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Swear an Oath to The Constitution? What Does It Mean?

How History & Democracy Shape Civilian Leadership of The Military

 

By Monte Erfourth – July 2, 2024

Introduction: The Magic Number Is Three

If you've sworn an oath to the U.S. Constitution, you're either in the military or serving as a legally appointed civil official. For those who have taken the oath, it feels good to commit to a higher purpose, and there's often a strong sense of patriotism in reciting the oath. It is somewhat well known, and many, even those who have never done so, can probably recite this line: "I will support and defend the Constitution of the United States against all enemies, foreign and domestic." Despite its simplicity, this famous line leaves some questions.  It's clear what it means to defend against enemies, but what about the Constitution itself? Why not defend the homeland and our way of life? The answer lies in history and the distribution of power captured in our founding document.

 

The Constitution establishes three branches of government to share national power: the legislative, executive, and judicial branches. It also establishes the supremacy of federal law over state law and outlines the process for amending and ratifying the Constitution. The system is designed to protect the American people from corrupt or despotic politicians or military leaders by ensuring that no one person or group can create, administer, and enforce laws alone. Each branch checks the power of the other two, and the meaning of the word "Constitution" in the oath is that each official or military member will support the three branches of government as intended by the Constitution and those legally elected to administer it as the best means to defend the rights and liberties of the nation.[1]

 

The Constitution also recognizes that a powerful military could use its power to subvert the will of the people by staging a coup that removes duly elected officials. The fear was great enough at the beginning of our nation that most politicians refused to maintain a standing army. Given our history and the framers' intent, civilian-military control is a cornerstone of American democracy as it ensures that the armed forces remain under the authority of elected leaders and, therefore, remain accountable to the people.

 

The idea is sound but has faced difficulties, negatively impacting civilian military leadership and compromising democratic norms and national security. Civilian leaders must avoid using the military for personal or political gains, as doing so undermines public trust and politicizes what should be a neutral and professional institution. Such actions threaten the democratic fabric, transforming the military into a tool for partisan objectives rather than a defender of the nation.  The military must accept that civilians establish political goals the military must support and that politicians can get things wrong but still must be obeyed up to but not including unlawful orders.

 

Maintaining the military's apolitical nature and subservience to democratic governance requires committing to democratic principles over personal loyalty, making decisions based on national interest, respecting military officers' autonomy, and preventing military influence in the relationship between elected officials and the public. Historically, the United States has emphasized the importance of civilian control over the military. This tradition is embedded in the Constitution, which designates the President as the Commander-in-Chief while granting Congress the power to declare war and oversee military funding. These provisions prevent any single branch of government from gaining excessive power. Civilian leadership of the Department of Defense, as mandated by the National Security Act of 1947, further underscores this principle.

 

This article explores how several pivotal United States Presidents, the Congress, and the Judiciary have interfaced with the military to safeguard the democratic norms of civil-military relations and, at times, deviated from them. It will explore what the military and government officials should do to defend the nation and the public. Finally, it will examine what the future may hold for civil-military relations. Understanding and supporting the principle of civilian control of the military is crucial for maintaining democratic governance, and the public's endorsement of this notion is essential for preventing elected and appointed civilian leaders from selfishly abusing their positions for personal or partisan gain.[2]

 

 

The Concept of Civil-Military Relations

The history of civilian-military control is deeply rooted in democratic governance principles and the need to ensure that armed forces remain subordinate to the people's elected representatives. In ancient times, civilian control over the military was not clearly defined. In Rome, the Senate exerted significant influence over military decisions, although generals like Julius Caesar often held substantial power, leading to conflicts that undermined civilian authority. This tension between military leaders and civilian institutions set a historical precedent for future discussions on civilian control.

 

The modern idea of civilian control of the military began to take shape during the Enlightenment. Political philosophers such as John Locke and Montesquieu argued for the separation of powers and the subordination of the military to civilian rule. Locke, in his "Second Treatise of Government," emphasized the need for a social contract where the military serves to protect the rights of the people under the direction of civilian leaders.[3] In "The Spirit of the Laws," Montesquieu advocated for a system of checks and balances, including mechanisms to prevent the military from overpowering civilians.[4]

 

In the United States, the framers of the Constitution were acutely aware of the dangers a powerful military poses. They enshrined civilian control in the Constitution by granting Congress the authority to raise and support armies, to provide and maintain a navy, and to declare war while designating the President as the Commander-in-Chief. This framework was designed to ensure that military power would be directed by elected officials rather than military leaders. In the Federalist Papers, Alexander Hamilton argued that a strong executive was necessary to lead the military effectively but that the legislative branch must always check this power.[5]

 

Throughout the 19th and 20th centuries, the principle of civilian control was tested during various conflicts. In the United States, the Civil War saw President Abraham Lincoln exercise significant control over military strategy, despite strong personalities like General George McClellan, who often resisted civilian oversight. In more modern times, during World War II, President Franklin D. Roosevelt worked closely with his military advisors but maintained ultimate authority over strategic decisions. The Cold War era further reinforced the importance of civilian control. The development of nuclear weapons and the potential for global destruction made it imperative that these powerful tools remain under strict civilian oversight.

