Congress's Power Over Military Offices

Abstract

Although scholars have explored at length the constitutional law of office-holding with respect to civil and administrative offices, recent scholarship has largely neglected parallel questions regarding military office-holding. Even scholars who defend broad congressional authority to structure civil administration typically presume that the President as Commander in Chief holds greater authority over the military. For its part, the executive branch has claimed plenary authority over assignment of military duties and control of military officers.

This pro-presidential consensus is mistaken. Although the President, as Commander in Chief, must have some form of directive authority over U.S. military forces in the field, the constitutional text and structure, read in light of longstanding historical practice, give Congress extensive power to structure offices, chains of command, and disciplinary mechanisms through which the President’s authority is exercised. In particular, much as in the administrative context, Congress may vest particular authorities—authority to launch nuclear weapons or a cyber operation, for example, or command over particular units—in particular statutorily created offices. In addition, although the Constitution affords Presidents removal authority as a default mechanism for exercising command over how those vested authorities are exercised, Congress may supplant and limit this authority by replacing it with alternative disciplinary mechanisms, such as criminal penalties for disobeying lawful orders.

By defining duties, command relationships, and disciplinary mechanisms in this way, Congress may establish structures of executive branch accountability that promote key values, protect military professionalism, and even encourage or discourage particular results, all without infringing upon the President’s ultimate authority to direct the nation’s armed forces. These conclusions enable a potent critique of the Supreme Court’s recent insistence on a “unitary” executive branch in Seila Law LLC v. Consumer Financial Protection Bureau. They also bear directly on recent legislative proposals to vest authority over cyber weapons, force withdrawals, or nuclear weapons in officers other than the President. From a broader perspective, they shed new light on separation-of-powers debates over executive-branch structure, conventions of governmental behavior, the civil service’s constitutionality, and Reconstruction’s historical importance.

Keywords: military, commander in chief, appointments clause, separation of powers