Napolitano to Newsmax: Judge Didn't Have Choice But to Block Trans Military Ban

Retired New Jersey Superior Court Judge Andrew Napolitano weighed in on the legal wrangling between the Trump administration and a federal judge who blocked an executive order banning transgender military service.

He told Newsmax on Monday that the judge had no choice.

"She based her decision on the Civil Rights Act of '64," Napolitano said on "Wake Up America." "When the Civil Rights Act of '64, which bars the government from making decisions on the basis of race, gender, national origin, religion, etc., was enacted, there were two efforts to include — it wasn't called that at the time — LGBTQ. Both failed. It's clear that the legislators did not intend that.

"But when the present Supreme Court reviewed the Civil Rights Act of '64, they said, because Congress used the word sex, instead of the word gender, that covers LGBTQ," he said. "So, under the present interpretation of federal law, the government cannot make decisions based on LGBTQ status. That's what this judge decided. I don't think she had any choice."

Napolitano added that, in his view, "the Supreme Court was wrong because it's clear that LGBTQ was not intended to be covered by the Civil Rights Act of '64."

The alternative argument, which the judge called "the Pete Hegseth argument," referring to the Defense secretary, is that "the judiciary really has no competence whatsoever to make decisions on the military."

"If the military decides that certain human beings are not good for esprit de corps, certain people are not good for running up a hill with 100 pounds on their backs, that's a decision for the president and the military, and not the judiciary, to make," Napolitano said. "So, we're stuck in the middle here until the Supreme Court resolves it.

"They may very well say, OK, you read our interpretation on LGBTQ and the Civil Rights Act of '64 more broadly than we intended. We never intended for it to affect the military."

Complicating the issue, Napolitano said, is a Supreme Court decision from last year that determined whether colleges can use race as a factor in the admissions process.

"They said, absolutely not — except for the military academies," he said. "Those are the only schools in the United States that can because the court did not want to interfere with military education. So, it's hard for me to predict how this is going to go."

The former Garden State judge also said that the Trump administration would receive less pushback from the judiciary "if they follow the law" when enacting President Donald Trump's agenda.

"Some judges have found that what he's doing is what he promised he would do, but he's got to do it according to law," Napolitano said. "Certain people can only be fired by the secretaries of their departments, not by the president and not by DOGE [the Department of Government Efficiency]. If they follow the law, there will be a lot fewer judicial interferences."

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