 

One of the most influential laws passed was the 1947 National Security Act, which created the Department of Defense (DoD) and brought the Department of the Army, the Department of the Navy, and the newly created Department of the Air Force under a single civilian Secretary of Defense. The act aimed to ensure greater coordination and efficiency among the different branches of the armed forces. It also created the Joint Chiefs of Staff as a permanent body that intentionally created a critical role in providing military expertise and strategic advice. The law placed the ultimate decision-making authority with civilian leaders, reinforcing the civilian control principle.  The act also created the National Security Council, which institutionalized the coordination of national security policy across various departments and agencies, ensuring that military and civilian perspectives were integrated into decision-making.

 

The principle of civilian control continues to be a cornerstone of democratic societies. Contemporary issues such as the war on terror and the complexities of modern warfare have tested this principle. Debates over the appropriate level of civilian oversight, especially in areas requiring specialized military expertise, continue to evolve. However, the underlying tenet that the military must remain subordinate to elected civilian leaders remains a fundamental aspect of democratic governance.

 

Constitutional Bases: Balancing Branches of Power & Curbing the Military

The framers of the United States Constitution were acutely aware of the dangers posed by a powerful military that could potentially undermine democratic governance. Drawing from their experiences with British colonial rule and influenced by Enlightenment thought, they deliberately crafted the Constitution to ensure civilian control over the military. This was achieved through a series of carefully considered provisions and establishing a system of checks and balances that distributed military power between different branches of government.

 

The U.S. Constitution outlines the framework for civilian control over the military. Article I, Section 8 grants Congress significant powers over the military, including the ability to declare war, raise and support armies, and provide and maintain a navy. This places the legislative branch in a crucial oversight role, ensuring that the military's actions align with the nation's democratic values and laws.[6]

 

Article II outlines that the President serves as the Commander-in-Chief of the armed forces. This dual structure of control, where both the executive and legislative branches share authority over the military, creates a system of checks and balances designed to prevent any single branch from gaining undue power over the military.[7] This structure reflects the Founding Fathers' intent to protect the young republic from potential tyranny, as they were acutely aware of the dangers posed by a powerful, unchecked military.[8]

 

Civilian control is not solely about supporting the demands of the President. The military must also follow laws enacted by Congress and abide by judicial rulings. For instance, Congress exercises its authority through various means, such as setting the military budget, establishing new military branches, and conducting oversight of military activities.[9]

 

The judicial branch also plays a role in civilian control by reviewing the legality of military actions and policies. Judicial oversight ensures that military operations comply with constitutional mandates and protect individual rights. This multi-branch involvement highlights that civilian control is a comprehensive system encompassing executive, legislative, and judicial oversight.[10] -[11]

 

The framers' approach to civilian control of the military reflects their commitment to preventing the rise of military despotism and ensuring that the armed forces would remain firmly under civilian oversight. Their inclusion of specific constitutional provisions, combined with the broader framework of checks and balances, has been fundamental in maintaining the delicate balance between effective military defense and preserving democratic governance.

 

Civilian control of the military supports several core democratic principles. It ensures accountability. Elected officials, who are accountable to the electorate, make critical decisions about the use of military force. This accountability is essential for maintaining public trust and ensuring that military actions reflect the people's will.[12]

 

Additionally, civilian control promotes transparency and oversight. Congressional hearings, budget authorizations, and appropriations provide mechanisms for scrutinizing military operations and expenditures. This transparency helps prevent abuses of power and ensures that the military operates within the bounds of the law and ethical standards.[13]

 

Lastly, civilian control reinforces the principle of rule of law. Military officers take an oath to defend the Constitution, but not to any individual leader. This allegiance to the Constitution ensures that the military remains a nonpartisan institution that upholds the nation's laws and democratic principles.[14]

 

“Can’t We All Just Get Along?”

