Five months ago, in these pages I expressed concern that Congress was missing the opportunity to restore merit to the military personnel system. To accomplish that task I urged Congress to include a meritocracy provision in the 2026 NDAA that does four things: (1) require all military personnel actions to be based exclusively on merit; (2) forbid race and sex-based preferences; (3) provide for reasonable exceptions when mission success requires sex or race be considered; and (4) define key terms so idealogues in the Pentagon cannot manipulate the language to further their diversity agenda.
When the House and Senate passed their versions of the NDAA, it appeared that between the two chambers some progress toward establishing a merit-based personnel system was being made. When the compromise bill resolving the differences between the House and Senate version, S. 1017, was released last week, it was readily apparent that Congress had no intention of requiring merit principles to govern military personnel actions. To make matters worse, the drafters employed smoke and mirrors to put a merit-sounding title on a provision that just reinforces the Biden-era identity preference status quo.
What’s Not in the NDAA
The bill passed by the House had a provision that would have specifically forbidden the use of race or ethnicity in personnel actions except for certain special operations missions. It also required all personnel actions to be based “exclusively on individual merit, fitness, capability, and performance.”
While it did not address sex-based preferences, it did put Congress on the same page as the administration insofar as racial discrimination was concerned.
The initial Senate version, on the other hand, lacked any attempt to restore a meritocracy or to eliminate identity preferences. Had the final version negotiated between the House and the Senate accepted the House provision it would have been a big improvement. Instead, what we got was a provision that, when viewed in context, sends the unmistakable message that race and sex-based preferences are alive and well in the military personnel system.
Gaslighting on Merit
To appreciate the sleight of hand the Congress pulled off, one must look at how its members framed the issue. Section 525 of the final version of the bill is titled “Requirement of equal opportunity, racial neutrality, and exclusive use of merit in military personnel actions.” Sounds pretty good, doesn’t it?
Unfortunately, it is the text of the legislation and not the title that is important. All this section does is add “command selection” to Section 529C of the 2024 NDAA so that the provision now reads, “MERIT REQUIREMENT. — A military accession, promotion, or command selection in the Department of Defense shall be based on individual merit and demonstrated performance.”
Note what this provision does not say. It does not say that personnel actions shall be exclusively based on merit and demonstrated performance. It does not say that racial and sex-based preferences shall not be applied in military personnel actions. It does not define “merit” and “demonstrated performance.” And it does not provide for reasonable and legitimate exceptions, such as assigning women to Female Engagement Teams and blacks to a special operations mission in Africa where the ability to blend in with the local population might be critical to mission success.
You may ask, “Why must Congress be so specific? The language seems straightforward, and a reasonable interpretation would not allow for discrimination or preferences.” When, however, ideologues get to interpret the statute, they will manipulate the language to further their ideological goals.
We know this because of what happened after President Biden signed the 2024 NDAA into law on December 22, 2023. From that point forward “military accession” and “promotion” were to be based on “individual merit and demonstrated performance.” Furthermore, “DOD Instruction 1350.02,” the Department of Defense (now called the Department of War under the Trump administration) policy on Equal Opportunity, required service members to be “evaluated only on individual merit, fitness, capability, and performance.” The statutory language and the department’s instruction would seem to make merit the standard. But things are not always as they seem.
Because neither the federal law nor the department’s policy specifically prohibited race and sex-based preferences and Congress did not define key terms, Pentagon ideologues continued with business as usual. Neither the 2024 NDAA provision nor the Department of War’s policy language contradicted the “diversity is a strategic imperative” mantra of the Biden Pentagon. Despite the language of the 2024 NDAA and the Pentagon policy, the senior leadership in the Pentagon and the Department of Justice argued in federal court that racial preferences were appropriate in granting admission to West Point, Annapolis, and the Air Force Academy. “Diversity is our strength,” they said.
In their interpretation of both the federal statutory law and Biden’s Defense Department policy, considering skin color to achieve diversity was part of the “merit” calculation. “Performance” was weighed not in relation to any objective standard, but relative to the amount of melanin in an applicant’sskin. When Congress fails to define key terms, ideologues can manipulate the language to achieve their goals. Clever lawyering can even convince federal judges to go along with the scam.
By adding “command selection” to a statute Department of War has already twisted to allow using racial preferences does not change anything. Furthermore, codifying the language of the DOW policy without defining the terms allows the DOW bureaucrats to supply their own definition.
What Is in the NDAA
To be sure, Congress did repeal or amend many of the statutory provisions establishing the DEI infrastructure and placed restrictions on the ability of the civilian leadership to administratively create DEI offices. That’s a good thing. But the final bill, unlike the earlier Senate version, does not remove the requirement for selection boards to have “diverse” membership. The message is clear: Race and sex-based diversity is still a priority in personnel actions.
Insanity Is Doing the Same Thing Over Again but Expecting Different Results
The next three years under the Trump administration’s executive orders and Pete Hegseth’s policy memoranda merit principles will apply. When a new administration comes to town all bets are off. The Trump EOs and the Hegseth policy memos will be revoked with the stroke of a pen. The race and sex preference crowd will be back in charge, and nothing will stand in the way of reinstating their agenda. Wash, rinse, repeat.
The Trump administration has used its executive authority to eliminate identity preferences and restore merit to military personnel policy. Congress, on the other hand, has used gaslighting press releases to mislead the public. It is difficult to determine which is worse, refusing to restore military meritocracy or lying about it.
William Woodruff is a professor of law emeritus and a retired Army lawyer. As an Army lawyer, he served as chief of the litigation division and was responsible for defending the Army’s interests in civil litigation involving Army policies, programs, and operations.
