Sunday, July 30, 2017

At White House, Irregular Order as Things Fall Apart

      Arizona's John McCain was praised from all sides when he returned to the Senate floor from his hospital bed on Tuesday [July 25] to plead for a return to "regular order" in the Republican-led drive to repeal and replace Obamacare. At the other end of Pennsylvania Avenue, however, it was irregular order as usual the next day when President Trump used a series of early morning tweets to announce that transgender individuals would no longer be allowed in military services.
      Trump's abrupt three-tweet fiat early Wednesday morning came with Defense Secretary Jim Mattis on vacation and the Pentagon and the service chiefs awaiting completion later this year of a study on how to implement the Obama administration's decision to lift the prior ban on transgender individuals in the military. Trump claimed to have consulted with "my Generals and military experts" before making the decision, but two news cycles later none of those supposedly consulted in advance had been identified.
      At the least, Mattis was not consulted but "informed" of the decision on Tuesday, according to the Wednesday briefing by newly White House press secretary Sarah Huckabee Sanders. The Joint Chiefs of Staff issued a memorandum to the services on Thursday clarifying that no presidential order had been received and nothing would change until and unless an order was received.
      The transgender ban, widely denounced and widely depicted as unlikely to survive the inevitable legal challenge, was one of two body blows the Trump administration delivered to the LGBT community on Wednesday. The Justice Department filed a friend-of-the-court brief the same day with the federal appeals court in New York City to argue against recognizing anti-LGBT discrimination to be illegal under the Civil Rights Act of 1965.
      The brief — signed by lawyers in Justice's civil division, not the civil rights division — comes in a case, Zarda v. Altitude Express, to be argued in late September before the full Second Circuit appeals court. The court's eventual decision will be a tie-splitter of sorts between conflicting decisions on the issue within the past year by the Seventh and the Eleventh Circuit courts.
      The brief puts the Justice Department at odds with the Equal Employment Opportunity Commission (EEOC), which has taken the position for several years that Title VII's prohibition against discrimination on the basis of sex necessarily precludes discrimination on the basis of sexual orientation or gender identity as well. Robert Loeb, a Washington lawyer who served in Justice's civil division for 20 years, noted that the civil division's lead role in the case signaled a "political decision" behind the position. "It shows that it's not being treated as a civil rights issue," he said.
      The news of the Justice Department brief went viral in the LGBT community and in legal circles generally, but it was buried in the day's news coverage by the continuing chaos in the White House. The transgender ban is only the latest of many examples of policymaking by tweet in Trumpland. Trump has been using 140-character tweets for the past two weeks to berate his attorney general, Jeff Sessions, and all but beg him to resign to spare the president the trouble of firing him.
      Trump's discontent with Sessions originates with the attorney general's ethically required decision to recuse himself from overseeing the investigation of any Trump campaign connections to Russian agents seeking to influence the  2016 election. But Trump added to the bill of particulars by describing Sessions as "weak" and pressing him to investigate and presumably prosecute his Democratic opponent Hillary Rodham Clinton and any of the "leakers" responsible for damaging disclosures from within the administration
      Leaks are also on the mind of the White House's new communications director, Anthony Scaramucci, who  was sucking up to his boss by publicly promising to crack down on supposed leakers working right there at 1600 Pennsylvania or next door in the old Executive Office Building. Scaramucci is sucking up to his boss by depicting leaks and leakers as the reason why Trump's legislative initiatives are mired in congressional quicksand. Scaramucci was promising to fire any leakers inside the White House and naming the on-his-way-out chief of staff Reince Preibus as one of those in his crosshairs.
      Even with chaos at the White House and in the Senate, Trump's supposed transgender ban still ranks near the top of the list of self-inflicted wounds. Trump's stated rationale was to avoid burdening the military with "tremendous medical costs and disruption." That rationale was actually contradicted by a study already completed by the respected, nonpartisan RAND Corporation.
     The impetus for the ban came not from the military but from Capitol Hill, where the House was tied up on an amendment to prohibit the military from paying for the medical costs of transitioning for transgender service members. The RAND study estimates the number of current transgender service members at 11,000 and says medical costs would be a pittance: $2 million to $8 million a year, less than the military spends on erectile dysfunction meds.
      Asked whether current transgender service members would be expelled, Sanders had no answer other than time will tell. That was also Trump's verbatim answer when asked whether Sessions would stay in office. On both of those issues, Trump was suffering defections during the week from emboldened Republicans on Capitol Hill. The disarray calls to mind the line from Yeats' famous poem: "Things fall apart."

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