Publius-Huldah's Blog

Understanding the Constitution

Transgenders in the Military – Who Decides: Congress, the President, or Federal Judges?

By Publius Huldah

In a case now pending before the US District Court for the District of Columbia,1 the trial judge recently granted a preliminary injunction which purports to temporarily stop the Trump Administration from banning so-called “transgender” persons from serving in the Military.

But we will look at the real issue: Does the Judicial Branch of the federal government have constitutional authority to require the Legislative and Executive Branches of the federal government to permit transgender persons to serve in the Military?

Instead of going along with what everybody says – or expounding on one’s personal views on the topic –let us consult and obey the US Constitution:

· Article I, Section 8, clauses 11 – 13, delegate to Congress the powers to declare War, grant Letters of Marque and Reprisal, make rules concerning Captures on Land and Water; raise and support Armies; and to provide and maintain a Navy.

· Article I, Section 8, clause 14, delegates to Congress the power “To make Rules for the Government and Regulation of the land and naval Forces;”

· Article II, Section 2, clause 1, says, “The President shall be Commander in Chief of the Army and Navy of the United States…”

In Federalist Paper No 69 (6th para), Alexander Hamilton says:

“…The President is to be commander-in-chief of the army and navy of the United States. … his authority … would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy…”

So! All the powers over the Military which have been delegated by the Constitution are vested in the Legislative and Executive Branches of the federal government.

The Judicial Branch has no role to play in the organizing and operation of the Military Forces.

Pursuant to Article I, Section 8, clauses 11-14, Congress alone has the delegated authority to decide who may serve in the Military. If Congress issues Rules banning transgender persons from serving, then it is the President’s job, as Commander in Chief, to enforce those rules.

Accordingly, instead of participating in the litigation before the federal district court, the Trump Administration should instruct the federal judge on the long-forgotten concept of “Separation of Powers” and advise the court, “You have no jurisdiction over the Military – we will not participate in this lawsuit.

1. Military courts and military lawyers in a nutshell

The Judicial Branch of the federal government was created by Article III, US Constitution. That Article created the supreme Court, and authorized Congress to ordain and establish, from time to time, such inferior courts as needed. Pursuant to that authority, Congress has established 94 federal district courts (where most federal trials are conducted), and 13 US Circuit Courts of Appeals.

The US Military has its own court system which is not part of the Judicial Branch of the federal government. The military courts are “Article I Courts” created by Congress in the Uniform Code of Military Justice (UCMJ).2 They consist of trial courts where courts-martial are conducted; each Branch of Service has its own “Court of Criminal Appeals”; and the “US Court of Appeals for the Armed Forces” hears appeals from the Services’ Courts of Criminal Appeals.

And when military commanders need legal advice, they get it from their own Service lawyers (this is one of the duties of lawyers in the Judge Advocate Generals’ Corps).

The Judicial Branch of the federal government has no constitutional authority over the US Military.

2. Federalist Paper No. 80 and the meaning of “arising under”

Some may assert that the Judicial Branch has authority to determine who may serve in the Military because Article III, Section 2, clause 1 says,

“The judicial Power shall extend to all Cases…arising under this Constitution and the Laws of the United States…”

But they would be wrong. In Federalist No. 80, Alexander Hamilton explains the jurisdiction of the courts created by Article III: In the 2nd, 3rd, 4th, and 13th paragraphs, he shows that the purpose of the language quoted just above is to authorize the Judicial Branch to enforce the Constitutionnot re-write it; and to enforce constitutional federal lawsnot re-write them.

Furthermore, in Federalist No. 81 (8th para), Hamilton addresses judicial encroachments on legislative authority, and reminds us that such encroachments need never be a problem because of the courts’ “total incapacity to support its usurpations by force”; and because Congress may protect the Country from usurping federal judges by impeaching, trying, convicting, and removing them from office.

3. Political Questions

Accordingly, when a power is vested by the Constitution in the Legislative or Executive Branches [the “political branches”] the federal courts [the “legal branch”] have traditionally refused to interfere.

In Martin v. Mott, 25 US 19 (1827), the Supreme Court considered the Militia Act of 1795 which authorized the President to call forth the militia when he judged it necessary to repel an invasion.3 The Court pointed out that the power had been confided [entrusted] by Congress to the President, and

“We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.”

In Foster v. Neilson, 27 U.S. 253 (1829), which involved a dispute between the United States and Spain over territory, the Court held that once those departments [Executive and Legislative Branches] “which are entrusted with the foreign intercourse of the nation” have asserted rights of dominion over territory, “it is not in its own courts that this construction is to be denied”. “A question … respecting the boundaries of nations, is … more a political than a legal question; and … the courts of every country must respect the pronounced will of the legislature.”

