The constitutional argument is that the Constitution gave Congress the power to regulate the military. They gave the CINC job to the President.
The constitutional argument is a good one in that we don’t want a judge putting an injunction on “a surge” if that’s what a CINC were to decide as the best strategic move in a war. Could a judge dream up a logic for putting a hold on a surge? Sure he could. I could. If everything else fails, use the commerce clause.
The same with the Congress. War issues should be decided on the basis of winning wars and not on whether it meets equal opportunity interpretations or not to ban gays from service.
I have pointed out one of many battlefield reasons why gays should be banned....the blood-borne pathogen issue.
So, this REASON (blood) is premised on Congress exercising its Constitutional authority to provide a WINNING military, and not just any old military it can throw together.
Fat people are banned from serving not because we hate fat people, but because they are more vulnerable in a fast-moving wartime environment.
Zackly.