I just saw (somewhere–I closed the window already) a crazy suggestion by a crazy person that one of the Generals in the joint chiefs of staff could legally relieve Bush of command of the military.
I’m just interested in the legal facts, though I recognize there is debate close nearby. I’m just curious, is there any legal truth to this claim? What does it take to relieve someone of command? Is the president subject to military justice? Etc.
-FrL-
Your appraisal of the person’s sanity is spot on. The President of the United States, unless and until removed from office, is the Commander-in-Chief of the Armed Forces of the United States.
The code of Federal law which applies to the US military is the Uniform Code of Military Justice, which lists persons subject to the UCMJ. You will note the President of the United States is not one such person.
United States Navy Regulations (Warning! PDF!) of 1990 describe the procedure for relieving a commanding officer of his command. Sadly, I can’t access the site’s search function now so I can’t give you the article number.
Can’t be done.
The President is the commander and chief of the military, as per Article II Section 2 of the Constitution.
The only way to remove command authority from the President is to make him not the President. That can be done in a few ways:
[ol]
[li]Make him lose the next election,[/li][li]Have him impeached,[/li][li]Convince him to resign,[/li][li]Have the cabinet and the Vice President declare that the President is unable to discharge the duties of his office per Section 4 of the 25th Amendment,[/li][li]Arrange for him to have an “unfortunate accident.”[/li][/ol]
The last method has the advantage of expediency, but is of dubious legality.
Thanks for that link. Looks like you’re right–POTUS doesn’t fit any of the descriptions found in that list, basically because (as I understand it) the current president is a civilian, not a member of the armed forces.
But… can someone be in the military and be president at the same time? If so, would this change things any w.r.t. the question at hand in the OP?
-FrL-
I’m not sure of the validity of that argument. If I understand correctly, an officer can, under some circumstances, be relieved of command by people who are under his command. If that’s the case, then we can’t infer from the POTUS’s status as commander-in-chief that he can’t be removed from command by means other than loss of the office of President.
-FrL-
In some cases, yes. But that ability comes from statute and military regulations, which are written by Congress and the Defense Department, respectively. The President is not a military officer, and as such those statutes and regulations do not apply to him.
We can, because that’s what the office of President is. Being commander-in-chief is part of the definition of the office. The only way that can be changed is through Constitutional amendment.
I can’t pin down the exact reasons, but it is well known that Eisenhower resigned his commission as General of the Army when he ran for office and that his commission was reinstated following the expiration of his term of service (he was the first term-limited President). There were apparently some significant legal issues involved. So no, I don’t believe that one can be the President and in the military at the same time. You can be in Congress and the military at the same time, however. There are a number of reservists in Congress right now.
Incidentally, just for something to think about, imagine if an active duty E-5 Sergeant was elected to serve as President and he gave an order to an O-10 General. The conflict between civilian control of the military and the chain of command would be untenable. It is a paradox to be both someone’s superior and subordinate at the same time.
During Nixon’s final days, Secretary of Defense James Schlesinger prepared for a similar eventuality, but it wasn’t needed. He told the JCS to inform him if Nixon issued any military orders. It seems there was concern that Nixon might be on the verge of doing something rash when it became clear that his number was up.
I don’t see why that’s a problem. The President would certainly have the authority as CIC to effectively remove himself as a soldier from the chain of command. If by no other method, certianly he could issue a general order to all military personnel that they are prohibited from giving orders to such and such soldier, that soldier being the POTUS?
I would be interested in reading the reasons why DDE resigned his commission prior to taking office. I can’t imagine any legal reason why he would, as the requirements for holding the office of President are laid out in the Constitution and are not subject to statutory amendment. As long as he meets the age, citizenship and residency requirements his profession would have been legally irrelevant. I would hazard a guess that his resigning was more to do with the societal perception involved in having an active soldier in the office.
I’m sure you know more about this than I, but I thought the deal was that one could not be active in the military and a politician at the same time?
I claim no special knowledge about this. I personally do not know anybody who has done this, so this is my thinking only. Take it for what it’s worth. Anyway, to adress your question:
A Congressman, while being a party to a declaration of war and its related funding, is not a part of the chain of command. The President is. Therefore, Congressmen create no conflict, but the President potentially would.
Perhaps you’re speaking of the speech limitations placed on members of the military? To me that presents no obvious conflict if you’re a) not on a military status, b) do not represent yourself as a spokesman for the military (which is why public speaking in uniform at rallies and such is verboten, because it tends to lend an air of false authority), and c) do not do anything to discredit the chain of command.