The civil-military relationships during several presidential eras provide insightful case studies. They provide insight into how civilian leadership interacts with military leaders during significant conflict and strategic decision-making. Each president's relationship with the military had unique aspects, highlighting both effective collaboration and areas of tension.  Lincoln was famous for firing generals and his close bond with General U. S. Grant.  Franklin D. Roosevelt had conflicts with the military during WWII but had an exceptionally congenial working relationship with General George Marshal. There is also the relationship with the other branches of government to consider.  Examining the Presidencies of Johnson, Bush, Trump, and Biden sheds light on how the branches of government conceived by the Constitution relate to the extremely powerful modern U.S. military.

 

 President Lyndon B. Johnson

President Lyndon B. Johnson's relationship with the military during the Vietnam War was marked by significant tension and controversy. Johnson’s tendency to micromanage military operations and his reliance on political rather than purely military considerations often frustrated his military advisors, including General William Westmoreland.

 

Johnson’s approach to the Vietnam War was problematic as it led to a disconnect between military strategy and political objectives, resulting in ineffective military campaigns and declining public support. The constraints of civilian oversight were evident in Johnson’s careful management of military actions to avoid escalation with the Soviet Union and China, reflecting the complex interplay between military objectives and geopolitical considerations.[15]

 

Congress initially supported Johnson’s escalation in Vietnam, granting broad military powers through the Gulf of Tonkin Resolution in 1964. However, as the war dragged on and public opinion turned against it, Congress became more assertive, exercising its oversight role through hearings, funding restrictions, and eventually the War Powers Act of 1973, which aimed to check the president’s ability to engage in prolonged military conflicts without congressional approval.

 

The judiciary was less directly involved in military policy but played a role in civil rights and draft-related cases. Notably, the Supreme Court ruled in cases such as Tinker v. Des Moines Independent Community School District (1969), which upheld students' rights to protest the war, reflecting the era's broader societal tensions and legal challenges.[16]

 

 President George W. Bush

The civil-military relationships during the administration of President George W. Bush, particularly involving Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld, were marked by significant strategic decisions, operational challenges, and notable tensions. These relationships played a crucial role in shaping the U.S. military’s involvement in the War on Terror, including the wars in Afghanistan and Iraq.

 

Initially, the Bush administration's civil-military relationship was characterized by a decisive and unified approach to national security following the September 11, 2001, terrorist attacks. President Bush, with Cheney and Rumsfeld, moved swiftly to mobilize military resources and launch Operation Enduring Freedom in Afghanistan. The administration’s coordination led to the rapid toppling of the Taliban regime, demonstrating an effective collaboration between civilian leadership and military commanders.

 

However, the relationship faced significant challenges, particularly regarding the planning and execution of the Iraq War. Secretary Rumsfeld's management style and insistence on a smaller, more agile force clashed with the military's traditional preference for overwhelming force. His often controversial decisions, such as the initial troop levels for the invasion of Iraq, led to strained relations with military leaders, including Army Chief of Staff General Eric Shinseki, who publicly disagreed with Rumsfeld’s strategy.[17]

 

The administration's handling of the Iraq War, including post-invasion planning and the insurgency that followed, highlighted the problematic aspects of their civil-military relationship. The perceived micromanagement and disregard for military advice contributed to operational difficulties and prolonged conflict, leading to criticism from both military personnel and external observers.

 

The administration operated within the framework established by the Constitution and various statutory laws that govern civil-military relations. The War Powers Resolution of 1973 required the President to consult with Congress before deploying troops into hostilities, although its effectiveness has been debated. Bush sought and obtained congressional authorization for the use of military force in both Afghanistan and Iraq, which legally constrained military operations within the bounds set by these authorizations.[18]

 

Congress played a supportive yet critical role. It granted broad authority to the President through the Authorization for Use of Military Force (AUMF) in 2001 and 2002, facilitating the invasions of Afghanistan and Iraq. However, congressional oversight intensified as the conflicts dragged on and public support waned. Hearings and investigations into the conduct of the wars, particularly the handling of the post-invasion occupation of Iraq, reflected Congress’s role in scrutinizing military policy and holding the administration accountable.[19]

 

The judiciary's role was significant in addressing the legal implications of the administration's policies on detention and interrogation. Landmark cases such as Hamdi v. Rumsfeld (2004) and Boumediene v. Bush (2008) addressed the rights of detainees at Guantanamo Bay, ruling that detainees had the right to challenge their detention in U.S. courts. These rulings underscored the judiciary's role in ensuring that the executive branch’s military actions adhered to constitutional and international legal standards.[20]

 

The relationship between Congress, the judiciary, and the military during the Bush administration was complex and multifaceted, reflecting the balance of power envisioned by the Constitution's framers.  The military's relationship with Congress and the judiciary was largely one of compliance and implementation. Military leaders provided testimony and reports to Congress, assisting in oversight functions and adapting to legal rulings from the judiciary that affected operational and detention policies.

