.”
Judge Reyes refused to credit these statements because they contain no basis for their conclusions and the government did not provide any in court. At the hearing, the government lawyer admitted that nothing in several studies he cited “says anything close” to the statements by Trump and Hegseth.
The decision recognizes that military readiness is squarely the President’s responsibility but holds that the need for readiness cannot be used “to deny marginalized persons the privilege of serving.” A court is not required to blindly defer to the military’s judgment when there is no evidence to support prejudicial views.
In the most scathing portion of her opinion, Judge Reyes compared the lack of any support for Trump’s and Hegseth’s opinions that transgender individuals lack military worthiness to the Executive Order “Ending Procurement and Forced Use of Paper Straws.” She points out that the Straw Order gives five “clear and articulable reasons to support its conclusions” and a supporting sheet cites “multiple studies supporting these claims.”
On the other hand, “[n]o such rationale, much less supporting data, is anywhere to be found in the transgender military ban.” “Presumably, Judge Reyes concluded, “a policy that bans transgender persons from military service—individuals who have served honorably and “made American safer”—should result from study at least comparable to one that bans paper straws.”
On the claim that medical transgender care costs are excessive, the decision points out that the military paid $42 million for Viagra in 2023, while the medical transgender costs are estimated at $5.2 million. “Defendants do not explain why the former (and every other medical cost) is acceptable while the latter requires banning transgender persons from military service.”
Judge Reyes further found that the transgender ban “is soaked in animus and dripping with pretext. Its language is unabashedly demeaning, its policy stigmatizes transgender persons as inherently unfit, and its conclusions bear no relation to fact.”
In the end, Judge Reyes granted a preliminary injunction, extending to all transgender service members facing the ban and stayed its Order until Mar. 21, 2025, to allow the government to seek a stay from the Court of Appeals.
Prediction: This trial court ruling against Trump is one of the least likely to stand up on appeal because the military is uniquely the President’s responsibility.
Battle over Trump’s defiance of Order not to Deport Venezuelans Heats Up. When we left the case about Trump’s invocation of the 1798 Alien Enemies Act to deport alleged Venezuelan gang members last week, Team Trump, which apparently includes the President of El Salvador, was gloating that it had deported three planeloads despite the order by D.C. District Court Chief Judge James Boasberg that they not do so.
The case has blown up even further this week. In court, Judge Boasberg repeatedly asked the government for the timing of the flights relative to his order to “turn the planes around.” The government has stonewalled, defiantly telling Judge Boasberg that he was intruding on Presidential power, “beating a dead horse,” and infringing on national security in some unspecified way.
Judge Boasberg kept giving the government 24-hour extensions to come up with a better answer.
On Thursday March 20th, the government responded with a declaration from a low-ranking official that “On March 15, 2025, two flights carrying aliens being removed under the AEA departed U.S. airspace before the Court’s minute order of 7:25 PM EDT, and before the Court’s oral statements during the hearing.”
Annoyed, Judge Boasberg termed this response “woefully insufficient” and gave the administration until Tuesday March 26th to do better. Among other things, the government’s response implies that the third known plane took off after the order, does not give the times, and does not address the “turning the planes around” part.
On Friday March 21, 2025, at a hearing ostensibly about the merits of the application of the Alien Enemies Act, Judge Boasberg accused the government attorney of using “intemperate and disrespectful language that I can’t remember seeing from the United States” in papers filed with the court and suggested that the attorney failed to appear at a hearing last Monday because he knew he had knowingly violated Boasberg’s order about turning the planes around.
“The government is not being terribly cooperative at this point,” the judge stated, “but I will get to the bottom of whether they violated my order and who was responsible.” He also expressed skepticism that Trump could apply the 1798 statute as he did.
There will be a hearing Monday March 24, 2025 at the D.C. Court of Appeals on the government’s appeal of Judge Boasberg’s initial order. One of the three judges to hear the case was appointed by George H.W. Bush, one by Obama and one by Trump.
