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The Power to Raise and Maintain Armed Forces

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THE POWER TO RAISE AND MAINTAIN ARMED FORCES

Purpose of Specific Grants

The clauses of the Constitution, which give Congress authority to raise and support armies, and so forth, were not inserted to endow the national government rather than the States with the power to do these things but to designate the department of the Federal Government which would exercise the powers. As we have noted above, the English king was endowed with the power not only to initiate war but the power to raise and maintain armies and navies.1523 Aware historically that these powers had been utilized to the detriment of the liberties and well-being of Englishmen and aware that in the English Declaration of Rights of 1688 it was insisted that standing armies could not be maintained without the consent of Parliament, the Framers vested these basic powers in Congress.1524

Time Limit on Appropriations for the Army

Prompted by the fear of standing armies to which Story alluded, the framers inserted the limitation that “no appropriation of money to that use shall be for a longer term than two years.” In 1904, the question arose whether this provision would be violated if the Government contracted to pay a royalty for use of a patent in constructing guns and other equipment where the payments are likely to continue for more than two years. Solicitor-General Hoyt ruled that such a contract would be lawful; that the appropriations limited by the Constitution “are those only which are to raise and support armies in the strict sense of the word ‘support,’ and that the inhibition of that clause does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for the common defense....”1525 Relying on this earlier opinion, Attorney General Clark ruled in 1948 that there was “no legal objection to a request to the Congress to appropriate funds to the Air Force for the procurement of aircraft and aeronautical equipment to remain available until expended.”1526

Conscription

The constitutions adopted during the Revolutionary War by at least nine of the States sanctioned compulsory military service.1527 Towards the end of the War of 1812, conscription of men for the army was proposed by James Monroe, then Secretary of War, but opposition developed and peace came before the bill could be enacted.1528 In 1863, a compulsory draft law was adopted and put into operation without being challenged in the federal courts.1529 Not so the Selective Service Act of 1917.1530 This measure was attacked on the grounds that it tended to deprive the States of the right to “a well-regulated militia,” that the only power of Congress to exact compulsory service was the power to provide for calling forth the militia for the three purposes specified in the Constitution, which did not comprehend service abroad, and finally that the compulsory draft imposed involuntary servitude in violation of the Thirteenth Amendment. The Supreme Court rejected all of these contentions. It held that the powers of the States with respect to the militia were exercised in subordination to the paramount power of the National Government to raise and support armies, and that the power of Congress to mobilize an army was distinct from its authority to provide for calling the militia and was not qualified or in any wise limited thereby.1531

1523 W. BLACKSTONE, COMMENTARIES 263 (St. G. Tucker ed., 1803).

1524 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES 1187 (1833).

1525 25 Ops. Atty. Gen. 105, 108 (1904).

1526 40 Ops. Atty. Gen. 555 (1948).

1527 Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox v. Wood, 247 U.S. 3 (1918).

1528 245 U.S. at 385.

1529 245 U.S. at 386–88. The measure was upheld by a state court. Kneedler v. Lane, 45 Pa. St. 238 (1863).

1530 Act of May 18, 1917, ch. 15, 40 Stat. 76.

1531 Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918).

Before the United States entered the first World War, the Court had anticipated the objection that compulsory military service would violate the Thirteenth Amendment and had answered it in the following words: “It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.”1532 Accordingly, in the Selective Draft Law Cases,1533 it dismissed the objection under that amendment as a contention that was “refuted by its mere statement.”1534

Although the Supreme Court has so far formally declined to pass on the question of the “peacetime” draft,1535 its opinions leave no doubt of the constitutional validity of the act. In United States v. O’Brien,1536 upholding a statute prohibiting the destruction of selective service registrants’ certificate of registration, the Court, speaking through Chief Justice Warren, thought “[t]he power of Congress to classify and conscript manpower for military service is ‘beyond question.’”1537 In noting Congress’ “broad constitutional power” to raise and regulate armies and navies,1538 the Court has specifically observed that the conscription act was passed “pursuant to” the grant of authority to Congress in clauses 12–14.1539

1532 Butler v. Perry, 240 U.S. 328, 333 (1916).

1533 245 U.S. 366 (1918).

1534 245 U.S. at 390.