That last is the hardest part. How do you run for higher office without taking shots at the policies of the incumbent? In politics, nice guys really do finish last, but one good shot at the President could cost you. In the Guard you are mostly subject to the state version of the UCMJ (here called the Pennsylvania Code of Military Justice) which is comparatively painless, but a person in the Reserves is subject to the UCMJ at all times, and that has teeth.
This relates to me indirectly. Because of my username I have had to show more discretion that I would have otherwise for fear that I bring discredit publicly to my service. In other words, I have had to show much more discretion than I perhaps would have with any other random name. The Internet is just as real as anywhere else, and it could conceivably come back to bite me.
It’s worth noting that the President cannot launch a nuclear strike on his own. Use of nuclear weapons requires authorization from the National Command Authority which consists of the President and the Secretary of Defense. The problem of course is that if a SecDef refused to authorize a launch the President could fire him on the spot and the next highest-ranking official in the DoD would become the acting Secretary. Lather, rinse, repeat as needed (ala the Saturday Night Massacre). One hopes that if a POTUS did suddenly go insane and start issuing genocidal orders the military would just ignore him until the 25th could be invoked. :rolleyes:
That still creates a conflict in the superior/subordinate relationship just to give the order to ignore the relationship. Also, AWOL/UA is a crime (as I’m sure you know given the discussions about President Bush in the past) and one cannot faithfully execute his duties as the President and simultaneously faithfully execute his duties as a soldier, because that requires him to obey the orders of officers appointed over him. Further, while he is on active duty his boss is the Secretary of Defense, who is subordinate to him and is, in fact, appointed by him.
No, it can’t work. There are too many conflicts and no reasonable workarounds without making a tangled mess of things. Things are hard enough to figure out without intentionally creating a trainwreck.
The workarounds may be difficult (although I don’t think it’s all that difficult for the POTUS to issue the order I mentioned plus, say, an order assigning him to such duty as he, the President, orders for the duration of his presidency) but the point still remains that it is not actually illegal for a sitting President to also be an active duty member of the military.
Nitpick: Being impeached does not remove the President from command authority or from office. The office only becomes vacant after a President is impeached by the House and found guilty by the Senate.
Eisenhower shared the philosophical view among military officers of that period that soldiers should not participate in politics, or hold office while serving. The majority of the US Army officers of that time did not feel it appropriate to hold federal office of any sort, and it was widely held that the importance of “Civilian Command Authority” while not specifically required by the law, was sufficiently important that the Commander in Chief must be a civilian. The decision to resign his commission was very widely approved of by the military. It is not specifically required by the constitution, though.
I don’t believe that Grant resigned his Commission.
Tris
This site claims he did. Indeed I’m fairly certain that this has been the case of all generals who were elected to president. I’m not sure if this is mere tradition or for an actual legal reason though.
In anycase, it’s certainly a good idea, as having the military as a major player in politics has a history of being a bad idea.
Let’s look at some relevant points in the Constitution:
So the President can only be paid to be President, not a commissioned officer, or a non-commissioned soldier.
Meanwhile, Congress has some very specific powers as well:
It seems to me that Congress gets to set the rules. And even if the President decided to go riding up San Juan Hill or something, he couldn’t draw a paycheck as both a soldier and the President.
As mentioned: Officers of the US Armed Forces cannot lawfully relieve the President specifically of CinC authority over the wisdom or folly of his policies or their judgement of his fitness. They can refuse *unlawful * orders, and if they catch him in the act of some sort of heinous criminal treason it would be unlawful for him to order them to stand aside and let him… but that’s about it.
As per some scenarios mentioned above, they may discreetly advise the Cabinet members that in their judgement something’s going very wrong with the President, so that *the Cabinet * may if need be trigger the 25th Amendment provision for relieving the President, but that is a political action, not a “relieving an unfit commander” procedure.
. . .
BTW, if under the current law you cannot hold two Federal offices at the same time, then a regular officer, to serve as Prez, would have to have his military billet converted to one having and performing no duties, attached to no unit, receiving no remuneration, for the duration of his term. There are already ways to do this w/o “ordering yourself removed from the Chain of Command”: resign, retire, or get placed in inactive status in individual reserve.
My guess: the other officers resigned their commissions before taking political office because George Washington did so (no?), and to do otherwise - while we may for now set aside the question of the legal necessity - would cause no end of historical stink.