Likewise, the power to determine who may serve in the Military has been delegated to the Legislative Branch of the federal government i.e., Congress. The Judicial Branch may not substitute its judgment for the Will of the Legislative Branch; and if it attempts to do so, Congress should employ the remedies suggested by Hamilton in Federalist No. 81.

4. The President’s “check” on the federal courts

Finally, let’s look at Federalist No. 78 (6th para) where Hamilton – unlike the pundits of today – tells us the Truth about the powers of federal courts:

“…The judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” [boldface mine; caps are Hamilton’s] 4

An informed President who is a manly man will ignore ultra vires orders of the Judicial Branch.

5. Conclusion

Let us put the federal courts in their proper place! Congress and the President have the recognized power to refuse to go along with unconstitutional or ultra vires acts of the Judicial Branch; and their Oaths of office require them to do so. Congress also has the power to rid us of usurping federal judges via the impeachment process.


1 The US District Court for the District of Columbia was established by Congress pursuant to Art. III, §1, US Constitution.

2 Congress’ authority to create the Military Courts is derived from Art. I, §8, cl. 14, US Constitution.

3 Article I, §8, clause 15, delegates to Congress the power, “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

4 I trust you see why Hamilton is viciously smeared. The relentless attacks on our Framers have a purpose: Take them down – and our Foundation is destroyed. Hamilton wrote most of The Federalist Papers, which Madison and Jefferson recognized as the best evidence of the genuine meaning of our Constitution.  What effect do these constant attacks on Hamilton have on peoples’ respect for The Federalist Papers? Beware of false friends who undermine our Foundation; and of jealous men whose claim to fame is that they attack Hamilton.

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November 9, 2017 - Posted by | Article I courts, Commander in Chief, political questions, Transgenders in the military, Uniform Code of Military Justice (UCMJ) | , , , , , , , , , , , , ,


  1. Good Morning Ms. Huldah,
    Happiest of New Years to you and yours.

    The Department of Justice is getting involved with this issue and it appears there might be black hat, bad guy, “Deep State” tactics going on at the DOJ to undermine the President.

    Can the president through an executive order “fire” or lay off these troublemakers at the DOJ? Like when Reagan fired airport traffic controllers? Thank you.


    Comment by Penelope | January 3, 2018 | Reply

    • Some of those at the DOJ serve at the President’s pleasure and he can fire them in a heartbeat. The Attorney General, Jeff Sessions, is one of them who is a political appointee and can be fired. Jeff Sessions seems to be too weak to go against the tide – perhaps he should go. I don’t know who the other political appointees are – but they could be fired also in a heartbeat.

      But those who are under “civil service” can’t be fired – it’s said to be impossible to get rid of those worthless people.

      How did Reagan fire the air traffic controllers? According to this article, in 1955, Congress made such strikes punishable by fines or a one-year jail term — a law the Supreme Court upheld in 1971. So when the air traffic controllers ignored the order ordering them to return to work, Reagan properly fired them.


      Comment by Publius Huldah | January 3, 2018 | Reply

  2. Long live Publius Huldah and may God richly bless you. Thank you for all that you have done to educate us and defend the Constitution and our federal system.


    Comment by Penelope | November 27, 2017 | Reply

    • Thank you! Write any time!


      Comment by Publius Huldah | November 27, 2017 | Reply

  3. So, basically, you’re sayin’, as I often do, that the Judiciary has no lawful Subject Matter Jurisdiction?


    Comment by Diamondback | November 21, 2017 | Reply

    • The Judicial Branch of the federal gov’t (the Article III courts) have no subject matter Jurisdiction over the US military forces. The Constitution delegates power over the Military Forces to CONGRESS and to the PRESIDENT. The federal courts have no power to dictate to CONGRESS or to the PRESIDENT how they exercise powers delegated by the Constitution to them. Lawyers once understood that federal courts have no jurisdiction over “political questions”.

      But the brainwashed brain-dead lawyers and judges of today don’t seem to have any understanding of this concept. E.g., only Congress has the power to declare war (Art. I, Sec. 8, clause 11). Once CONGRESS declares war, the federal courts have no authority to meddle and say, “you have no just cause to declare war” – that’s a political question for CONGRESS alone to decide.

      Watch for my upcoming paper – I go more into the “political question” bar to federal court jurisdiction.


      Comment by Publius Huldah | November 21, 2017 | Reply

  4. Very interesting


    Comment by Union News page too much FB Censure | November 11, 2017 | Reply

    • It really is!


