by Peter Sprigg , Travis Weber, J.D., LL.M.
January 23, 2019
On Tuesday, in Trump v. Karnoski and Trump v. Stockman, the Supreme Court announced it was staying the district court injunctions issued against President Trump’s military transgender troop policy until the cases sorted themselves out in the Ninth Circuit Court of Appeals (the cases arose out of Washington state and California, respectively).
But where does that leave the other cases in which this policy has been challenged?
In Doe v. Trump, the D.C. Circuit already lifted an injunction against the policy arising from a challenge in D.C., and this remains unaffected by the Supreme Court’s recent action.
That leaves one other case, Stone v. Trump, arising out of Maryland, and currently in the Fourth Circuit.
The preliminary injunction against the Trump policy in that case (granted 11/21/17) was based on specific language in the Presidential Memorandum to Mattis of August 25, 2017. But that memorandum was explicitly revoked when President Trump accepted the Mattis Report and Recommendations on March 23, 2018. Although both sides have filed revised briefs in response to the 3/23/18 policy, it does not appear that the judge has ruled in response to those (for example, to amend the preliminary injunction). Despite the Stone injunction (which is likely to eventually be dissolved), the Department of Defense appears to be viewing the Court’s decision yesterday as a signal to slowly but confidently move toward the implementation of Trump’s military transgender policy.
While the Supreme Court’s action yesterday stayed several injunctions, it didn’t wipe them out. The Court will still need to rule on the injunction and the merits at some point, which will dispose of any lingering issues. As the Solicitor General’s brief in Karnoski says in footnote 8, “If this Court were to vacate the injunctions in these cases in whole or in part, that decision would be binding precedent requiring the district court to similarly vacate the injunction in Stone.”