1535 Universal Military Training and Service Act of 1948, 62 Stat. 604, as amended, 50 U.S.C. App. §§ 451–473. Actual conscription has been precluded as of July 1, 1973, P.L. 92–129, 85 Stat. 353, 50 U.S.C. App. § 467(c), and registration was discontinued in 1975. Pres. Proc. No. 4360, 3 C.F.R. 462, 50 U.S.C. App. § 453 note. Registration, but not conscription, was reactivated in the wake of the invasion of Afghanistan. P.L. 96–282, 94 Stat. 552 (1980).

1536 391 U.S. 367 (1968).

1537 391 U.S. at 377, quoting Lichter v. United States, 334 U.S. 742, 756 (1948).

1538 Schlesinger v. Ballard, 419 U.S. 498, 510 (1975).

1539 Rostker v. Goldberg, 453 U.S. 57, 59 (1981). See id. at 64–65. And see Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984) (upholding denial of federal financial assistance under Title IV of the Higher Education Act to young men who fail to register for the draft).

Care of the Armed Forces

Scope of the congressional and executive authority to prescribe the rules for the governance of the military is broad and subject to great deference by the judiciary. The Court recognizes “that the military is, by necessity, a specialized society separate from civilian society,” that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian,” and that “Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which [military society] shall be governed than it is when prescribing rules for [civilian society].”1540 Denying that Congress or military authorities are free to disregard the Constitution when acting in this area,1541 the Court nonetheless operates with “a healthy deference to legislative and executive judgments” with respect to military affairs,1542 so that, while constitutional guarantees apply, “the different character of the military community and of the military mission requires a different application of those protections.”1543

In reliance upon this deference to congressional judgment with respect to the roles of the sexes in combat and the necessities of military mobilization, coupled with express congressional consideration of the precise questions, the Court sustained as constitutional the legislative judgment to provide only for registration of males for possible future conscription.1544 Emphasizing the unique, separate status of the military, the necessity to indoctrinate men in obedience and discipline, the tradition of military neutrality in political affairs, and the need to protect troop morale, the Court upheld the validity of military post regulations, backed by congressional enactments, banning speeches and demonstrations of a partisan political nature and the distribution of literature without prior approval of post headquarters, with the commander authorized to keep out only those materials that would clearly endanger the loyalty, discipline, or morale of troops on the base.1545 On the same basis, the Court rejected challenges on constitutional and statutory grounds to military regulations requiring servicemen to obtain approval from their commanders before circulating petitions on base, in the context of circulations of petitions for presentation to Congress.1546 And the statements of a military officer urging disobedience to certain orders could be punished under provisions that would have been of questionable validity in a civilian context.1547 Reciting the considerations previously detailed, the Court has refused to allow enlisted men and officers to sue to challenge or set aside military decisions and actions.1548

1540 Parker v. Levy, 417 U.S. 733, 743–752 (1974). See also Orloff v. Willoughby, 345 U.S. 83, 93–94 (1953); Schlesinger v. Councilman, 420 U.S. 738, 746–748 (1975); Greer v. Spock, 424 U.S. 828, 837–838 (1976); Middendorf v. Henry, 425 U.S. 25, 45–46 (1976); Brown v. Glines, 444 U.S. 348, 353–358 (1980); Rostker v. Goldberg, 453 U.S. 57, 64–68 (1981).

1541 Rostker v. Goldberg, 453 U.S. 57, 67 (1981).

1542 453 U.S. at 66. “[P]erhaps in no other area has the Court accorded Congress greater deference.” Id. at 64–65. See also Gilligan v. Morgan, 413 U.S. 1, 10 (1973).

1543 Parker v. Levy, 417 U.S. 733, 758 (1974). “[T]he tests and limitations [of the Constitution] to be applied may differ because of the military context.” Rostker v. Goldberg, 453 U.S. 57, 67 (1981).

1544 Rostker v. Goldberg, 453 U.S. 57 (1981). Compare Frontiero v. Richardson, 411 U.S. 677 (1973), with Schlesinger v. Ballard, 419 U.S. 498 (1975).

1545 Greer v. Spock, 424 U.S. 828 (1976), limiting Flower v. United States, 407 U.S. 197 (1972).

1546 Brown v. Glines, 444 U.S. 348 (1980); Secretary of the Navy v. Huff, 444 U.S. 453 (1980). The statutory challenge was based on 10 U.S.C. § 1034, which protects a serviceman’s right to communicate with a Member of Congress, but which the Court interpreted narrowly.

