University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2021 Congress's Power over Militay Offices Zachary S. Price UC Hastings College of the Law, [email protected] Follow this and additional works at: https://repository.uchastings.edu/faculty_scholarship Recommended Citation Zachary S. Price, Congress's Power over Militay Offices, 99 Tex. L. Rev. 491 (2021). Available at: https://repository.uchastings.edu/faculty_scholarship/1843 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. PRICE.PRINTER.DOCX (DO NOT DELETE) 2/22/21 12:56 PM Congress’s Power over Military Offices Zachary S. Price* Although scholars have explored at length the constitutional law of office- holding with respect to civil and administrative offices, parallel questions regarding military office-holding have received insufficient attention. Even scholars who defend broad congressional authority to structure civil administration typically presume that the President, as Commander in Chief, holds greater authority over the military. For its part, the executive branch has claimed plenary authority over assignment of military duties and control of military officers. This pro-presidential consensus is mistaken. Although the President, as Commander in Chief, must have some form of directive authority over U.S. military forces in the field, the constitutional text and structure, read in light of longstanding historical practice, give Congress extensive power to structure the offices, chains of command, and disciplinary mechanisms through which the President’s authority is exercised. In particular, much as in the administrative context, Congress may vest particular powers and duties—authority to launch nuclear weapons or a cyber operation, for example, or command over particular units—in particular statutorily created offices. In addition, although the Constitution affords presidents removal authority as a default means of command discipline, Congress may supplant and limit this authority by replacing it with alternative disciplinary mechanisms, such as criminal penalties for disobeying lawful orders. By defining duties, command relationships, and disciplinary mechanisms in this way, Congress may establish structures of executive branch accountability that promote key values, protect military professionalism, and even encourage or discourage particular results, all without infringing upon the President’s ultimate authority to direct the nation’s armed forces. These conclusions bear directly on recent legislative proposals to vest authority over cyber weapons, force withdrawals, or nuclear weapons in officers other than the President. They also enable a potent critique of the Supreme Court’s recent insistence on a “unitary” executive branch in Seila Law LLC v. Consumer Financial Protection * Harry & Lillian Hastings Research Chair, UC Hastings Law. For helpful comments on earlier drafts, I thank Hadar Aviram, Alina Ball, Will Baude, Jud Campbell, Nathan Chapman, John Dehn, Areto Imoukhuede, Chimene Keitner, Marty Lederman, Robert Leider, Michael McConnell, Mark Nevitt, Dave Owen, Nick Parrillo, Dorit Reiss, Lori Ringhand, Jodi Short, Kevin Stack, David Takacs, Matthew Waxman, and participants in the Fourth Annual Administrative Law New Scholarship Roundtable, the 2019 SEALS New Scholars Workshop, and the 2020 Stanford Constitutional Law Center Fellows Workshop. I thank the UC Hastings Academic Dean for generous support; the UC Hastings librarians, especially Chuck Marcus and Vince Moyer, for help finding many obscure sources; and Clara Barnosky for superb research assistance. PRICE.PRINTER.DOCX (DO NOT DELETE) 2/22/21 12:56 PM 492 Texas Law Review [Vol. 99:491 Bureau, and they shed new light on broader separation-of-powers debates over executive-branch structure, conventions of governmental behavior, the civil service’s constitutionality, and Reconstruction’s historical importance. INTRODUCTION ...........................................................................................493 I. BACKGROUND ON MILITARY OFFICES AND APPOINTMENTS .............499 A. Article II’s Text and Its Ambiguities .......................................499 B. Which Positions Are Offices? ..................................................505 C. How Are Officers Appointed? .................................................506 II. ASSIGNMENT OF DUTIES .....................................................................508 A. Text, Structure, and Current Practice .......................................511 1. Congressional Authority Over Nonmilitary Duties ................511 2. The Theory Extended to Military Duties ................................512 3. Contemporary Statutes ..........................................................516 B. Historical Debates ....................................................................519 1. Early Statutes and Practice ...................................................519 2. Captain Meigs and the Washington Aqueduct .......................523 3. The Civil War ........................................................................526 4. Reconstruction ......................................................................527 a. Statutory Architecture .....................................................528 b. Practical Operation .........................................................530 c. Interpreting Reconstruction Examples .............................533 5. World War I ..........................................................................536 6. World War II .........................................................................538 7. The National Security Act of 1947 .........................................539 8. The Goldwater–Nichols Act of 1986 ......................................542 C. Implications ..............................................................................545 III. PRESIDENTIAL REMOVAL AUTHORITY ...............................................547 A. Congress’s Power to Limit Presidential Removal ...................548 1. The Constitutional Text and Structure ...................................548 a. Removal as Default Commander-in-Chief Authority ........548 b. The Complicating Factor of Military Discipline ..............551 i. Statutory Architecture ..................................................551 ii. Constitutional Questions .............................................553 2. Historical Liquidation, De-Liquidation, and Re-Liquidation ....................................................................555 a. The Antebellum Understanding .......................................555 b. The Reconstruction Watershed ........................................558 c. Curious Judicial and Executive Decisions .......................560 d. An Illuminating Later Debate—Plus a Telling Modern Example .............................................................563 B. Implications ..............................................................................566 PRICE.PRINTER.DOCX (DO NOT DELETE) 2/22/21 12:56 PM 2021] Congress’s Power over Military Offices 493 IV. OFFICE-HOLDING BEYOND THE MILITARY ........................................568 A. Interring the Unitary Executive Branch ...................................569 B. Convention and Constraint ......................................................571 C. Securing the Civil Service .......................................................574 D. Reconstruction’s Centrality .....................................................577 CONCLUSION ..............................................................................................578 Introduction Recent events have highlighted office-holding’s importance as a constraint on modern presidents. By vesting authorities in subordinate offices rather than the presidency, Congress may place friction between presidential desires and policy outcomes, even when the officer in question is subject to at-will removal. Doing so may help maintain agency adherence to legal requirements, ensure fidelity to agency statutory missions, and enable political enforcement of norms and conventions regarding appropriate conduct. Although examples of these effects stretch across American history, President Donald Trump’s failure to fire a special prosecutor investigating his presidential campaign provides a salient recent illustration: Because the power to hire and fire special counsels belonged to the Attorney General, not the President, Trump likely could have ousted the prosecutor only by firing the Attorney General (or Acting Attorney General), but doing so would have risked political backlash. Congressional authority over offices—its power to vest duties in subordinate offices and structure the executive branch—thus appears practically important, as indeed scholars of administrative law have long recognized. Yet despite extensive debate over relative presidential and congressional authority with respect to regulatory policy and administrative governance, parallel questions regarding military functions have received insufficient attention. Even scholars who take broad views of congressional authority in the administrative context have typically assumed that the President, as Commander in Chief, must have plenary authority over military functions.1 For