 

The civil-military relationships under President George W. Bush, Vice President Dick Cheney, and Secretary of Defense Donald Rumsfeld were marked by initial effectiveness in responding to the 9/11 attacks but were later challenged by strategic and operational difficulties in Iraq and Afghanistan. Legal constraints, congressional oversight, and judicial rulings played critical roles in maintaining a balance of power and ensuring accountability. These relationships underscore the importance of clear communication, mutual respect, and adherence to legal and ethical standards in managing civil-military dynamics.

 

In a rare occurrence, a significant number of retired general and flag-grade officers publicly criticized the administration's handling of the Iraq war. This criticism reflects the complexities of civil-military relations. While retired officers have more leeway to express their views, active-duty officers are legally and ethically constrained from publicly criticizing civilian leadership. Maintaining this balance is crucial to preserving the military's apolitical nature and ensuring effective civilian control. The events during the Bush administration underscore the importance of robust internal advisory processes and the need for civilian leaders to consider and respect military expertise while upholding their ultimate authority.

 

President Barack Obama

The ongoing conflicts in Iraq and Afghanistan shaped President Barack Obama’s civil-military relationship. Obama’s tenure saw significant decisions such as the surge in Afghanistan and the operation that led to Osama bin Laden's death. Obama maintained a structured approach to civil-military relations, emphasizing rigorous debate and consultation with his military advisors, including Secretary of Defense Robert Gates and General David Petraeus.

 

This relationship was effective in instances like the bin Laden raid, where careful planning and decisive action showcased successful civil-military cooperation. However, tensions arose over issues like troop levels in Afghanistan and the strategy for combating ISIS. Obama’s emphasis on a methodical and deliberative decision-making process sometimes led to frustrations within the military, highlighting the challenges of aligning military actions with broader political and strategic goals.[21]

 

President Barack Obama’s tenure involved significant military actions, including the drawdown of forces in Iraq, the surge in Afghanistan, and operations against terrorist organizations, shaping his interactions with Congress and the Judicial Branch.

 

President Obama faced both support and opposition from Congress regarding his military policies. He worked with Congress to pass legislation such as the National Defense Authorization Acts but also faced criticism and pushback, particularly concerning the use of drone strikes and military intervention in Libya without explicit congressional authorization. The interplay between executive action and congressional oversight was a constant feature, reflecting the complex nature of modern warfare and security policies.

 

The judiciary was crucial in detainee treatment issues and counterterrorism operations' legality. Cases such as Boumediene v. Bush (2008) affirmed the rights of Guantanamo Bay detainees to challenge their detention in U.S. courts, impacting Obama’s policies on detention and military commissions. The judiciary’s role underscored the importance of legal oversight in upholding constitutional rights, even in the context of national security.[22]

 

President Donald Trump

President Donald Trump's civil-military relationship was marked by notable cooperation and substantial conflicts. His unconventional leadership style and political priorities influenced his significant interactions with military leadership during his tenure.

 

Initially, Trump's appointment of high-ranking military officials to key positions, such as General James Mattis as Secretary of Defense and General John Kelly as White House Chief of Staff, was seen as a move to stabilize his administration with experienced leaders. However, tensions soon arose over policy disagreements, particularly regarding troop deployments, NATO commitments, and responses to civil unrest. For example, Trump's consideration of invoking the Insurrection Act to deploy active-duty military forces during the George Floyd protests led to significant friction with military leaders, including then-Secretary of Defense Mark Esper and Chairman of the Joint Chiefs of Staff General Mark Milley, who publicly opposed the use of military force against civilian protesters.[23]

 

Congressional acts, including the Posse Comitatus Act, which limits the use of federal military personnel for domestic law enforcement without congressional approval, constrained Trump's ability to deploy the military internally. This act and military leaders' adherence to their constitutional oath acted as a check on executive power, ensuring that military actions remained within legal and ethical boundaries.

 

Congress played a critical role in overseeing Trump's military policies. It conducted numerous hearings on military strategy, defense spending, and specific operations. The Senate's refusal to confirm some of Trump's nominees for key military positions and its scrutiny of defense budgets reflected congressional oversight in action. Additionally, the National Defense Authorization Acts (NDAA) passed during Trump's tenure often included provisions that constrained certain executive actions, highlighting the legislative branch's role in shaping military policy.[24]

 

The judiciary's involvement in military-related issues during Trump's presidency was less direct but weighed in on topics like immigration and the ban on transgender individuals serving in the military. In cases like Trump v. Hawaii (2018), the Supreme Court upheld executive authority on national security grounds, reflecting the judiciary's complex role in balancing executive power and civil liberties.[25]

 

President Joe Biden

President Joe Biden's approach to civil-military relations has focused on restoring traditional norms and rebuilding trust between civilian leadership and the military. His tenure has been marked by efforts to address complex global security challenges and ensure robust civilian oversight.

