President Donald Trump isn’t a cop, and he definitely didn’t/doesn’t serve in the military. Wouldn’t that make him a civilian? Not according to White House spokesman Judd Deere, who explained that Trump will not follow New Jersey’s quarantine order because the “president of the United States is not a civilian.”
But virtually every other authority leads to the conclusion that the president is — actually — a civilian. The controversy is this: the president plans to visit his New Jersey golf club days after returning from Arizona, a state where coronavirus cases are spiking. New Jersey Gov. Phil Murphy (D), along with New York Gov. Andrew Cuomo (D) and Connecticut Gov. Ned Lamont (D), announced on Wednesday that visitors who traveled to COVID-19 hotspots would need to self-quarantine for 14 days.
The White House responded to a question about the president’s post-Arizona visit to N.J. by saying 1) the president is not a civilian and 2) adequate precautions would be taken.
“Anyone who is in close proximity to him, including staff, guests and press are tested for COVID-19 and confirmed to be negative,” Deere said. “With regard to Arizona, the White House followed its COVID mitigation plan to ensure the president did not come into contact with anyone who was symptomatic or had not been tested.”
“Anyone traveling in support of the president this weekend will be closely monitored for symptoms and tested for COVID and therefore pose little to no risk to the local populations,” he added.
The Congressional Research Service has addressed the subject of civilian control of the military at great length. The research notes that the Founders were “deeply skeptical of a standing army” (see the Third Amendment) and set up the U.S. Government in a way which ensured civilian control of the military [emphases ours]:
The designers of the Constitution were deeply skeptical of a standing army, as such a military instrument could also overthrow the government it professed to serve, much like Oliver Cromwell demonstrated in 1653 when he used his army to disband the English Parliament. Consternation regarding British deployment of its military to the American colonies without the consent of local governing officials was among the key grievances listed in the Declaration of Independence. In the context of a new, experimental, and democratic Republic, the Founding Fathers believed that subordination of the military to the authority of civil masters was critically important to prevent the emergence of a new form of tyranny or dictatorship. The principle of civilian control of the military places ultimate authority over U.S. armed services in the hands of civilian leadership, with civilian responsibility and control of the military balanced between the executive and legislative branches of the government. In some ways, the relationship between the military and the civil society it serves is a paradox: the military, by its very nature, has coercive power that could threaten civil society. Yet without a sufficiently strong and capable military, civil society becomes vulnerable to attack, and the former might not be able to defend the latter.
[…]
The Founding Fathers designed a system of civilian control of the military in a manner that conformed with the government’s overall architecture of checks and balances. An elected President was designated the Commander-in- Chief of the nation’s armed forces. This had the dual advantage of ensuring that an elected civilian leader presided over the nation’s army while at the same time enhancing unity of command over the military. The President was also granted the ability to commission military officers, authority to appoint Secretaries to preside over military services, and the responsibility to regularly report to Congress on the state of the union.
Federalist Papers 46 and 59 show that the Founding Fathers were also concerned about unitary executive control of the military. The desire to ensure that the military reflected, and was subordinate to, the will of the people therefore led to considerable congressional powers on matters concerning the armed services. These include the power to lay and collect taxes for the common defense, the sole power to declare war, the ability to raise and support armies, and the authority to establish rules and regulations for the army, navy, and militias when in service of the United States. To further strengthen civilian control of the military, a provision prohibited the appropriation of money for the army for a period longer than two years.
The National Security Act of 1947 is a good example of legislation being enacted by Congress with the express intent of ensuring civilian control of the military [emphases ours]:
In enacting this legislation, it is the intent of Congress to provide a comprehensive program for the future security of the United States; to provide for the establishment of integrated policies and procedures for the departments, agencies, and functions of the Government relating to the national security; to provide a Department of Defense, including the three military Departments of the Army, the Navy (including naval aviation and the United States Marine Corps), and the Air Force under the direction, authority, and control of the Secretary of Defense; to provide that each military department shall be separately organized under its own Secretary and shall function under the direction, authority, and control of the Secretary of Defense; to provide for their unified direction under civilian control of the Secretary of Defense but not to merge these departments or services; to provide for the establishment of unified or specified combatant commands, and a clear and direct line of command to such commands; to eliminate unnecessary duplication in the Department of Defense, and particularly in the field of research and engineering by vesting its overall direction and control in the Secretary of Defense; to provide more effective, efficient, and economical administration in the Department of Defense; to provide for the unified strategic direction of the combatant forces, for their operation under unified command, and for their integration into an efficient team of land, naval, and air forces but not to establish a single Chief of Staff over the armed forces nor an overall armed forces general staff.