1547 Parker v. Levy, 417 U.S. 733 (1974).

1548 Chappell v. Wallace, 462 U.S. 296 (1983) (enlisted men charging racial discrimination by their superiors in duty assignments and performance evaluations could not bring constitutional tort suits); United States v. Stanley, 483 U.S. 669 (1987) (officer who had been an unwitting, unconsenting subject of an Army experiment to test the effects of LSD on human subjects could not bring a constitutional tort for damages). These considerations are also the basis of the Court’s construction of the Federal Tort Claims Act so that it does not reach injuries arising out of or in the course of military activity. Feres v. United States, 340 U.S. 135 (1950). In United States v. Johnson, 481 U.S. 681 (1987), four Justices urged reconsideration of Feres, but that has not occurred.

Congress has a plenary and exclusive power to determine the age at which a soldier or seaman shall be received, the compensation he shall be allowed, and the service to which he shall be assigned. This power may be exerted to supersede parents’ control of minor sons who are needed for military service. Where the statute requiring the consent of parents for enlistment of a minor son did not permit such consent to be qualified, their attempt to impose a condition that the son carry war risk insurance for the benefit o his mother was not binding on the Government.1549 Since the possession of government insurance payable to the person of his choice is calculated to enhance the morale of the serviceman, Congress may permit him to designate any beneficiary he desires, irrespective of state law, and may exempt the proceeds from the claims of creditors.1550 Likewise, Congress may bar a State from taxing the tangible, personal property of a soldier, assigned for duty therein, but domiciled elsewhere.1551 To safeguard the health and welfare of the armed forces, Congress may authorize the suppression of bordellos in the vicinity of the places where forces are stationed.1552

1549 United States v. Williams, 302 U.S. 46 (1937). See also In re Grimley, 137 U.S. 147, 153 (1890); In re Morrissey, 137 U.S. 157 (1890).

1550 Wissner v. Wissner, 338 U.S. 655 (1950); Ridgway v. Ridgway, 454 U.S. 46 (1981). In the absence of express congressional language, like that found in Wissner, the Court nonetheless held that a state court division under its community property system of an officer’s military retirement benefits conflicted with the federal program and could not stand. McCarty v. McCarty, 453 U.S. 210 (1981). See also Porter v. Aetna Casualty Co., 370 U.S. 159 (1962) (exemption from creditors’ claims of disability benefits deposited by a veteran’s guardian in a savings and loan association).

1551 Dameron v. Brodhead, 345 U.S. 322 (1953). See also California v. Buzard, 382 U.S. 386 (1966); Sullivan v. United States, 395 U.S. 169 (1969).

1552 McKinley v. United States, 249 U.S. 397 (1919).

Trial and Punishment of Offenses: Servicemen, Civilian Employees, and Dependents

Under its power to make rules for the government and regulation of the armed forces, Congress has set up a system of criminal law binding on all servicemen, with its own substantive laws, its own courts and procedures, and its own appeals procedure.1553 The drafters of these congressional enactments conceived of a military justice system with application to all servicemen wherever they are, to reservists while on inactive duty training, and to certain civilians in special relationships to the military. In recent years, all these conceptions have been restricted.

Servicemen.—Although there had been extensive disagreement about the practice of court-martial trial of servicemen for nonmilitary offenses,1554 the matter never was raised in substantial degree until the Cold War period when the United States found it essential to maintain both at home and abroad a large standing army in which great numbers of servicemen were draftees. In O’Callahan v. Parker,1555 the Court held that court-martial jurisdiction was lacking to try servicemen charged with a crime that was not “service connected.” The Court attempted to assay no definition of “service connection,” but among the factors it noted were that the crime in question was committed against a civilian in peacetime in the United States off-base while the serviceman was lawfully off duty.1556 O’Callahan was overruled in Solorio v. United States,1557 the Court holding that “the requirements of the Constitution are not violated where . . . a court-martial is convened to try a serviceman who was a member of the armed services at the time of the offense charged.”1558 Chief Justice Rehnquist’s opinion for the Court insisted that O’Callahan had been based on erroneous readings of English and American history, and that “the service connection approach . . . has proved confusing and difficult for military courts to apply.”1559

1553 The Uniform Code of Military Justice of 1950, 64 Stat. 107, as amended by the Military Justice Act of 1968, 82 Stat. 1335, 10 U.S.C. § 801 et seq. For prior acts, see 12 Stat. 736 (1863); 39 Stat. 650 (1916). See Loving v. United States, 517 U.S. 748 (1996) (in context of the death penalty under the UCMJ).