To complete the government’s pretzel logic, on Friday March 21st, Trump told reporters that he did not sign the Alien Enemies Act order on which his entire case is based.“I don’t know when it was signed, because I didn’t sign it,” he said. “Other people handled it. But Marco Rubio’s done a great job. And he wanted them out, and we go along with that. We want to get criminals out of our country.”
So, it is either Marco or the autopen.
But the main action has been outside of court.
Trump posted that Judge Boasberg, first appointed to the bench by President George H.W. Bush and was appointed as the presiding judge on the FISA national security court by Chief Justice John Roberts, is a “radical left lunatic” and urged impeachment.
Trump Deputy Chief-of Staff Stephen Miller termed the judge’s order “without doubt the most unlawful order a judge has issued in our lifetimes, continuing that “a district court judge has no authority to direct the national security operations of the executive branch. The president has operated the absolute apex of his constitutional authority.”
More generally, Miller tweeted, “Unelected rogue judges are trying to steal years of time from a 4-year term. It’s the most egregious theft one can imagine: robbing the vote and voice of the American People. Any ‘conservative’ legal commentator who fails to condemn this lunacy has lost all credibility forever.”
Attorney General Pam Bondi said the removal flights would “absolutely” continue despite the clear order from Judge Boasberg, saying that “this judge has no right to ask those questions. You have one unelected federal judge trying to control foreign policies, trying to control the Alien Enemies Act, which they have no business presiding over… The judge had no business, no power to do what he did.”
All of this earned a well-publicized and rare statement from Chief Justice John Roberts that impeachment is not appropriate for a decision with which one disagrees. For that, one should appeal, which the government has done. The acquittal of Supreme Court Justice Samuel Chase by the Senate in 1805 established a precedent that federal judges could not be removed from office for errors in judgment or partisan behavior, but only for indictable criminal acts.
There is no chance that any judge will be impeached and convicted for ruling against Trump, which would require 67 votes in the Senate. However, the specter of physical danger looms over the justice system.
In 2020, there was an attack on the home of federal judge Esther Salas that killed her 20 year-old son and critically wounded her husband. Additionally, in 2022, Nicholas Roske travelled from California to Maryland and was charged with attempted murder after he was arrested outside the home of Justice Brett Kavanaugh.
In 2024, Panos Anastasiou, a 76-year-old Alaska resident, was arrested and charged with sending more than 465 threatening messages primarily targeting Justices Samuel Alito and Clarence Thomas through the Supreme Court’s public website. According to the U.S. Marshals Service, threats against federal judges have doubled in recent years, affecting judges appointed by both Democratic and Republican administrations.
More to come. My prediction is that they are picking on the wrong judge.
Other Activity This Week in Trump Litigation
There are now 132 cases, two of which are closed.
March 17, 2025
Ninth Circuit Denies Stay of Northern California Judge Alsup’s Order That Fired Probationary Workers Be Reinstated. (see last week’s article for details) Also, on Wednesday, the government filed a document that appears to state that the employees from the Department of Defense whom Alsup ordered reinstated remain on one form of leave or another.
Temporary Restraining Order to Pay Corporation for Public Broadcasting (CPR) Denied U.S. District Judge Timothy Kelly denied a request for a court order for the Federal Emergency Management Agency to pay $2 million in grant money for modernizing the national emergency weather alert system. The funds had been appropriated by congress. The judge said that CPR had not shown irreparable injury, a requirement for a temporary restraining order.
March 18, 2025
Musk’s Participation in DOGE’s Shutdown of USAID Was Likely Unconstitutional A Maryland federal judge issued a preliminary injunction, holding that plaintiffs likely could show Musk’s actions were unconstitutional under the Appointments Clause, because he “acted as an officer of the United States without having been duly appointed to such a role, and Separation of Powers, because he exceeded the authority of the Executive Branch and encroached on the powers of the Legislative Branch to create and eliminate agencies. The judge ordered Musk and the other defendants to reinstate all USAID employees and contractors and not evade the order by tactics such as putting them on leave.
