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Indiana Law Journal

Document Type

Symposium

Publication Date

Winter 2018

Publication Citation

93 Indiana Law Journal 241 (2018)

Abstract

In the symposium Essay that follows, I aim to push back against this impression by introducing readers to an important—but little-known—constraint on the militarization of civilian government: the ban on active-duty military officers holding “civil office” codified today at 10 U.S.C. § 973(b). Like its far-better-known contemporary, the Posse Comitatus Act of 1878, the civil office ban was enacted after the Civil War as a means of limiting the ability of the military to exercise control over civilian matters. As the Ninth Circuit put it in 1975, its purpose was “to assure civilian preeminence in government, i.e., to prevent the military establishment from insinuating itself into the civil branch of government and thereby growing ‘para-mount’ to it.”

To that end, the ban as initially enacted prohibited active-duty military officers from holding any “civil office” within the federal government. And although Congress has narrowed its scope somewhat over time, the ban remains in place to-day—and is the principal reason why, for example, only retired service members can be named to the Cabinet (or most other government positions requiring Senate confirmation), and why active-duty military officers may not run for elective office (at any level of government).

Forests have been felled on the Posse Comitatus Act (which prohibits the use of the Army or Air Force for civilian law enforcement without specific congressional authorization), and its significance in protecting both civilian control of the military and the closely related but distinct principle of military noncontrol of civilians. In contrast, outside of the government, surprisingly little has been written about the civil office ban—perhaps because it has been the subject of remarkably little controversy or litigation in its 147 years on the books. Indeed, until recently, the most detailed discussions of § 973(b) all could be found in internal government memoranda and legal opinions—which consistently read the provision capaciously. Simply put, the civil office ban just was not a source of political or legal controversy for most of its history.

As Part II demonstrates, that is no longer the case, thanks to a series of disputes that have emerged from the appointment of military officers to serve as judges on the U.S. Court of Military Commission Review (CMCR), the intermediate appeals court Congress created in 2006 in between the trial-level Guantánamo military commissions and the U.S. Court of Appeals for the D.C. Circuit. After walking through the background that led to the current cases, Part II introduces the three appellate decisions construing § 973(b) to date—which have, between them, offered a series of less-than-convincing (and, in some cases, internally inconsistent) interpretations of the ban. Although the Supreme Court will have the last word in these cases, Part II concludes by highlighting some of the potential implications if the lower courts’ interpretations of the civil office ban to date are left intact.

Finally, Part III takes a step back from the current cases to reflect on the broader structural significance of the civil office ban in our constitutional system. Although we take the principle of civilian control of the military (and military noncontrol of civilians) for granted, it turns out that, as the civil office ban illustrates, many of its most significant manifestations are statutory, not constitutional. As Part III concludes, that understanding does not dilute the force or importance of the principle, but it does increase its vulnerability—to both unwarranted statutory interventions and unjustified judicial constructions. Especially at this moment in American history, then, the Essay suggests that discussions of the future of the U.S. Constitution ought to include the role of these kinds of statutes in protecting longstanding and fundamental norms such as those governing the relationship between civilian and military authority. And the statutes themselves should be interpreted broadly to vindicate their purpose—and, as importantly, amended begrudgingly.

The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.

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