 

Biden's relationship with the military has generally been collaborative, focusing on rebuilding alliances and addressing issues such as the withdrawal from Afghanistan. However, the chaotic execution of the Afghanistan withdrawal in August 2021 exposed significant tensions and operational challenges. Military leaders, including General Milley and Secretary of Defense Lloyd Austin, faced criticism over the planning and execution of the withdrawal, highlighting the difficulties in aligning strategic decisions with on-ground realities.[26]

 

Biden has worked within the established legal frameworks, including the War Powers Resolution, which requires the President to consult with Congress before deploying troops into hostilities. His administration has emphasized adherence to international law and norms, particularly in areas like drone strikes and military engagements, to ensure actions remain within legal and ethical boundaries.

 

Congress has played a supportive yet scrutinizing role in Biden's military policies. The passage of the NDAA and other defense-related legislation reflects a balance of support and oversight. Congressional hearings and investigations into the Afghanistan withdrawal, defense budget allocations, and other military operations have been pivotal in maintaining accountability and transparency.[27]

 

The judiciary has continued to play a role in issues affecting military policy, such as rulings on detainee treatment at Guantanamo Bay and challenges to executive orders related to military operations. The courts have upheld the principles of civilian oversight and the protection of civil liberties, reinforcing the balance of power between the branches of government.

 

 

Challenges and Considerations

Throughout these presidencies, legal frameworks such as the National Security Act of 1947 and subsequent amendments provided a structured approach to civil-military relations, reinforcing civilian control through institutions like the National Security Council and the Department of Defense. These laws ensured military leadership remained subordinate to civilian authority, even amid significant strategic and operational disagreements.

 

The effectiveness and challenges in civil-military relationships under these presidents illustrate the delicate balance between maintaining military efficacy and ensuring adherence to democratic principles of civilian oversight. While each president faced unique challenges, their experiences underscore the importance of clear communication, mutual respect, and adherence to legal frameworks in managing civil-military dynamics.

 

The civil-military relationships under Presidents Trump and Biden illustrate the ongoing challenges and dynamics of maintaining effective civilian oversight of the military. Both presidents faced unique issues, shaped by their leadership styles, legal constraints, and the roles of Congress and the Judicial Branch. While Trump’s tenure highlighted significant tensions and legal challenges, Biden’s presidency has focused on restoring norms and addressing complex global security issues within established legal frameworks.

 

Despite the robust framework for civilian control, challenges remain. Recent years have seen debates over the increasing role of retired military officers in civilian positions and concerns about the military's involvement in domestic political matters. These developments have sparked discussions about the potential erosion of civilian control and the need for vigilant adherence to established norms and practices.

 

To address these challenges, it is essential to reinforce the principles of nonpartisanship and adherence to the Constitution among civilian leaders and military personnel. Maintaining a clear separation between military and political spheres is crucial for preserving the integrity of civilian control and ensuring that the military serves the nation as a whole rather than specific political interests.[28]

 

How Civil-Military Relations May Erode

Will partisanship and tensions between the military and civilian leadership likely decline in the coming years? Probably not.  In fact, it is possible to easily predict a deepening of tensions on the horizon for civilians and the military.  There is no indication from the Biden Administration of shaking up the DoD other than replacing the current civilian leadership with more of the usual suspects from the democratic leaning pool in a second term. In a potential second Trump administration, former President Trump’s statements suggest he will only appoint loyalists to civilian leadership positions across the government.[29]  The Heritage Foundation Project 2025 spells out how and why this would happen and is thought to be the strategy for which Trump and his team are setting conditions.[30] The Heritage Foundation plan involves preparing a comprehensive policy book and a personnel database to ensure that individuals aligned with Trump's vision and loyal to him are placed in key roles from day one.[31] While all Presidential administrations fill the civilian ranks with like-minded officials, the personal loyalty demanded by the former President is historically unprecedented and striking in its implications.

 

Trump aims to avoid the pitfalls experienced during his first term, where the administration struggled with resistance from within the federal bureaucracy. Hand-picked civilian loyalists who may not take the oath of office as a mandate of loyalty to the Constitution could create significant legal and constitutional challenges to the military and put civilian officials in a precarious position. Suppose the civilian leadership (from any branch of the government) directs the military in an overtly partisan fashion, uses the military for personal rather than national purposes, or tasks the military with unconstitutional missions. In that case, the military is not legally obliged to follow any of those directives. 

