The Good, The Bad, And The Ugly In Congress’s New NDAA
The Federalist recently called on Congress to fix the U.S. military, which it argues has been weakened by years of misplaced priorities. In response, both the House and Senate have introduced versions of the 2026 National Defense Authorization Act (NDAA) aimed at reforming various aspects of the military, including procurement, equipment, facilities, and troop salaries. A notable focus of these bills is rolling back social policies that critics say have harmed recruiting, operational effectiveness, and morale, such as certain diversity initiatives and controversial events like drag queen shows on military bases.
The House bill includes provisions requiring military personnel decisions to be based strictly on individual merit, fitness, capability, and performance, prohibiting considerations of race, ethnicity, or national origin, with limited exceptions for special operations missions. However, the author suggests expanding these prohibitions to include sex and religion and clarifying key terms to prevent misuse. The Senate bill lacks a similar complete merit-based provision but does include measures defining sex biologically and barring men from participating in women’s sports at service academies, with recommendations to extend these rules across all department of defense schools.
Both bills address admissions policies at service academies by prohibiting race, sex, ethnicity, national origin, or religion from being factors in the admissions process, promoting merit-based criteria. They also target the Pentagon’s diversity, equity, and inclusion (DEI) bureaucracy by repealing key laws that support DEI programs and banning policies and training that promote DEI or critical race theory. The Senate bill goes further by eliminating requirements to represent diversity on selection boards and restricting the use of military funds for transgender surgeries.
While these legislative efforts tackle many socially divisive issues affecting the military, the author argues that further refinements are needed, notably in defining merit and maintaining realistic exceptions, to fully restore focus on combat readiness and cohesion. The piece concludes that Congress has made crucial progress but must continue working to align military policies with the broader support of the American people.
After The Federalist published a call for Congress to fix the broken military it created through years of misplaced priorities, both the House and the Senate released their versions of the 2026 National Defense Authorization Act (NDAA).
As with most pieces of complex legislation, it is not perfect. In addition to reforming the procurement process and addressing military equipment, facilities, and salaries for the troops, it begins to undo the years of social experimentation and manipulation that tanked recruiting, compromised effective operations, and produced drag queen shows.
What Needs Work
Several provisions in both the Senate and House versions advance the goal of returning the military to a focus on merit, unit cohesion, and combat effectiveness, and eliminating divisive and demoralizing policies that detract from the mission of the military.
The House version adopted an amendment offered by Rep. Nancy Mace, R-S.C., that requires all military personnel actions to be based “exclusively on individual merit, fitness, capability, and performance.” It then prohibits consideration of “race, ethnicity, or national origin” in personnel actions but includes an exception when specific special operations missions in foreign countries would justify considering race in selecting the special operators for the mission.
While this provision is good as far as it goes, it could be improved in three respects. First, sex and religious preferences should be prohibited along with race, ethnicity, and national origin. Similarly, stacking selection boards with members who represent “the diverse population of the armed forces” was a not-so-subtle endorsement of granting preferences to females and nonwhites.
Second, key terms must be defined to preclude definitional manipulation by future administrations from subverting the purpose of the legislation. If personnel actions are based exclusively on merit and merit is defined by objective, measurable qualifications, skills, and abilities, it reduces the likelihood that left-wing bureaucrats could, for example, define “fitness” in implementing regulations to embrace demographic factors. Similarly, “sex” should be defined by biological reality and specifically reject so-called gender identity, gender expression, sexual orientation, sexual preference, and other such concepts. Failure to define key terms gives implementing officials the opportunity to contort the legislation to suit their agendas.
Third, if sex and religion are prohibited factors in personnel actions, reasonable exceptions must be included to deal with reality. Like the exception for the consideration of race in certain special operations missions, sex is a valid consideration when fielding Female Engagement Teams to interact with the local culture in some environments. The assignment of chaplains throughout the force or ROTC instructors to religiously affiliated universities should factor in the religious aspect of the tasking. Men and women may be fungible when piloting drones but are different in important ways when considering billeting and hygiene facilities. These are important considerations that can and should be addressed in the legislation.
While the House merit provision could use some shoring up, the Senate bill is devoid of any similar provision. Whether floor amendments or conference negotiations can cure this defect remains to be seen.
Section 548 of the Senate bill forbids men from participating in women’s sports at the service academies. It also defines “sex” based on reproductive biology and genetics. Once again, this is good as far as it goes, but the provision only applies to the service academies. It should be expanded to apply to all DOD Education Activity schools around the world.
Furthermore, while forbidding men from taking competitive positions from women in sports, it should also forbid men from using women’s locker rooms, showers, and other private spaces. It is sad to think Congress must legislate such detail, but the controversy over men in women’s sports is such that, unless Congress does so, the advancements made by Title IX will be erased.
What Looks Good
As for the good parts, both the House and the Senate addressed the scandal of race and sex preferences in service academy admissions that denied white and Asian applicants a fair chance of admission to those elite institutions. In the House, Mace introduced another amendment that was adopted by the House Armed Services Committee to reform the admissions process at all the service academies to ensure that merit, not demographics, determines who will matriculate.
Section 547 of the Senate version, while not as comprehensive as the House provision, simply forbids the academies from granting preferences in admissions based on race, sex, ethnicity, national origin, or religion. If either or both proposals become law, Congress will have reinforced the constitutional guarantee of equal protection in service academy admissions.
Both the House and Senate versions have begun dismantling the so-called diversity, equity, and inclusion bureaucracy in the Pentagon. The House bill, in another amendment Mace offered, repeals the three-legged stool that has served as the foundation of the DEI industrial complex within DOD: 10 U.S.C. §113(c)(2) (secretary of defense reporting requirements on DEI efforts), 10 U.S.C. §147 (creation of a DOD chief diversity officer), and 10 U.S.C. §656 (program on diversity in military leadership). Additionally, it prohibits the creation or implementation of policies, programs, offices, publications, or training that promote DEI or critical race theory through administrative or executive actions. The House bill also reaffirms the importance of equal opportunity programs and compliance with the Americans with Disabilities Act throughout DOD.
On the Senate side, Section 920 deals with the same three foundational provisions as the House version but goes much further. The Senate version also repeals 10 USC §986 that permits the display of gender and preferred pronouns in official correspondence and eliminates the requirement in 10 USC §573(b) and similar provisions that selection boards be composed of members who “represent the diverse population of the armed forces concerned to the extent practicable.”
Section 920 also modifies the required DOD-wide human relations training program to focus training on “honor, excellence, courage, and commitment,” instead of “race relations, equal opportunity, opposition to gender discrimination, and sensitivity to hate group activity.”
Section 706 in the Senate bill prohibits DOD funds and facilities from being used to perform transgender surgeries.
Between the House and Senate versions, most of the socially contentious issues that have adversely affected the military have been addressed. Some are better than others. But more work needs to be done. While Congress should not sacrifice the good on the altar of the perfect, the issues that still need work are ones the American people strongly support. Congress still has work to do.
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.
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