1554 Compare Solorio v. United States, 483 U.S. 435, 441–47 (1987) (majority opinion), with id. at 456–61 (dissenting opinion), and O’Callahan v. Parker, 395 U.S. 258, 268–72 (1969) (majority opinion), with id. at 276–80 (Justice Harlan dissenting). See Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 VAND. L. REV. 435 (1960).

1555 395 U.S. 258 (1969).

1556 395 U.S. at 273–74. See also Relford v. Commandant, 401 U.S. 355 (1971); Gosa v. Mayden, 413 U.S. 665 (1973).

1557 483 U.S. 435 (1987).

1558 483 U.S. at 450–51.

1559 483 U.S. at 448. Although the Court of Military Appeals had affirmed Solorio’s military-court conviction on the basis that the service-connection test had been met, the Court elected to reconsider and overrule O’Callahan altogether.

With regard to trials before courts-martial, it is not clear what provisions of the Bill of Rights and other constitutional guarantees do apply. The Fifth Amendment expressly excepts “[c]ases arising in the land and naval forces” from its grand jury provision, and there is an implication that these cases are also excepted from the Sixth Amendment.1560 The double jeopardy provision of the Fifth Amendment appears to be applicable.1561 The Court of Military Appeals now holds that servicemen are entitled to all constitutional rights except those expressly or by implication inapplicable to the military.1562 The Uniform Code of Military Justice, supplemented by the Manual for Courts-Martial, affirmatively grants due process rights roughly comparable to civilian procedures, so that many such issues are unlikely to arise absolutely necessitating constitutional analysis.1563 However, the Code leaves intact much of the criticized traditional structure of courts-martial, including the pervasive possibilities of command influence,1564 and the Court of Military Appeals is limited on the scope of its review,1565 thus creating areas in which constitutional challenges are likely.

1560 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123, 138–139 (1866); Ex parte Quirin, 317 U.S. 1, 40 (1942). The matter was raised but left unresolved in Middendorf v. Henry, 425 U.S. 25 (1976).

1561 See Wade v. Hunter, 336 U.S. 684 (1949). Cf. Grafton v. United States, 206 U.S. 333 (1907).

1562 United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244 (1960); United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). This conclusion by the Court of Military Appeals is at least questioned and perhaps disapproved in Middendorf v. Henry, 425 U.S. 25, 43–48 (1976), in the course of overturning a CMA rule that counsel was required in summary court-martial. For the CMA’s response to the holding see United States v. Booker, 5 M. J. 238 (C.M.A. 1977), rev’d in part on reh., 5 M. J. 246 (C.M.A. 1978).

1563 The UCMJ guarantees counsel, protection from self-incrimination and double jeopardy, and warnings of rights prior to interrogation, to name a few.

1564 Cf. O’Callahan v. Parker, 395 U.S. 258, 263–264 (1969).

1565 10 U.S.C. § 867.

Upholding Articles 133 and 134 of the Uniform Code of Military Justice, the Court stressed the special status of military society.1566 This difference has resulted in a military Code regulating aspects of the conduct of members of the military that in the civilian sphere would go unregulated, but on the other hand the penalties imposed range from the severe to well below the threshold of that possible in civilian life. Because of these factors, the Court, while agreeing that constitutional limitations applied to military justice, was of the view that the standards of constitutional guarantees were significantly different in the military than in civilian life. Thus, the vagueness challenge to the Articles was held to be governed by the standard applied to criminal statutes regulating economic affairs, the most lenient of vagueness standards.1567 Neither did application of the Articles to conduct essentially composed of speech necessitate a voiding of the conviction, inasmuch as the speech was unprotected, and, even while it might reach protected speech the officer here was unable to raise that issue.1568