March 19, 2025
Transfer of Imprisoned Transgender Women Halted. D.C. Judge Royce Lamberth granted an injunction that transgender women not be transferred to a men’s prison per a Trump Executive Order.
Removed U.S. Institute for Peace Board Members Denied TRO. D.C. Judge Beryl Howell denied a TRO to reinstate removed Board members. Although some allegations were “deeply troubling,” the facts were too unclear. The judge set an expedited briefing schedule for a further determination with hearing to be held the week of April 28, 2025.
March 20, 2025
Trump Rescinds Order Targeting Paul, Weiss Law Firm. Trump was punishing the Democratic leaning firm for suing January 6th insurrectionists. Paul, Weiss chair agreed to donate $40 million to pro bono legal services over four years (out of an annual $200 million of pro bono work) on programs such as assisting veterans and fighting antisemitism. The White House said the firm would audit its employment practices, eliminate any DEI practices, and hire, represent Republicans and Democrats alike and promote only on merit.
This capitulation has been derided in the legal community. Per Michal Schmidt in the New York Times, the agreement was negotiated by an attorney from the Trump-friendly Biglaw firm Quinn, Emmanual, which had agreed to represent Paul, Weiss. Paul, Weiss had been expected to fight as did Perkins, Coie, which obtained an injunction against Trump’s actions last week.
Paul, Weiss was proudly the first New York white shoe law firm to, among other things, hire Jews and to have African American associates. It claims that this agreement reaffirmed its longstanding policies.
DOGE prevented From Accessing Unredacted Social Security Data. Maryland U.S. District Judge Ellen Hollander issued a TRO preventing Musk and DOGE from accessing Social Security Administration systems containing personal information. Judge Hollander stated that “the DOGE Team is essentially engaged in a fishing expedition at SSA, in search of a fraud epidemic, based on little more than suspicion. It has launched a search for the proverbial needle in the haystack, without any concrete knowledge that the needle is actually in the haystack.”
The situation became bizarre later in the week when Leland Dudek, the acting Social Security Commissioner said that he might have to shut down the entire system because he considered many employees to be affiliated with DOGE. He later reversed himself after Judge Hollender clarified her order and pointed out that Dudek’s assertions were “inaccurate.”
March 21, 2025
Trump Moves to Disqualify Judge in Perkins Coie Case. The government moved to disqualify Judge Beryl Howell from the case where the law firm Perkins Coie is fighting Trump’s disabling Executive Order.
The motion said that Judge Howell’s “enabling” of “disgraced former prosecutor Jack Smith” as well as a “wrongful” suggestion that “President Trump is an authoritarian” would lead “reasonable observers may view this court as incapable of fairly adjudicating” the case. She also commented that Trump “has a bee in his bonnet” about the 2016 Steele Dossier of allegations against him.
Normally, a judge’s prior rulings are not grounds for disqualification. But times are not normal and Judge Howell definitely is not MAGA, so we shall see.
Columbia complies. Columbia offered to change its protest policies, ban masks except for religious and health reasons and appoint a senior vice provost to oversee the Middle Eastern, South Asian and African Studies Departments. There will be a new definition of antisemitism that includes excluding Jews based on their attitudes toward Israel and celebrating violence against Israelis or Jews.
There are those who think that with a $15 billion endowment, Columbia should tell Trump to pound sand.
March 22, 2025
Trump Throws Brushback Pitch at Lawyers Who Seek Relief in Court. In a White House Memo issued late Saturday, Trump, citing his usual litany of inaccurate claims, advised federal agencies to pursue sanctions against attorneys. The order mentions dishonest or unethical conduct, but Trump’s ideas of these concepts are not the same as those that are generally accepted or found in the dictionary.
Stephen Kaus is a retired Alameda County Superior Court Judge. @stephenkaus on X. @stephenkaus.bsky.social on Bluesky.
