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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. One of the

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Speaker 1: most powerful federal appellate courts in the country has handed

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Speaker 1: President Tromp his first victory in his ban on transgender

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Speaker 1: Americans serving the military. The DC Court of Appeals lifted

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Speaker 1: a lower court's injunction against the new policy, but the

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Speaker 1: policy can't be instituted because injunctions from three other lower

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Speaker 1: courts remain in place. Joining me is Neil Kimcaugher, professor

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Speaker 1: at Georgia State University College of Law. Neil, how did

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Speaker 1: the d C Circuit come to the conclusion that public

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Speaker 1: interests outweighed the injunction to stop the policy? Well, the

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Speaker 1: DC Circuit's opinion was just overwhelmingly deferential to the President

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Speaker 1: and to his determinations contained in the memorandum, And in

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Speaker 1: a way, there's really nothing unusual about that. Courts really

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Speaker 1: do not like the second guests the president or the

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Speaker 1: military on those kinds of matters, so so in that sense,

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Speaker 1: it's a it's a sort of ordinary kind of ruling, um,

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Speaker 1: So much so that the d C. Circuit even decided

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Speaker 1: that they were not going to publish their opinion. Neil.

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Speaker 1: The court said that courts have to give deference to

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Speaker 1: the professional judgment of military authorities with these kinds of policies.

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Speaker 1: But the military was welcoming transgender people until President Trump

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Speaker 1: tweeted that transgender people should be banned and demanded the

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Speaker 1: military change its policy. So whose judgment is the court

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Speaker 1: relying on here, the militaries or Trumps. Well, here's the

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Speaker 1: thing about deference. Um. It sounds like what the court

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Speaker 1: is doing is sort of valuing the president's determination, and

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Speaker 1: often that happens, But in this case, that's actually what

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Speaker 1: the court said. Rather, what the court said is we

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Speaker 1: have to defer to the president's judgment because we the

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Speaker 1: judges are incompetent in this area. In other words, judges

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Speaker 1: don't know sound military policy, and so for that reason,

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Speaker 1: they're not going to second guess the president. Right now,

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Speaker 1: we in the public don't have to defer to the president.

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Speaker 1: And there is really every reason to think that the

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Speaker 1: president's order is based on um animus towards transgender people

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Speaker 1: and to giving a political victory to evangelical conservatives. A

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Speaker 1: court may not feel competent to make that kind of

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Speaker 1: political judgment, but those of us who live in the

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Speaker 1: world shure can. So. The d C Circuit is the

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Speaker 1: first circuit court to decide this issue, but there are

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Speaker 1: lower court injunctions in California, Washington State, in Maryland might

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Speaker 1: Circuit courts in those jurisdictions, which includes the Ninth Circuit,

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Speaker 1: rule differently on this yes right, And if you think

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Speaker 1: of the travel band litigation, there's every reason to expect

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Speaker 1: that they will right. So some judges, at least on

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Speaker 1: the Ninth Circuit, have been willing to be not quite

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Speaker 1: so deferential as the d C Circuit to the president's

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Speaker 1: statement that this order is based on military policy, not

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Speaker 1: based on either antipathy towards transgender people or based on

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Speaker 1: political calculations. Just some up the argument of the advocates

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Speaker 1: of transgender service in the military. What are their basic

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Speaker 1: arguments here? The basic argument is that transgender people can

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Speaker 1: do the job, and you know, military recruiting fell short

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Speaker 1: last year. There is a real dire need for so

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Speaker 1: to speak, all hands on deck, and as long as

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Speaker 1: transgender people can serve on deck, and there's every reason

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Speaker 1: to know that they can, because in fact, they have

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Speaker 1: been doing so for years now, then we ought to

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Speaker 1: take advantage of that talent pool. The Trump administration, before

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Speaker 1: this ruling came out, asked the Supreme Court to review

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Speaker 1: the ban right away and basically went against tradition and

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Speaker 1: Supreme Court precedent by saying, don't worry about the circuit courts,

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Speaker 1: go right to this issue. We need you to decide

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Speaker 1: it right away. That's still before the court, and now

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Speaker 1: they have this opinion before them. Are they likely to

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Speaker 1: take this up? I think they're likely to take it

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Speaker 1: up at some point. I think they're really unlikely to

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Speaker 1: take it up on the kind of expedited basis that

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Speaker 1: the that the Justice Department has requested that would be

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Speaker 1: truly extraordinary, and this is the kind of political issue

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Speaker 1: that the Supreme Court really wants to have the benefit

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Speaker 1: of time and consideration and development of the arguments in

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Speaker 1: the lower courts. Since you're a constitutional law professor, what's

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Speaker 1: your take on I think it's about four times that

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Speaker 1: the Trump administration has gone to the Supreme Court and

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Speaker 1: set emergency emergency, please decide this before the Circuit Court does.

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Speaker 1: What's your take on how the Supreme Court views that? Well,

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Speaker 1: I think it depends on who on the Supreme Court

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Speaker 1: you're talking about. I think Chief Justice Roberts has to

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Speaker 1: hate it, and he's the one who is the most

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Speaker 1: punctilious about the Supreme Courts process, about lower courts and

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Speaker 1: giving lower courts they're due and having everything appear and

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Speaker 1: actually be quite regular. It may be that some of

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Speaker 1: the other judges on the Supreme Court, though I want

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Speaker 1: just want to get to the issue, and don't feel

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Speaker 1: any particular benefit from hearing from lower court judges on

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Speaker 1: these kinds of issues that they know are going to

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Speaker 1: get to the Supreme Court anyway. I read that this

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Speaker 1: is causing chaos in the military, and it's certainly causing

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Speaker 1: confusion because no one knows about the transgender band. What

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Speaker 1: will happen. Can that the whipsaw effect of changing policies

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Speaker 1: so frequently have any impact on a court's decision. Yes,

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Speaker 1: it can have a tremendous impact. For one thing, it

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Speaker 1: makes the judgments look like they're not based on sound

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Speaker 1: military policy, and so then the rationale for giving deference

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Speaker 1: to the executive branch is seriously undermined. All right, thank

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Speaker 1: you so much, Neil. That's Neil Kim's coffee. Is a

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Speaker 1: professor of Constitutional Law, Georgia State University College of Law

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Speaker 1: and Supreme Court. Note here the Supreme Court says that

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Speaker 1: Justice Ruth Bader Ginsburg is missing oral arguments today for

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Speaker 1: the first time in more than twenty five years, as

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Speaker 1: she recuperates from cancer surgery last month. Thanks for listening

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Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen

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Speaker 1: to the show on Apple Podcasts, SoundCloud, and on Bloomberg

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Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg

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Speaker 1: the compatient under compa