Civilian Control Of The Military, An Unconventional Test Case

By Nethani Palmani | Mar 01, 2017 07:58 AM EST

The Supreme Court has never had a case about the dual-officeholding statute in the 147 years it’s been on the books. (Photo : Eric Thayer / Getty Images)

Lt. Gen. H.R. McMaster's appointment to succeed Michael Flynn as National Security Advisor has generally received positive support from the public. However, one detail that's gotten surprisingly little attention is his status as an active-duty military officer, that perhaps revisits the principle of civilian control of the military.

Firstly, there is no legal obstruction to an active-duty military officer serving as National Security Advisor, because the position neither requires Senate confirmation nor appears at levels I-V of the Executive Schedule. Still, there's a somewhat unsettling vibe of militarization among what has, historically, been an overwhelmingly civilian cohort.

The Congressional Research Service explains the principle of civilian control of the military as placing ultimate authority over U.S. armed services in the hands of civilian leadership. It keeps the civilian responsibility and control of the military balanced between the executive and legislative branches of the government.

The United States has kept the balance through formulating and promulgating the principle of civilian control of the military. It is remarkable how this principle, by most accounts, has remained relatively unchallenged over the course of American history.

One of the reasons why the principle of civilian control of the military has remained relatively unchallenged is because there have been remarkably few flashpoints in which it has been put to the test. A few cases reaching the Supreme Court this month, however, provided a rare counterexample.

The cases present very specific questions, like whether or not active-duty military officers can serve as "additional judges" on the U.S. Court of Military Commission Review (CMCR). While it may not appear to be a direct assault on the principle of civilian control of the military to have active-duty military officers serve as CMCR judges, it is an assault nevertheless, as it opens the door to an expansive service by active-duty military officers in positions (like Article I judgeships) historically reserved to civilians.

The Supreme Court has never had a case about the dual-officeholding statute in the 147 years it's been on the books. But now, with a bit of leap of McMaster to serve by active-duty military officers as CMCR judges, it may well be the right time for the Court to reaffirm the role of certain status in the constitutional system, and to reassert the preference for civilian control of the military that such statutes enshrine.

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