Military courts are not Article III courts but agencies established pursuant to Article I.1569 It was established in the last century that the civil courts have no power to interfere with courts-martial and that court-martial decisions are not subject to civil court review.1570 Until August 1, 1984, the Supreme Court had no jurisdiction to review by writ of certiorari the proceedings of a military commission, but Congress has now conferred appellate jurisdiction of decisions of the Court of Military Appeals.1571 Prior to this time, civil court review of court-martial decisions was possible through habeas corpus jurisdiction,1572 an avenue that continues to exist, but the Court severely limited the scope of such review, restricting it to the issue whether the court-martial has jurisdiction over the person tried and the offense charged.1573 In Burns v. Wilson,1574 however, at least seven Justices appeared to reject the traditional view and adopt the position that civil courts on habeas corpus could review claims of denials of due process rights to which the military had not given full and fair consideration. Since Burns, the Court has thrown little light on the range of issues cognizable by a federal court in such litigation1575 and the lower federal courts have divided several ways.1576

1566 Parker v. Levy, 417 U.S. 733 (1974). Article 133 punishes a commissioned officer for “conduct unbecoming an officer and gentleman,” and Article 134 punishes any person subject to the Code for “all disorders and neglects to the prejudice of good order and discipline in the armed forces.”

1567 417 U.S. at 756.

1568 417 U.S. at 757-61.

1569 Kurtz v. Moffitt, 115 U.S. 487 (1885); Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858). Judges of Article I courts do not have the independence conferred by security of tenure and of compensation.

1570 Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858).

1571 Military Justice Act of 1983, P.L. 98–209, 97 Stat. 1393, 28 U.S.C. § 1259.

1572 Cf. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869); Ex parte Reed, 100 U.S. 13 (1879). While federal courts have jurisdiction to intervene in military court proceedings prior to judgment, as a matter of equity, following the standards applicable to federal court intervention in state criminal proceedings, they should act when the petitioner has not exhausted his military remedies only in extraordinary circumstances. Schlesinger v. Councilman, 420 U.S. 738 (1975).

1573 Ex parte Reed, 100 U.S. 13 (1879); Swaim v. United States, 165 U.S. 553 (1897); Carter v. Roberts, 177 U.S. 496 (1900); Hiatt v. Brown, 339 U.S. 103 (1950).

1574 346 U.S. 137 (1953).

1575 Cf. Fowler v. Wilkinson, 353 U.S. 583 (1957); United States v. Augenblick, 393 U.S. 348, 350 n. 3, 351 (1969); Parker v. Levy, 417 U.S. 733 (1974); Secretary of the Navy v. Avrech, 418 U.S. 676 (1974).

1576 E.g., Calley v. Callaway, 519 F. 2d 184, 194–203 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 911 (1976).

Civilians and Dependents.—In recent years, the Court rejected the view of the drafters of the Code of Military Justice with regard to the persons Congress may constitutionally reach under its clause 14 powers. Thus, it held that an honorably discharged former soldier, charged with having committed murder during military service in Korea, could not be tried by court-martial but must be charged in federal court, if at all.1577 After first leaning the other way,1578 the Court on rehearing found lacking court-martial jurisdiction, at least in peacetime, to try civilian dependents of service personnel for capital crimes committed outside the United States.1579 Subsequently, the Court extended its ruling to civilian dependents overseas charged with noncapital crimes1580 and to civilian employees of the military charged with either capital or non-capital crimes.1581

1577 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). See also Lee v. Madigan, 358 U.S. 228 (1959).

1578 Kinsella v. Krueger, 351 U.S. 470 (1956); Reid v. Covert, 351 U.S. 487 (1956)

1579 Reid v. Covert, 354 U.S. 1 (1957) (voiding court-martial convictions of two women for murdering their soldier husbands stationed in Japan). Chief Justice Warren and Justices Black, Douglas, and Brennan were of the opinion Congress’ power under clause 14 could not reach civilians. Justices Frankfurter and Harlan concurred, limited to capital cases. Justices Clark and Burton dissented.

1580 Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (voiding court-martial conviction for noncapital crime committed overseas by civilian wife of soldier). The majority could see no reason for distinguishing between capital and noncapital crimes. Justices Harlan and Frankfurter dissented on the ground that in capital cases greater constitutional protection, available in civil courts, was required.

1581 Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960).

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