 

One critical legal and constitutional issue highlighted in the Heritage 2025 Project involves the reinstatement of Schedule F.[32] This Trump-era executive order reclassifies thousands of federal employees as at-will workers, making replacing them with politically loyal appointees easier.[33] This move could undermine the merit-based civil service system established to ensure a nonpartisan and professionally competent federal workforce. Critics argue that such a change would create a de facto political spoils system, where employment stability is contingent on political loyalty rather than competence and adherence to the law.  If this takes root, it will be a race to the bottom to please one man and not safeguarding the American people. Any civilian official who believes loyalty to the President overrides all other concerns and acts on it is putting themselves in legal jeopardy and the nation at risk.

 

The possible Schedule F reinstatement poses several problems for military officers. The U.S. Constitution mandates civilian control over the military, a principle essential for preventing the concentration of power and ensuring that the military remains apolitical.[34] Military officers swear an oath to support and defend the Constitution, not any individual leader. The appointment of civilian leaders based primarily on their loyalty to Trump could pressure military officers to align with political agendas, potentially compromising their duty to provide unbiased military advice and adhere to the Constitution.  At a minimum, following such dictates would be a violation of their oath and, at worst, criminal or treasonous.

 

Such politicization could erode trust between civilian and military leaders, essential for effective civil-military relations. The proper role of military advice in policymaking involves offering technical and strategic insights without political influence, ensuring that decisions are made in the nation's best interest, not based on partisan goals.[35] Politically motivated civilian leaders could lead to scenarios where military officers feel compelled to act against their professional judgment and ethical standards and civilian officials violate the law out of personal, not professional, obligation to the executive.  Let us hope that either the next  Trump or Biden administration choses Americans whose fidelity to protecting the people is greater than loyalty to the executive branch.

 

 

Civilians & The Military Upholding the U.S. Constitution

To defend the nation, it is crucial for both military officers and civil officials to directly face legal and constitutional challenges in professional, ethical, and mutually beneficial ways. Especially if the relationship between the civilian and military sectors is strained due to mistrust, partisan influences, or unlawful requests. Any directive from any branch of the government to the military for personal or unconstitutional purposes cannot, by law, be followed. It is equally unlawful for civilian officials to ask the military to perform tasks or missions for personal or illegal purposes. It is necessary for both military officers and civil officials to adhere to their legal and constitutional obligations to uphold the U.S. Constitution, as this is the best way to defend the nation and protect the American citizenry from harm. They can remain loyal to the Constitution and perform their duties by adhering to the law in such circumstances.

 

Military officers and civil officials must remember that their primary loyalty is to the U.S. Constitution, not to any individual or administration. Their oath obligates them to support and defend the Constitution against all enemies, foreign and domestic. Which means not only protecting American citizens from an external power, but also the misuse of internal government power. For military officers, any orders or directives that contravene the Constitution must be questioned and potentially disobeyed. This constitutional loyalty ensures officers maintain the integrity and independence to safeguard democratic principles. Civil officials must similarly ensure that their policies and decisions align with constitutional mandates and legal precedents, resisting pressures to engage in actions that might undermine these principles.

 

The military's nonpartisan stance is equally crucial. Military regulations enshrine this principle to maintain public trust and ensure effective civil-military relations. Military officers should avoid engaging in or supporting partisan activities, even if pressured by civilian leaders. This apolitical approach helps preserve the military’s role as a neutral entity that serves the nation rather than any particular political agenda. For civil officials and military members, the Hatch Act restricts political activities to maintain the integrity and nonpartisan nature of the federal workforce. This legislation ensures that civil officials do not misuse their positions for political gain and remain focused on serving the public interest and upholding constitutional values (U.S. Code, 5 U.S.C. §§ 7321-7326).

 

Moreover, the Uniform Code of Military Justice (UCMJ) provides a legal framework for maintaining order and discipline within the military. Military officers must follow lawful orders and refuse illegal or unconstitutional ones. Violating the UCMJ by complying with unlawful directives can have serious legal and administrative consequences. Thus, officers must be vigilant in discerning the legality of orders and act accordingly. Similarly, civil officials operate within a framework of civilian law and administrative regulations designed to ensure their actions comply with constitutional principles.[36]

 

Both military officers and civil officials should seek advice from their chain of command or legal counsel when faced with potentially unconstitutional orders. This step is necessary to ensure that any actions taken are within legal bounds and to protect the officer or official from repercussions. Seeking legal counsel provides a safeguard against inadvertently breaching the law or compromising constitutional principles. Additionally, military members and civil officials should document any orders or directives they believe are unlawful or unconstitutional. This documentation can record their concerns and the reasons for their actions if they need to justify their decisions later. Proper documentation serves as both personal protection and a means of accountability.

