The Modern Military Association of America (MMAA); the Center for Law and Military Policy (CLMP); the Honorable Gordon O. Tanner, former General Counsel of the U.S. Air Force and Assistant Secretary for Manpower and Reserve Affairs; and the Service Women’s Action Network (SWAN) filed a friend-of-the-court brief yesterday with the U.S. Court of Appeals for the Ninth Circuit in the case of Kuang v. U.S. Department of Defense. The class action lawsuit filed by the ACLU was brought on behalf of lawful permanent residents who enlisted in the armed services but were not permitted even to attend basic training because of a policy implemented by the Trump-Pence administration requiring unspecified extra screening and significant delays. The new discriminatory policy ended the long-standing practice of treating all applicants who meet basic qualifications the same way.
While a U.S. district judge had previously blocked the harmful Trump-Pence policy, a Ninth Circuit panel overturned that decision and said the court would not interfere with internal military decisions. In the amicus brief led by MMAA, the military advocates urge the entire bench to review the Ninth Circuit panel’s decision that created an intra-circuit split, ignored the serious harm inflicted on the plaintiffs and the military overall by the policy, and insulated Department of Defense policies from any meaningful review.
“We cannot stand by while the Trump-Pence administration continues to marginalize qualified individuals based on irrelevant factors, whether it be sexual orientation and gender identity, or national origin as in this case,” said MMAA Legal Director Peter Perkowski. “Alarmingly, the court’s decision creates additional barriers to individuals seeking relief from harmful, baseless and unconstitutional military policies, regulations and decisions, which are altogether more frequent under this administration. We urge the full court to correct this error.”
The Trump-Pence administration policy causes extensive delays for qualified, lawful permanent residents, dramatically altering these aspiring service members’ military and post-military career prospects, creating tremendous uncertainty for them and their families, diminishing future earnings and creating long-lasting stigma. Aspiring service members are asked to make a commitment to their country when they enlist, which requires setting aside other career choices, alerting employers that they may be called away at an unknown time in the future, and remaining in limbo while awaiting orders to report to basic training. The process takes time, but extensive delay is both unusual and harmful. It prevents progress in a civilian career, it causes stress and anxiety and it delays military career progression. These injuries are real and substantial, not speculative.
The Trump-Pence administration policy harms the military as well as these aspiring service members. Throughout its history, the military has exercised great care in the selection, training and retention of qualified personnel as an integral aspect of military readiness. Policies that discriminate based on group characteristics, rather than fitness to serve, undermine our national-security interests. Permitting discrimination based on national origin and immigration status would have a corrosive effect. Legal permanent residents have served with distinction throughout our nation’s history. For example, more than twenty percent of all Medal of Honor recipients are immigrants.
