The Military Plays No Part in the Constitution’s ‘Checks and Balances’ 

Recent reports demonstrate a frightening willingness by Joint Chiefs of Staff Chairman Mark Milley and other high-ranking generals to undermine President Trump during the final year of his administration.  These efforts began with some grumbling about the use of the military to enforce law and order during the Black Lives Matter riots of last summer. They reached a fever pitch during the uncertain period between the election of 2020 and the inauguration of Joe Biden.

Milley expressed contempt for protesters supporting President Trump, comparing them to “Brownshirts” and “Nazis.” He described Trump’s challenges to election results as a “Reichstag moment.” He even tried to say something profound: “Everything’s going to be OK. We’re going to have a peaceful transfer of power. We’re going to land this plane safely. This is America. It’s strong. The institutions are bending, but it won’t break.” 

It is apparent top military officers conceive of the military as a critical part of the Constitution’s checks and balances, with a duty to review, rank, or resist the president’s orders as they deem appropriate

The President Is the Commander in Chief

This push towards military independence from presidential control has been underway for a while. When Trump wanted to leave Syria, the president’s military advisers lied to him about troop levels. When Trump wanted to deploy the National Guard to quell violent rioting, military officials ordered that troops would not be armed. Later, on his own initiative, Milley bragged of creating a “Ring of Steel” around the Capitol to protect it from “Nazis.” 

Milley’s greatest regret does not appear to be his role in the failed mission in Afghanistan, or the recent conversion of the military into a woke struggle session, or the fiscal disaster that is procurement. Rather, he seems most determined to atone for criticism he received for accompanying Trump and other executive officials in a survey of Lafayette Park. After this entirely defensible episode, the sting from his peers and the media was too much to bear. He became a born-again convert to wokeism, committed to proving his own loyalty to the Washington, D.C. political class. 

While Milley and others wrap their power grab in the rhetoric of upholding constitutional principles, a cursory review of the Constitution and the founders’ writings shows that this is just a pose.  

The founders were concerned with striking a balance: to create a sufficiently energetic government to protect the nation from internal and external troubles, while avoiding the kind of power that is beyond the control of the people or otherwise a threat to their rights. Thus, the words Army and Navy appear only once each in the Constitution: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” 

Regarding this language, Alexander Hamilton elaborated in Federalist 74

The propriety of this provision is so evident in itself; and it is at the same time so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them, which have in other respects coupled the Chief Magistrate with a Council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms an usual and essential part in the definition of the executive authority.

In other words, whether Trump or Biden, the president alone is supposed to be in charge of the military. Even if other parts of government are conducted by committee, this requires singular leadership. The honor of officers and enlisted alike is intact so long as they are subordinate to him. When a group of military officers gets together to conspire against the orders of the commander in chief, it is a real case of mutiny and treason. 

Within the military, there is an exception to the duty of obedience for “illegal orders.” But that is a very narrow category, typically limited to war crimes. There is no right to disobey the president on matters of policy. Generals are not constitutional scholars. Orders are presumptively valid, and disobedience is done at one’s peril

Then Who Checks the President?

This notion of individuals within the executive branch being a check on the president is a peculiar one. One branch cannot check itself. The executive from whom their power is derived is the president. We saw the first hint of this novelty in Lieutenant Colonel Alexander Vindman’s stated belief that the president had no authority to countermand the “consensus views of the interagency.” 

The Constitution provides for three branches of government, each having separate powers. They have the limited ability to check and balance one another. Two of the branches have direct democratic accountability. The judiciary is uniquely independent of ordinary politics, but it is limited by the “case and controversy” requirement, and its members obtain their appointments from the combined decision-making of the executive and legislative branch. Executive branch agencies, bureaucrats, and most especially the military are never supposed to be a check or balance against anyone, especially the president. 

Milley has said he doesn’t want the military to be political. This is a high order. As Clausewitz famously observed, “War is a continuation of politics by other means.” Furthermore, the military is controlled by an elected politician. While the military cannot avoid politics altogether, it can avoid becoming partisan and dangerous by remaining subordinate to the democratically accountable commander in chief. 

Milley and others have the option to resign and should be disciplined if they defy these limits.

“Higher Loyalty” to the D.C. Hive Mind

The military’s recent foray into left-leaning partisanship is particularly toxic, because Milley, former Secretary of Defense James Mattis, and their fellow travelers take their cues from the “hive mind” of Washington, D.C. In the capital, the unelected bureaucrats, think-tankers, journalists, lawyers, and perfumed princes make up a privileged and insular managerial class, whose interests and views of the world deviate widely from the country at large. 

In the name of defending the Constitution and its principles, the deep state and its military fellow travelers have expressed a far greater threat to democratic self-government than Trump’s challenge to the election results in the courts and in the court of public opinion. Now that someone more compliant is in office, the same people ominously offer the military to occupy the nation’s capital and turn their arms against Americans, whom they defame as Nazis. 

The chief barrier to the domestic misuse of the military is the democratic accountability and control of the president, along with the “doomsday option” of American arms. But it is not clear the military would be turned back from such efforts if some future election turned out “wrong” and the military and the managerial class deemed these efforts essential to fight against “domestic extremism.” 

After all, we saw civil servants, FBI heads, and military officers willingly take up the mantle of #TheResistance in response to Trump’s 2016 victory. The military, along with many others in the executive branch, convinced themselves they are entitled to resist presidents and policies they do not like in the name of vague principles derived from the Constitution, even though the words of the Constitution say the opposite. 

The military’s embrace of such a principle would mean the true death of constitutionally limited government. If the military conceives of itself as subordinate not to the elected president but to an unelected managerial class, the founders’ seemingly archaic concern for standing armies would be proven to be more relevant than ever.

About Christopher Roach

Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, The Journal of Property Rights in Transition, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.

Photo: Saul Loeb/AFP via Getty Images

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