There was some controversy years back when President Trump wanted to appoint retired Gen. James Mattis as Secretary of Defense. Times have certainly changed in that regard. But at the time, Mattis needed to get a waiver from Congress before serving in that role due to federal law’s civilian control safeguards. See Section 202 of the Act:
There shall be a Secretary of Defense, who shall be appointed from civilian life by the President, by and with the advice and consent of the Senate: PROVIDED, That a person who has within ten years been on active duty as a commissioned officer in a Regular component of the armed services shall not be eligible for appointment as Secretary of Defense. The Secretary of Defense shall be the principal assistant to the President in all matters relating to the national security.
The 10-year removal from active duty requirement was later reduced to 7 years, but Mattis was still too close to active military service to serve as Secretary of Defense. And it stands to reason that Mattis’s former boss, the Commander-in-Chief of the armed forces, must also be a civilian. There is a historically interesting, though small, precedent to support this.
A decades-old decision in a New York surrogate’s court on the matter of Franklin Delano Roosevelt’s estate laid out the constitutional reasoning rather well (emphasis ours):
“The President receives his compensation for his services, rendered as Chief Executive of the Nation, not for the individual parts of his duties. No part of his compensation is paid from sums appropriated for the military or naval forces; and it is equally clear under the Constitution that the President’s duties as Commander in Chief represent only a part of duties ex officio as Chief Executive [Article II, sections 2 and 3 of the Constitution] and that the latter’s office is a civil office. [Article II, section 1 of the Constitution . . . .] The President does not enlist in, and he is not inducted or drafted into, the armed forces. Nor, is he subject to court-martial or other military discipline. On the contrary, Article II, section 4 of the Constitution provides that ‘The President, [Vice President] and All Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery or other high Crimes and Misdemeanors.’ . . . The last two War Presidents, President Wilson and President Roosevelt, both clearly recognized the civilian nature of the President’s position as Commander in Chief. President Roosevelt, in his Navy Day Campaign speech at Shibe Park, Philadelphia, on October 27, 1944, pronounced this principle as follows:–‘It was due to no accident and no oversight that the framers of our Constitution put the command of our armed forces under civilian authority. It is the duty of the Commander in Chief to appoint the Secretaries of War and Navy and the Chiefs of Staff.’ It is also to be noted that the Secretary of War, who is the regularly constituted organ of the President for the administration of the military establishment of the Nation, has been held by the Supreme Court of the United States to be merely a civilian officer, not in military service. (United States v. Burns, 79 U.S. (12 Wall.) 246 (1871)). On the general principle of civilian supremacy over the military, by virtue of the Constitution, it has recently been said: ‘The supremacy of the civil over the military is one of our great heritages.’ Duncan v. Kahanamoku, 327 U.S. 304, 325 (1945)
In the Roosevelt case, the Dutchess County, N.Y. Surrogate’s Court ultimately determined that the former Commander-in-Chief’s estate was not entitled to tax benefits afforded to those who die as members of the military. That’s because the court held that Roosevelt was a civilian. You can read the July 26, 1950 New York Times article for yourself below:
FDR is a civilian by Law&Crime on Scribd
Given all of the above, Law&Crime asked constitutional law expert and Harvard Law Professor Laurence Tribe if it was the case that the Constitution was set up in such a way as to ensure that the Commander-in-Chief of the armed forces would be a civilian.
“To say that the president isn’t a ‘civilian’ is absolute bunk, to use a more polite word than the ones that come more immediately to mind. Of course the president is a civilian, fully subject to the civil and criminal laws of this nation regardless of whatever temporary immunity from prosecution he might enjoy while holding office,” Tribe said. “And you’re certainly right that the whole structure of the Constitution points to the central conclusion that the President of the United States, even and perhaps most especially in his role as Commander in Chief of the Armed Forces, would have to remain a civilian and not himself or herself be a member of the military or of any militia.”
“Indeed, the subordination of the military to civilian rule – as well as the subordination of all Officers of the United States, of whatever branch and however high, to the Constitution and Laws of the United States as the ‘supreme Law of the Land,’ as Article VI puts it – is probably the deepest and most fundamental principle of American constitutionalism and of our entire system’s fidelity to the Rule of Law,” he continued. “Without that principle, we cease to be a republic. Without it, we cease to be a government of the people, by the people, and for the people.”
In closing, Tribe said that the “spokesman who said POTUS wouldn’t abide by NJ’s quarantine order because he’s ‘not a civilian,’ if you’re quoting the White House spokesman accurately, is either abjectly ignorant of our system of government or revealing the frightening truth that President Trump indeed regards himself as above the law and accountable to nobody but himself.”
[Image via NICHOLAS KAMM/AFP/Getty Images]
Have a tip we should know? [email protected]
Follow Law&Crime:
