S. The U.S. Law of Civil-Military Relations

This seminar deals with the constitutional, statutory, and administrative law relating to civilian control of the military, including the bedrock principle of military non-involvement in domestic politics and law enforcement. Civilian control of the military reflects the larger constitutional separation of powers, with the two political branches acting to direct, limit or otherwise shape the warfighting and related military functions of the national government. The Constitution sometimes ordains that the political branches act together, as in the enactment of legislation, the confirmation and the appointment of military officers, or the appropriation process. On other occasions involving the military, the Constitution directs that one of the branches act alone, such as when the President or Secretary of Defense establishes policy or deploys military personnel as a function of Commander-in Chief authority. The extent to which the Judicial Branch may decide separation-of-powers disputes between the political branches in military matters or review the military judgments they reach is an important and complex issue.

The lines between the civilian and military worlds seem more blurred today than ever before, exacerbating weighty issues in the everyday U.S. law of civil-military relations beyond such high-stakes scenarios directly implicating the President. Social issues like abortion, transgender rights, vaccine mandates, religious freedom, sex- and race- based discrimination, and criminal justice reform affect both worlds in equal measure. To what extent should the Supreme Court and other federal courts give military decisionmakers deference to chart their own course on these controversial issues? Should military decisions in some areas, such as personnel or the deployment of troops, enjoy greater deference than those in others, such as procurement? Moreover, the Department of Defense (DoD) has increasingly assumed important missions beyond the defense of the nation against foreign militaries, such as border control, quelling civil disturbances, covid operations, and disaster relief. Even if, as the Civil War and its aftermath indicate, the President may deploy federal military forces against rebels and insurrectionists, what checks do the Constitution and relevant statutes place on such deployments? These are some of the questions this course will address.