Trump admin asks SCOTUS to let it enforce anti-trans military ban during litigation

The request comes in the wake of two district court orders finding that the ban is likely unconstitutional. Also: More upheaval in DOJ's Civil Rights Division this week.

The Justice Department asked the U.S. Supreme Court on Thursday to allow it to implement President Donald Trump’s anti-transgender military ban while the government appeals a loss before the trial court.

The filing comes amidst an extreme effort from the Trump administration to target trans people and is one of several cases before the justices in which trans people’s lives are central to the questions at the court.

U.S. District Judge Benjamin Settle issued an injunction on March 27 blocking the Trump administration from enforcing the ban nationwide because he found it was likely unconstitutional, and the U.S. Court of Appeals for the Ninth Circuit denied the government’s request for a stay of that order pending appeal on April 18.

“In this case, the district court issued a universal injunction usurping the Executive Branch’s authority to determine who may serve in the Nation’s armed forces—despite this Court previously staying injunctions against a materially indistinguishable policy [during the first Trump administration],” the DOJ lawyers wrote on Thursday, referring to a policy issued under then-Defense Secretary Jim Mattis.

The government is asking for a stay of the injunction during the appeal, allowing it to begin kicking out trans service members from the military. Alternatively, DOJ asks for the injunction to be limited to the plaintiffs in the case, which would then allow the government to begin kicking out all trans service members aside from the plaintiffs in the case.

Justice Elena Kagan, as the circuit justice for the Ninth Circuit to whom the request was directed, has ordered a response to be filed by the plaintiffs by 5 p.m. May 1.

Settle, a George W. Bush appointee in Washington state, was the second judge to issue an injunction blocking the ban, following one issued earlier by U.S. District Judge Ana Reyes, a Biden appointee in Washington, D.C.

The U.S. Court of Appeals for the D.C. Circuit, however, put Reyes’s injunction — also with nationwide effect — on hold with an administrative stay while the appeals court could hear arguments over the government’s request for a stay pending appeal. The appeals court heard those arguments earlier this week, on April 22.

As such, the DOJ request comes to the court in a slightly unusual posture, given that an order in the Ninth Circuit case (Shilling v. U.S.) would not necessarily resolve the D.C. Circuit case (Talbott v. U.S.).

At the same time, given Kagan’s timeline for a response in Shilling, I would not be surprised to see the D.C. Circuit panel to try to issue its ruling on the stay request in Talbott before the Supreme Court can issue its order in Shilling to allow for consolidation of requests as the Supreme Court (as we saw in the challenges to Trump’s executive order to end birthright citizenship).

Thursday’s request at the Supreme Court comes two days after the Supreme Court heard arguments in a case about parents’ choices over “gender and sexuality“ information presented to their children in school, arguments that included alarming questions from some justices regarding LGBTQ people. Additionally, the court still has pending before it the key case it heard in December over Tennessee’s ban on gender-affirming medical care for transgender minors.

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Dhillon’s dismantling of DOJ’s Civil Rights Division continues

Last week, Law Dork reported on case action and front office changes in the Justice Department’s Civil Rights Division that have quickly followed Assistant Attorney General Harmeet Dhillon’s confirmation to lead the division.

This week, Dhillon’s efforts to end the Civil Rights Division as it has existed delved deeper into the division — targeting section leadership across the division.

As reported by Reuters on Wednesday and NBC News on Thursday, this week’s shakeup reached into the leadership of several of the sections of the division — with likely follow-on implications for staff attorneys and other employees in the sections.

Law Dork can report that the chief of the Special Litigation Section, for example, was reassigned to the Freedom of Information Act office. Regan Rush, the now-reassigned chief, has been in the Special Litigation Section since 2010.

The chief of the Disability Rights Section for more than a decade, Rebecca Bond, meanwhile, was reassigned to the division’s Complaints Adjudication Office, sources have told Law Dork.

Many chiefs and deputy chiefs across several sections — including, at least, the Special Litigation, Disability Rights and Voting sections — were reassigned to either the Complaints Adjudication Office or the FOIA office, Law Dork has learned, with one source estimating around a dozen people were reassigned.

It is important to note that these changes are not just about these leaders. The reassignments come as the Civil Rights Division is “offering” another Deferred Resignation Program, as Law Dork reported previously. These reassignments, multiple sources tell Law Dork, will likely increase the number of other employees who take the offer.

As Reuters reported, these reassignments also come as Dhillon has provided new “mission statement” information to the various sections.

The changes are stark.

For the Immigrant and Employee Rights Section, for example, here is how DOJ’s own website describes the section’s responsibilities:

Here is Dhillon’s “mission statement” for IER, which turns the mission on its head:

Immigrant and Employee Rights Section

The Immigrant and Employee Rights (IER) Section of the Civil Rights Division will protect American workers through the "Protecting U.S. Workers Initiative," which is consistent with Presidential Executive Orders and the direction from the Attorney General. IER will actively target, investigate, and prosecute companies that unlawfully discriminate against U.S. workers in favor of foreign visa workers. Further, while protecting immigrants from unlawful abuses under IRCA, IER will work to educate employers and apply prosecutorial discretion when it comes to technical violations, particularly under Title 8 U.S.C. Section 1324. Every U.S. worker should be protected to the fullest extent of the law, while employers should not fear their legal duty to verify the eligibility of workers to work in the United States.

For the Housing and Civil Enforcement Section, meanwhile, the change is not so much upending the section as it is cutting off parts of it. Here is from DOJ’s website:

Here is Dhillon’s “mission statement” for the section:

Housing and Civil Enforcement Section

The Housing and Civil Enforcement (HCE) Section of the Civil Rights Division will promote and fully enforce the Servicemembers Civil Relief Act (SCRA) to protect our men and women in uniform on active duty, which is consistent with Presidential Executive Orders and the direction from the Attorney General. In addition, HCE will aggressively enforce Religious Land Use And Institutionalized Persons Act (RLUIPA) across the country to ensure that religious freedom reigns strong in America, which necessarily includes that states and local cities and counties' land use zoning and regulations are consistent with the First Amendment and do not discriminate based on religion or a religious type of land use. The aggressive and even-handed deployment of RLUIPA to restore religious liberty will be a top priority. HCE will also focus on challenges to racially discriminatory lending programs. All Americans are entitled to equal opportunity in housing, lending, and credit, and protection of religious expression and land use.

The deadline for people to “apply” for the second Deferred Resignation Program is April 28, with employees being notified by May 12 if their resignation has been accepted.

Dhillon’s actions appear to be aimed at getting that number as high as possible.

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Chris Geidner can be reached via Signal: crg.32

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