Academic journal article Duke Law Journal

Comment on Professor Yoo, Administration of War

Academic journal article Duke Law Journal

Comment on Professor Yoo, Administration of War

Article excerpt

Professor John Yoo performs a valuable service by attempting to apply the concepts of administrative law to civil-military relations. "Administrative law scholarship should pay attention to the armed forces," he asserts, "not just because it performs the most important function of the executive branch, but because it is the largest part of the executive branch." (1) What he does not remind readers, more importantly, is that control of armed force has been an issue since the beginning of government--because those who have the power to coerce also possess at least the potential to control society.

There is also benefit in applying principle-agent theory to improve civilian control in the executive branch. Professor Yoo notes persuasively that, in dealing with the military, the president possesses sufficient removal authority (2)--a chief tool of executive control--even if that power is in part limited by, among other things, the military's iconic status and special legitimacy in American society, factors that Yoo neglects. Indeed, he writes that "[r]emoval ... may be both too blunt and too narrow a tool to improve civil-military relations," (3) although Secretary of Defense Robert Gates has used it beneficially since 2006, whereas his predecessors foreswore it to their disadvantage.

Yet in seeking "to expand the field of inquiry" in administrative law to "the broader issue of control of the military," (4) Professor Yoo commits such fundamental errors of fact and interpretation as to invalidate his overall analysis and vitiate his suggestions.

Professor Yoo's most egregious error is to write about civilian control of the military as though it is exclusively a function of the executive branch. Most damaging is the claim that "[c]ivilian control of the military ... is expressed nowhere in the [U.S. Constitution] except in the Commander-in-Chief Clause." (5) Professor Yoo must mean "expressed" in the most literal and narrow (and thus misleading) terms because civilian control of the military pervades the Constitution to the point of obsession. Article I gives Congress the power to create or disband military forces, (6) make rules for their governance, (7) define the circumstances and procedures for mobilizing the state militias (and "provide for organizing, arming, and disciplining" them), (8) approve appointments of officers, (9) raise (and deny) money, (10) and more. (11) The federal judiciary possesses wide jurisdiction over the armed forces--even if judges and justices chose not to exercise that jurisdiction for many decades after the Constitution went into effect, and then to forfeit much of that jurisdiction during the Chief Justiceship of William Rehnquist. All officers of government must swear or affirm to support the Constitution, including its preamble to "insure domestic Tranquility" and "provide for the common defense." (12) The Framers understood that physical control of the armed forces was impossible. They wished no single branch to be able to control the armed forces lest that branch use the military to dominate the other branches and overthrow the Constitution itself. Divided, shared, differentiated, overlapping, and sometimes conflicting authority over the armed forces is the heart of civilian control in the U.S. Constitution, and civilian control in the United States has played out that way historically. (13) In his writing on war powers elsewhere, Professor Yoo seems to acknowledge this. (14)

In citing Alexander Hamilton in The Federalist Papers as the most authoritative understanding of presidential war powers (and, by extension, civil-military relations, which nest within various war powers), Professor Yoo misleads both himself and his readers. (15) Hamilton's views of executive power were extreme even in the 1780s and were largely opposed by contemporaries. As Richard Beeman notes in a thoughtful new history of the making of the Constitution, Hamilton's long speech ("five to six" hours) at the constitutional convention, proposing extraordinary power and authority for the presidency, "was greeted with a deafening silence. …

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