Can the California National Guard Reject Trump's Transgender Military Ban?

One of the highest ranking generals in the state national guard told troops they wouldn't be kicked out, but he may not have the final word.
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Protesters gather in Times Square near a military recruitment center to show their anger at President Donald Trump's decision to reinstate a ban on transgender individuals from serving in the military on July 26th, 2017, in New York City.

Protesters gather in Times Square near a military recruitment center to show their anger at President Donald Trump's decision to reinstate a ban on transgender individuals from serving in the military on July 26th, 2017, in New York City.

A general in the California National Guard had a message for transgender troops on Wednesday: "Nobody's going to kick you out." In response to the Trump administration's pursuit of a ban on transgender people serving openly in the military, Major General Matthew Beevers, the assistant adjutant general for the California National Guard, told state lawmakers that, "as long as you fight, we don't care what gender you identify as."

Beevers' comments, and their apparent clash with President Donald Trump's policy, raised an important question: Does the state National Guard have the authority to disregard directives from the United States military's commander-in-chief?

Among the country's armed forces, the National Guard serves a peculiar role. In peacetime, the California National Guard (like the National Guard of all states) remains under the control of the state government. In other words, Beevers' commander-in-chief is not Trump, but rather California Governor Gavin Newsom.

The National Guard's autonomy from the federal government has its origin in the Constitution, which outlines states' ability to create their own militias. But both the Constitution and federal law describe the president's ability to federalize state troops. In times of war—or other emergencies—the president can nationalize a state's National Guard. Once that happens, the president becomes the troops' commander.

As of now, the California National Guard has not been nationalized, and Beevers still reports to Newsom. Of course, the actual nature of Beevers' role is more complicated than that. Even though, legally, he's a member of the state military, much of the National Guard's funding comes from the federal government, and the Pentagon is at the center of operations. To put it simply, the California National Guard might technically remain separate from the federal government, but, in reality, D.C. has enormous influence on its practices. And beyond that influence, federal law gives the Pentagon power to determine the standards for National Guard troops, explains Charles J. Dunlap, a law professor at Duke University and former major general in the U.S. Air Force. Dunlap explained in an email:

As a matter of constitutional law, the Militia Clauses give Congress considerable power over the organization, arming, and disciplining of the militia. Current federal law gives the service secretaries concerned the power to determine the qualifications of those members of the modern day "militia," that is, the National Guard, who received federal recognition as part of the U.S. National Guard.

Depending on legal interpretation, this could mean that the federal government could compel the California National Guard to consider a service member's transgender identity, or their experience of gender dysphoria, as disqualifying for service. However, Dunlap says that, even though Trump announced a ban on transgender people serving in the military, the Pentagon is yet to officially adopt the policy: An injunction from a Maryland court still blocks its implementation (even though the Supreme Court ended similar preliminary injunctions issued by other lower courts). That means that, as of now, Beevers and the California National Guard have the authority to let transgender troops serve, because no federal policy blocks them.

But what would happen if the policy did go into effect? To understand the California National Guard's ability to resist Trump's directives, it's useful to look back at recent history. In 2013, after the Supreme Court struck down the federal Defense of Marriage Act, the Obama administration directed the military to begin to provide federal benefits to same-sex couples. A collection of states, led by Texas, Louisiana, and Florida, resisted the directive from the federal government, and instructed their respective state National Guards not to pay out the benefits. After a tense standoff, then-Secretary of Defense Chuck Hagle finagled a compromise in which federal employees would handle all the benefit pay-outs from troops in same-sex marriages, thereby exempting state officers and employees from the process.

In general, in a contest between a state government and the federal government over control of National Guard troops, the federal government will win. Though governors can refuse a president's request to mobilize National Guard troops (as the governor of New Mexico recently did, when she pulled back troops Trump had sent to the border), the president has the power to federalize troops even against a governor's wishes.

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