      Comment by Publius Huldah | November 11, 2017 | Reply

  5. Excellent article.


    Comment by Jim Compton | November 11, 2017 | Reply

    • Thank you.


      Comment by Publius Huldah | November 11, 2017 | Reply

  6. Unfortunately, very few Americans seem the least bit interested in upholding the Constitution of the United States. The vast majority of those we elect to represent us in the House and Senate, both Democrats and Republicans, are totally ignorant of the Constitution, some intentionally so, or they just could not care less, they are under the false impression that the Constitution means whatever they say it does. This is why this nation is in very serious trouble. It is my sincere belief that we, as a nation, are already deeply into a Constitutional Crisis.


    Comment by Sayedna Gregori | November 10, 2017 | Reply

    • Thank you, Abouna Gregori!

      Yes, as you well know, God judges nations in time and in history. And for us, the writing is on the wall.

      The most alert of the People will follow the latest news story – and the hot topic of the day – but they aren’t in to Learning The Declaration & Constitution. That’s not fun!


      Comment by Publius Huldah | November 11, 2017 | Reply

  7. Thank you once again for your insights . It is up to “US” We the People.


    Comment by Paul Fredrick Azar | November 10, 2017 | Reply

    • Yes it it – but we better get moving because we don’t have much time left.


      Comment by Publius Huldah | November 11, 2017 | Reply

  8. Reblogged this on Northvale Republican Club and commented:
    Absolutely to the point as usual. If we all could have the understanding of the true meaning of Judicial Power, OUR Constitution would not continue to be shredded to appease the minority. We the People must ensure OUR future by protecting OUR Constitution. We have to take action whenever the progressive movement attacks. Thanks for your clarity.


    Comment by Edward Durfee | November 10, 2017 | Reply

  9. Absolutely to the point as usual. If we all could have the understanding of the true meaning of Judicial Power, OUR Constitution would not continue to be shredded to appease the minority. We the People must ensure OUR future by protecting OUR Constitution. We have to take action whenever the progressive movement attacks. Thanks for your clarity.


    Comment by Edward Durfee | November 10, 2017 | Reply

    • Thank you, Edward. I’m trying to find a way to get this information to at least the 25% who can name all 3 Branches of the federal gov’t.


      Comment by Publius Huldah | November 11, 2017 | Reply

  10. It always amazes me that the vast majority of people who are sworn before God and We the People to preserve, protect and defend the Constitution of the United States of America against all enemies foreign and domestic haven’t the slightest clue about or interest in what it says.

    Thank you for your teaching.


    Comment by FiddlerBob | November 9, 2017 | Reply

    • Yes! When you take an Oath to do something – one should take the Oath seriously. But we no longer attribute any importance to such mundane things as “keeping one’s word” and such like. Can we get Americans to recover their lost Virtue?


      Comment by Publius Huldah | November 11, 2017 | Reply

  11. Once again Publius Huldah has confirmed, the clarity and wisdom of our Founding Fathers. Perhaps they weren’t aware of how the methods of communication would change, from hand carried, handwritten letters to “instant” contact through a digital network. Perhaps they didn’t predict the ease-of-use or power or lethality of modern-day arms over muskets. And, perhaps they didn’t anticipate the specific deviation of social and moral decay in the Great American people and the country created by their Constitution. However, with this logical, straight-forward dissertation by Publius Huldah, we learn that this relatively small group of brilliant men, undoubtedly under the guidance of God, actually created a document that is both Universal and Timeless. Our Constitution genuinely applies to ALL conditions, forecast or not, ALL circumstances, existing or not, and ALL ideals, understood or not yet revealed. The answers to questions asked or unthought of are already there and need only be applied without distortion and without devious MISinterpretation. Thank you, Publius Huldah, thank you.


    Comment by Terry Rapp | November 9, 2017 | Reply

    • Thank you, Terry! The more I apply our federal Constitution, the more I marvel at its elegance, simplicity, usefulness, and timelessness – 230 years ago and today and into the future. That’s because it was created to serve the hallowed purpose of carrying out God’s Will to secure the Rights God gave us [Declaration of Independence, 2nd para]. That was the purpose of government in God’s Model of civil government – that’s why it works so well.

      It’s all so simple! Why doesn’t everyone see this?


      Comment by Publius Huldah | November 11, 2017 | Reply

    • And Terry, that is the Beauty and Power of applying and being guided by Transcendent Principles from the Creator God [ declaration of Independence, 2nd para].


      Comment by Publius Huldah | November 12, 2017 | Reply

  12. Reblogged this on PUMABydesign001's Blog.


    Comment by bydesign001 | November 9, 2017 | Reply

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