This post originally appeared on Law360, New York (November 7, 2017, 11:32 AM EST).

Last week, a federal judge halted much of President Donald Trump’s controversial ban on transgender military service, which he first announced via Twitter on July 26.

The president’s full Twitter announcement read: “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.”

Despite following up his Twitter announcement with a formal presidential memorandum roughly one month later, the litigation challenging Trump’s reversion back to earlier guidelines regarding transgender service in the military seized on the informal and unequivocal announcement as a way of characterizing the more measured official policy enactments that followed.

The use of the president’s own — albeit, unofficial — statements against him marks an emerging theme in litigation challenging the president’s agenda. Indeed, the social media presence Trump so effectively employed in his campaign for office continues to undercut the arguments employed by the administration’s lawyers attempting to support the president’s policy initiatives. Just a few months ago, for example, Trump’s self-described “travel ban” came under intense scrutiny by federal judges who repeatedly cited to campaign statements and Twitter remarks as evidence of the president’s “intent.”

In Trump’s latest run-in with the judiciary — this time involving his decision to revert to an early Obama-era policy regarding admission and retention criteria for transgender military service members — the reviewing court has once again looked to Twitter to inform its assessment of the constitutionality of the policy.

The Case

Around August of this year, several plaintiffs filed suit challenging the president’s directive as unconstitutional saying the apparently blanket ban violates the Fifth Amendment’s due process guarantee.

The nearly 80-page opinion by Judge Colleen Kollar-Kotelly is quite thorough, and goes to great lengths in order to establish the court’s jurisdiction over the case, as well as the justiciability of this relatively novel issue, before reaching the issue on the merits.

The case made by the government objecting to the several plaintiffs’ motion for preliminary injunction was devoted largely to the premise that the harms alleged by plaintiffs were not sufficiently established or likely so as to merit the court weighing in. These jurisdictional issues are difficult and required a searching analysis by the court. As a result, much of the opinion was devoted to the question of jurisdiction.

The court aptly characterized the defendant’s position at the outset of its opinion:

“Although highly technical, [the government’s] jurisdictional arguments reduce to a few simple points: the Presidential Memorandum has not effected a definitive change in military policy; rather, that policy is still subject to review; until that review is complete, transgender service members are protected; and any prospective injuries are too speculative to require judicial intervention.

In effect, then, the government claims the court could not have jurisdiction over the plaintiffs’ claims because the presidential memorandum — which was issued about one month after the president’s initial Twitter announcement and resulted in a more express, executable order — is too indefinite. The court disagreed.

“These arguments, while perhaps compelling in the abstract, wither away under scrutiny. The Memorandum unequivocally directs the military to prohibit indefinitely the accession of transgender individuals and to authorize their discharge. The decision has already been made.”

[Emphasis added]

This reasoning is the fundamental distinction between the position of the court and that of the government. Importantly, the court noted that the terms of the presidential memorandum itself assuage any concerns regarding the finality of the government’s position. Although the government contended that guidance from U.S. Secretary of Defense James Mattis, due next year, required the court to hold its judgment until a definite policy statement has been made, the court found the memorandum’s language ultimately left little doubt as to the government’s position.

The directives of the Presidential Memorandum … are the operative policy toward military service by transgender service members. The court must and shall assume that the directives … will be faithfully executed.”

In other words, regardless of what the guidance of Mattis entails, if it complies with the terms and conditions of the presidential memorandum it will necessarily result in (1) the indefinite halt of transgender accession into the military; and (2) the authorization — though not necessarily requirement — to discharge transgender service members solely because they are transgender.

The Tweets

Although the language of the presidential memorandum does seem fairly clear, the court appeared to tacitly recognize it may be overreaching in attributing such finality to a policy that, to be sure, has not officially been enacted.

This is where the president’s tweets erased any remaining doubt in the eyes of the court.

“Finally, to the extent there is ambiguity about the meaning of the Presidential Memorandum, the best guidance is the President’s own statements regarding his intentions with respect to service by transgender individuals.”

[Emphasis added]

The court went on to directly quote the president’s tweets in conjunction with the terms of the presidential memorandum. The court found the “directives are known, and so are the circumstances under which they were issued. They cannot be more concrete, and future policy by the military — absent action from the president — cannot change what the directives require.”

