With the U.S. Supreme Court green lighting President Trump this week to proceed with a ban on transgender military service, the U.S. Justice Department moved on Tuesday to dissolve the last court order standing in the administration’s way.
In a one-page notice signed by Assistant Attorney General for the Civil Hunt Joseph Hunt, the Justice Department informs U.S. Judge District George Russell in Maryland of the Trump administration’s intent to a file motion to request a stay on his preliminary injunction preventing Trump from enforcing the anti-trans policy.
Hunt cites the Supreme Court’s decision to issue stays challenging the transgender ban in two other cases before the U.S. Ninth Circuit Court of Appeals. In both those cases, trial courts issued orders barring the Trump from enforcing the policy as litigation proceeded, but stays from the Supreme Court abrogated those orders.
“The preliminary injunctions stayed in Karnoski and Stockman are indistinguishable from the preliminary injunction in this case, and the Supreme Court’s order is binding precedent on the application of the stay factors to the injunction at issue here,” Hunt writes.
Once the preliminary injunction issued by the Maryland court is lifted, nothing will block the Trump administration its policy. As envisioned in an implementation plan issued by former Defense Secretary James Mattis, the policy would bar new transgender enlistments, but allow openly transgender people currently in the military to remain in the armed forces and receive transition-related care. (Individuals in the military who later decide to come out as transgender and transition, however, will face discharges.)
With the nation’s most superior court directing the Ninth Circuit to dissolve identical orders, it’s hard to see how Russell could keep the last remaining order against the transgender ban in place.
Russell issued the order in the case of Stone v. Trump, a legal challenge against the transgender military ban filed by the American Civil Liberties Union on behalf of six transgender service members.
In a brief Wednesday responding to the Justice Department, the ACLU points out the Supreme Court merely stayed orders against the ban until the Ninth Circuit renders a decision in those cases, thus a dissolution would be inappropriate.
The ACLU concedes “it would be appropriate for this court to stay the nationwide effect of its injunction pending appeal” in the aftermath of the orders from the Supreme Court, but urges Russell to keep his order in effect for at least the named transgender plaintiffs in the case.
“Defendants’ argument before the Supreme Court centered on the nationwide effects of the Karnoski and Stockman injunctions,” the brief says. “Every page of the Argument section of their Applications focused on Defendants’ concerns regarding a nationwide injunction, and no plaintiffs in those cases urged the Supreme Court to preserve a stay as to specific individual plaintiffs.”
The ACLU also argues “it is in both parties’ interests to expeditiously reach a resolution of the case,” calling to proceed with discovery process in the lawsuit.
“Defendants previously argued that a stay of compliance with this court’s discovery orders would not prejudice plaintiffs while the preliminary injunction remained in place,” the brief says. “This soon may no longer be the case. Now that plaintiffs may lose the protection of the preliminary injunction, plaintiffs respectfully request that implementation of this court’s discovery orders, and its consideration of the pending dispositive motions, proceed expeditiously.”
On Thursday, the Justice Department responded with another brief calling for a stay pending resolution of the request to dissolve the injunction.
“Because the Supreme Court’s order granted defendants’ stay request in full and stayed the Karnoski and Stockman injunctions in their entirety, a similar stay of this court’s preliminary injunction, in its entirety, is required here,” the brief says.