Can POTUS, in his Capacity as Commander in Chief, Change Military Policy Via Twitter?

By Summer 2017 M-VETS Student-Advisor

On July 26, 2017, President Trump issued a series of three tweets addressing transgender service in the U.S. Military.  He declared:[1]

The President’s “policy pronouncement” directly contradicts implemented DOD policy still actively listed on DoD’s website here. On July 28, 2015, then Secretary of Defense, Ash Carter, issued a Memorandum entitled, “Transgender Service Members” that allowed for open transgender service and stated:

…no Service member shall be involuntarily separated or denied reenlistment or continuation of active or reserve service on the basis of their gender identity, without the personal approval of the Under Secretary of Defense for personnel and Readiness. This approval authority may not be further delegated.[2]

Following Secretary Carter’s July 2015 Memorandum, DoD Instruction 1300.28 was issued and became effective October 1, 2016. It provides guidance for, among other things, how a service member can transition gender while serving.[3] In addition, the DOD issued “Transgender Service in the U.S. Military, An Implementation Handbook” in 2016.[4] The 72 page Handbook is, “designed to assist our transgender Service members in their gender transition, help commanders with their duties and responsibilities, and help all Service members understand new policies enabling the open service of transgender Service members.”

Article II Section 2 of the U.S. Constitution, states that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” As Commander in Chief, the President’s powers are quite broad. However, whether the President, in his capacity as Commander in Chief, has the ability to change DoD policy via Twitter is an open question.

Common sense would dictate that, without a formal modification to DoD regulations, an announcement via Twitter would not effectuate a policy change. The President of the National Institute for Military Justice, Dru Brenner-Beck suggested that, “a tweet doesn’t really give you policy.”[5] She further indicated that under normal procedure, the President would issue an executive order instructing the Pentagon to amend its personnel policy that wouldn’t begin without extension coordination between DoD and various parts of the military.[6] Following that, Implementation Guidance, or formal directives would then be expected from the Secretary of Defense according to U.S. Army Chief of Staff Gen. Mark Milley.[7]

Because of the unconventional nature of the President’s “policy pronouncement,” its impact on the DODs implemented policy caused massive confusion. However, at this juncture, the Pentagon does not seem inclined to execute policy based on the President’s tweets. On July 27, a day after President Trump announced his transgender position on Twitter, Chairman of the Joint Chiefs of Staff, Gen. Joseph Dunford, Jr., issued a Memorandum to Service Chiefs, Commanders and Senior Enlisted Leaders stating:

I know there are questions about yesterday’s announcement on the transgender policy by the President. There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.[8]

Following the President’s Tweets, a senior military official stated, “I hope our commander in chief understands that we don’t transmit orders via Twitter, and that he can’t, either.”[9] While it is legally ambiguous as to what the President’s tweets can do – he would be wise to heed this advice. Rash statements of policy on intricate issues serve no one’s interest, and the Pentagon should continue to require more than a tweet to begin the formulation of new policy.

[1] Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 8:55 a.m., 9:04 a.m., 9:08, a.m.), https://twitter.com/realDonaldTrump.

[2] https://www.defense.gov/Portals/1/features/2016/0616_policy/memo-transgender-service-directive-28-July-2015.pdf.

[3] https://www.defense.gov/Portals/1/features/2016/0616_policy/DoD-Instruction-1300.28.pdf.

[4] https://www.defense.gov/Portals/1/features/2016/0616_policy/DoDTGHandbook_093016.pdf.

[5] http://www.politico.com/story/2017/07/26/trump-transgender-troops-ban-240998.

[6] Id.

[7] http://dailycaller.com/2017/07/27/we-dont-execute-policy-based-on-a-tweet-pentagon-yet-to-receive-trumps-transgender-ban-order/.

[8] https://uk.reuters.com/article/uk-usa-military-transgender-exclusive-idUKKBN1AC2FB.

[9] https://www.reuters.com/article/us-usa-military-transgender-exclusive-idUSKBN1AC2FN?il=0.