A big theme of forthcoming decisions is who gets to govern the U.S. Is it the president, Congress, the states, federal agencies or federal judges?
One case relates to who controls the U.S. military. Don Brown, a former prosecutor and former U.S. Navy Judge Advocate General (JAG) officer, spoke with AFR’s Jenna Ellis.
"That's the Talbott case in which a court of appeals for the District of Columbia, by a two to one vote, struck down the president's order banning transgender recruitment or upheld an injunction partially against it,” says Brown. “I know that the secretary of war is appealing that directly to the Supreme Court."
AFN reported in January 2025 that President Donald Trump signed an executive order titles “Prioritizing Military Excellence and Readiness.” The order stated that U.S. armed forces had no room for those with mental and physical health conditions, including individuals that express a false “gender identity” that is opposite from their sex.
Brown said there's many separation of powers questions in these types of cases, such as whether the courts have power over the military. In his opinion, they don’t.
“There's another case called Trump v. Slaughter where the president tried to fire the FTC (Federal Trade Commission) commissioner, and that's going to reach the court. Who has the authority to do that?” says Brown.
Article II of the U.S. Constitution, he said, gives the executive that authority. He also emphasized that many separation of powers questions that will be brought up.
“I've made the argument for some time now, of course, that the judicial branch is limited. If you go back and reach Federalist No. 78 when the Constitution first passed in Philadelphia in 1787, it had to be ratified,” says Brown. “The states were afraid of overreaching federal judges. Alexander Hamilton wrote that the judiciary is to be the weakest branch."
Brown said the judiciary should have no power to issue injunctions over the executive branch or Congress.