 

The Whistleblower Protection Act protects military personnel and civil officials who report illegal or improper activities. Officers and officials should be aware of these protections and use appropriate channels to report any orders that violate the law or the Constitution. Utilizing whistleblower protections ensures they can raise concerns without fear of retribution, thereby supporting transparency and accountability.

 

Both military members and civil officials should continue providing unbiased, professional advice, regardless of the political climate. Their recommendations should be based on strategic, operational, and tactical considerations, free from undo-political influence. This commitment to professional advice underscores the importance of integrity and expertise in decision-making. Furthermore, senior officers and officials, in particular, must adhere to the highest ethical standards, which include integrity, honor, and commitment to duty. Given their direct interaction with civilians and politicians who may demand inappropriate actions, senior military officers and civil officials must refuse to carry out orders compromising their ethical obligations or the integrity of their roles. Maintaining ethical standards is essential for preserving the trust and respect of the public and fellow service members.

 

 

Conclusion

The imperative for the military to remain apolitical and uphold constitutional principles cannot be overstated. Especially when civilian leadership acts unconstitutionally. The cornerstone of American democracy is the principle of civilian control over the military, a system embedded in the U.S. Constitution and reinforced by a framework of laws and practices. This principle ensures accountability, transparency, and adherence to the rule of law.  And yet, the ultimate responsibility for protecting the nation from the power retained by the military resides within the military itself.

Historically, the U.S. has emphasized civilian control of the military to prevent the concentration of power, maintain a balance between the branches of government, and create a constraint on military power. This tradition, enshrined in the Constitution, designates the President as Commander-in-Chief while granting Congress the authority to declare war and oversee military funding. The third branch, the judiciary, can also constrain the military through legal means. The National Security Act of 1947 further underscores this principle by mandating civilian leadership of the DoD. Civilian leaders, particularly those in key positions within the DoD, must prioritize national interest and democratic values over political expediency. Constitutional mandates should guide their decisions rather than loyalty to any individual or political party. This approach ensures that military advice remains unbiased and that actions align with the broader goals of national security and constitutional integrity.

When civilian leaders exploit the military for personal, partisan, or unconstitutional purposes, they undermine public trust in what should be a neutral and professional institution because it is inherently powerful. Such actions jeopardize the democratic fabric by transforming the military into a tool for personal or partisan objectives rather than a defender of the nation. This potential misuse of military power can lead to disastrous consequences, including eroding civil-military relations, compromising national security, or a potential coup. When a branch of our government attempts to abuse military power, the answer must be “no.”

To mitigate these challenges, it is crucial to reinforce nonpartisanship and adherence to the Constitution among both civilian leaders and military personnel. This includes ensuring that military officers do not publicly advocate for specific policies and that civilian leaders respect established protocols for military advice. The Hatch Act and the Uniform Code of Military Justice (UCMJ) provide legal frameworks that support these principles by restricting political activities and maintaining order within the military.

Ultimately, and no matter who wins the next election, the military must remain a nonpartisan institution committed to defending the Constitution and the nation as a whole. Senior military officers can navigate the complex challenges of politicized civilian leadership by upholding their oath, adhering to legal protections, seeking legal counsel when necessary, and maintaining ethical standards. The same holds true for all officer and enlisted ranks, but senior officers are responsible for maintaining civil-military relations and, therefore, set the standard. This commitment to constitutional principles and democratic values is essential for preserving the integrity of civil-military relations, balancing power, and ensuring the continued functioning of American democracy.

For another perspective on the military and democracy, please watch this video discussing the topic between Secretary Mattis, General Kelley, and General Dunford: https://www.youtube.com/watch?v=78ApAtuO31w

 

 


[2] Cronk, Terri Moon. "Service Members, Civilians Bound By DOD Rules During Election Campaigns." U.S. Department of Defense, September 8, 2020. Accessed June 14, 2024. https://www.defense.gov/News/News-Stories/Article/62536/service-members-civilians-bound-by-dod-rules-during-election-campaigns/.

[3] Locke, John. 1690. "Second Treatise of Government."

[4] Montesquieu, Charles de. 1748. "The Spirit of the Laws."

[5] Hamilton, Alexander. 1788. "The Federalist Papers."