Although this court now joins others before it that have hinged their opinion on the unofficial statements of the president on various social media platforms — albeit to less a degree than some others (see, the travel ban cases) — we are in relatively uncharted territory here. There is precious little precedent on point regarding the use of social media posts as a means to determine intent or purpose of duly enacted policies, and it is unclear whether doing so is an appropriate exercise of judicial discretion. Indeed, the increasing reliance of courts on such information in the Trump-era begs the question: How far outside the four corners of the text should or can courts go in rendering their judgments as to the constitutionality of that text?

This is a question that, despite a loose consensus in some lower courts, does not yet have an answer. It will likely require one of these cases making its way to the U.S. Supreme Court before we have any sort of definitive guidance. It is worth remembering, however, that the judiciary must continue to observe its limited role as a co-equal branch in our constitutional system. There are significant concerns that accompany the apparent eagerness of some judges to hinge their legal opinions on spontaneous, visceral and unofficial statements of policymakers. This is especially so when those statements are subject to required brevity, as they are with the 140-character limit imposed by sites like Twitter.

Professor Josh Blackman, a constitutional law professor at South Texas College of Law, has grappled at length with the issue of courts using Trump’s unofficial statements in their opinions. Blackman points out that a function of our tripartite system of government is the “presumption of regularity,” under which courts generally should not second-guess the stated purpose of a policy by looking beyond the text of the policy itself. Increasingly, courts appear to be drifting away from this. Blackman argues both that this is an inappropriate development at the lower court level, and one the Supreme Court may ultimately reject:

“In our constitutional order, if any court is to abandon that presumption of regularity, it would need to be the Supreme Court. What’s more … the Supreme Court has rebuked the lower courts for their wide-ranging injunctions concerning the travel ban. Once again, the Supreme Court’s recent per curiam orders should give the lower courts an opportunity to reassess their variable deference screens, and, in the words of Jack Goldsmith, “turn down the temperature.”

Although Blackman has focused largely on the series of travel ban cases initiated under Trump, the presumption applies to all federal actions.

To be sure, Judge Kollar-Kotelly’s thoughtful opinion in the transgender military ban case relied far less on the president’s unofficial statements than did some judges in the travel ban cases. That said, the sheer number of times she mentioned Trump’s tweets — even going so far as to provide screenshots of the tweets themselves in her opinion — demonstrates their effect on her overall analysis. Whether her reliance was an inappropriate departure from the presumption of regularity will likely be a question for the appellate courts.

Case Takeaways and Ongoing Questions

The preliminary injunction creates a temporary reprieve for transgender military service members while the case makes its way through the courts. Although the granting of an injunction indicates the court found a “likelihood” of success of the plaintiffs’ claims, it should be stressed the injunction does not mean the court found a “certainty” of success. Moreover, there are many moving parts to the court’s analysis.

In finding for the plaintiffs, the court relied on a series of amicus briefs, including one filed by several state attorneys’ general, to find transgender individuals were at least a “quasi-suspect” class entitling them to a heightened standard of review. Holding that the ban was a form of sex discrimination, the court applied an intermediate scrutiny analysis.

Sex-discrimination is not per se unconstitutional but, as the court noted, under an intermediate scrutiny analysis, “[t]he government must show at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” The burden of demonstrating this lies entirely with the government.

Ultimately, the court found the government failed to meet its burden at this early stage, and granted the plaintiffs’ motion for injunction. This initial victory for the plaintiffs, however, raises still more questions that may come up at later stages of the litigation.

First, will the circuit court or Supreme Court agree with an increasing number of lower courts and find that discrimination on the basis of gender identity constitutes sex-based discrimination? Further, even if the court finds sex-based discrimination, is a ban on transgender service members sufficiently related to the government’s stated objective of maximizing military effectiveness so that it would survive an intermediate scrutiny review?

Of course, coloring all these questions is the increasing willingness of courts to use tweets and other unofficial statements by the president when they consider the constitutionality of the president’s policy initiatives. Does this departure from the “presumption of regularity” in the era of Trump mark an acceptable evolution of the courts, or is it an unlawful usurpation of the executive branch’s constitutional authority by the judiciary?

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