[6] Congressional Research Service. "Civilian Control of the Military." Updated 2020. https://crsreports.congress.gov/product/pdf/R/R44725.

[7] Ibid.

[8]  "To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations," War on the Rocks. September 6, 2022. https://warontherocks.com/2022/09/to-support-and-defend-principles-of-civilian-control-and-best-practices-of-civil-military-relations/

[9] Congressional Research Service. "Civilian Control of the Military." Updated 2020. https://crsreports.congress.gov/product/pdf/R/R44725.

[10] Feaver, Peter D., and Richard H. Kohn. "Civil-Military Relations in the United States: What Senior Leaders Need to Know (and Usually Don’t)." Strategic Studies Quarterly, Summer 2021, 12-36.

[11] To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations," War on the Rocks. September 6, 2022. https://warontherocks.com/2022/09/to-support-and-defend-principles-of-civilian-control-and-best-practices-of-civil-military-relations/

[12]  "Schmidt, Todd A., and Carrie Lee. "Civilian Control of the Military: A Crumbling Foundation?" War Room, U.S. Army War College, January 26, 2024.

[13]  "To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations," War on the Rocks. September 6, 2022. https://warontherocks.com/2022/09/to-support-and-defend-principles-of-civilian-control-and-best-practices-of-civil-military-relations/

[14] Ibid.

[15] Herring, George C. America's Longest War: The United States and Vietnam, 1950-1975. New York: McGraw-Hill, 1991.

[16] Ibid.

[17] Gordon, Michael R., and Bernard E. Trainor. Cobra II: The Inside Story of the Invasion and Occupation of Iraq. New York: Pantheon Books, 2006.

[18] Mason, Jeffery A. "The War Powers Resolution after Thirty Years." Presidential Studies Quarterly 34, no. 3 (2004): 536-558.

[19] Feaver, Peter D., and Christopher Gelpi. Choosing Your Battles: American Civil-Military Relations and the Use of Force. Princeton University Press, 2004.

[20] Greenhouse, Linda. "Justices, 6-3, Say Prisoners at Guantanamo Deserve Court Hearings." The New York Times, June 29, 2004.

[21] Woodward, Bob. Obama's Wars. New York: Simon & Schuster, 2010.

[22] Goldsmith, Jack. Power and Constraint: The Accountable Presidency After 9/11. New York: W. W. Norton & Company, 2012.

[23] Schake, Kori. America vs the West: Can the Liberal World Order Be Preserved? Stanford: Hoover Institution Press, 2021.

[24] Hascall, Susan C. "The U.S. Military's Role in Domestic Emergencies: Does the Posse Comitatus Act Still Apply?" Journal of National Security Law & Policy 12, no. 3 (2020): 473-502.

[25] Liptak, Adam. "Supreme Court Upholds Trump Travel Ban." The New York Times, June 26, 2018.

[26] Gibbons-Neff, Thomas, Helene Cooper, and Eric Schmitt. "Pentagon Weighs Proposals to Send Hundreds of Troops to Somalia." The New York Times, May 5, 2021.

[27] Stolberg, Sheryl Gay. "Biden Seeks a New Approach to the War Powers Act." The New York Times, March 5, 2021.

[28] Feaver, Peter D., and Richard H. Kohn. "Civil-Military Relations in the United States: What Senior Leaders Need to Know (and Usually Don’t)." Strategic Studies Quarterly, Summer 2021, 12-36.

[29] Herndon, Astead W., and Michael C. Bender. "Trump Plans to Purge Federal Workers in His Second Term." CNN. April 27, 2024. https://www.cnn.com/2024/04/27/politics/trump-federal-workers-2nd-term-invs/index.html.

[30] Heritage Foundation. "Project 2025." January 31, 2023. Accessed June 25, 2024. https://www.project2025.org/.

[31] Ibid.

[32] All Sides. "Project 2025 - Schedule F: Trump Executive Order to Fire Federal Employees Deemed to be Deep State." Posted June 6, 2024.

[33] Mascara, Lisa. "Conservative Groups Draw Up Plan to Dismantle the US Government and Replace It with Trump’s Vision." Associated Press, August 29, 2023. Accessed June 25, 2024. https://apnews.com/article/conservative-groups-plan-dismantle-us-government-2023.

[34] Ibid.

[35] Robinson, Lee, and Joseph G. Amoroso. "Military Personnel Swear Allegiance to the Constitution and Serve the American People – Not One Leader or Party." The Conversation, April 3, 2024. Accessed June 25, 2024.

[36] U.S. Code. 5 U.S.C. §§ 7321-7326. "The Hatch Act." & Public Law 96-303. "Code of Ethics for Government Service."














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