APPENDIX 1

COMMENTS ON H.R. 3622

The following comments are offered on particular provisions of H.R. 3622 in the event it is reexamined in conference. Some of these are technical, some substantive.

Section 2, Role of Chairman: In the language that would amend subsection (c) of 10 U.S.C. § 141, strike the word "overall." It is inserted to modify the existing reference to the President's and Secretary's authority and direction. What "overall" means is unclear. As a change to the current language it is either redundant or surplusage or, worse, could be read as an attempt to qualify or lessen somehow the President's and the Secretary's authority.

Section 4, Chain of Command: This proposed new section 2 to 10 U.S.C. § 142(c) serves no purpose and could be misconstrued. All it says is that the President or Secretary "may" put the Chairman in the chain of command. The President under Article II of the Constitution has that power now; he can prescribe the chain of command as he pleases. The Congress need not, and probably cannot, give additional authority in this respect to him.

To the extent that the proposed language seems to suggest that the President should revise the chain of command, to run it through the Chairman -- thereby making the Chairman a single uniformed commander of all the U.S. armed forces -- it is a bad and unnecessary idea. It also wouuld violate President Eisenhower's repeated emphasis that the JCS (or Chairman) belong in a purely staff role, as staff to the President and Secretary of Defense not in a command role.

Section 5, Supervision of Combatant Commands: This section could be read as making the Chairman the commander of the CINCS. "Supervises" is a word with no clear meaning, but DoD General Counsel William H. Taft IV said in commenting on H.R. 3718 (which contained a similar provision) that it means command. He probably was correct; in any event, it would likely be so interpreted. That is bad as a matter of policy for the reasons stated earlier: (1) this country has never had and should not have a single military officer commanding all the combatant forces; (2) the Chairman belongs in a purely staff role; (3) the Congress cannot constitutionally prescribe the chain of command. Also, the proposed provision is on its face inconsistent with the language of existing 10 U.S.C. S 142(c), which the bill would retain, which purports to prohibit the Chairman from "exercis[ing] command over the Joint Chiefs of Staff or any of the armed forces."

Section 6, Term of Chairman: In this section there is a possible drafting problem. The Chairman today serves a term (of two years), but only, as the statute recognizes, "at the pleasure of the President," so he can in theory be fired at any time. (That almost surely is constitutionally so whether or not the

statute contains the acknowledgment, but it is better to say So.) The bill's language retains that recognition by leaving the "at the pleasure of the President" language in 10 U.S.C. S 142(a). But the bill also would add a new provision, as section 142(a)(2), which appears to contradict that, by saying flatly and without qualification that the Chairman serves a term of four years. That probably was not intended. For clarity, the new subsection (2) should insert the words "at the pleasure of the President," or else should be reworded to read "except as provided in paragraphs (1) and (3)."

Apart from that technical problem, as a matter of policy it is a bad idea to increase the present two-year term of the Chairman to four years. (It was also a bad idea to increase the terms of the other chiefs to four years when that was done a few years ago.) These jobs are, or ought to be, important, and Presidents should be able easily to change incumbents without having to go through the public brouhaha of firing them. Reappointments can always be granted. It is not a question of politicizing the offices; rather, it is a recognition that these ought to be key advisory jobs, and Presidents and Secretaries should be getting advice from the people they choose and trust.

Sections 7, Deputy Chairman, and 8, Joint Staff: It is a bit confusing to say in one place that the Joint Staff is "under the Chairman" (proposed amendment to $ 142(a)), but also in another that the Deputy Chairman "is the director of the Joint Staff" (new S 142(c)). Some clarification in the wording of these two sections would be helpful. Also, something ought to be done to remedy the fact that to say the Joint Staff is "under the Chairman" seems inconsistent with 10 U.S.C. § 142(c), preserved by the bill, which prohibits him from commanding the Joint Staff.

Section 9, Consideration of Joint Service: This proposed statutory requirement for endorsement by the Chairman is futile paperwork, and not enough to solve the problem of senior officers without meaningful joint experience. Why not instead give the Chairman a few promotions to hand out through a promotion board of his own? Why not let him pick some of his staff? That would have a real impact.

Section 10, Participation in NSC meetings: This is a vast improvement over a previous bill, which would have made the Chairman a statutory member of the National Security Council. Nevertheless, it is inappropriate to try to prescribe by statute who should attend NSC meetings. That is for the President to decide, and in fact he will do what he pleases (he can always, e.g., set up NSC subcommittees). The NSC's function is not to make decisions. It is to advise the President, and Presidents take their advice where they choose. Almost surely the Chairman will be involved; if a President doesn't want him there, circumventions will easily be devised. So why try to legislate, to little avail, about a non-problem?

In summary, H.R. 3622 is a good start towards dealing with some of the enormous shortcomings in the present U.S. military organization, but it still unfortunately stops short of addressing meaningfully the central problem, which is the need to give real power to the joint elements of the Department of Defense rather than the Service bureaucracies.

APPENDIX 2

THE CONSTITUTION AND THE CHAIN OF COMMAND

A few recent proposals for statutory reorganization of the Department of Defense have included provisions that would seek to prescribe the military chain of command, i.e., the series of persons who receive and convey orders issued by the Commander in Chief, the President, or under authority granted by him.1/ This memorandum examines the constitutional status of and 1mitations upon such proposed legislation.

I. Pertinent Constitutional Provisions.

The constitutional authority over military affairs in general has always been one shared between the President and the Congress.

The Congress' powers are significant. Thus in Article I, Section 8, the Congress is granted several specific powers that affect military forces:

Regulation of the land and naval Forces."2/

Article II, however, assigns other military powers to
In Section 2 it provides:

the President.

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."

Thus, for example, section 2 of H.R. 3718, 98th Cong., 1st
Sess., provided:

"(2) The national military chain of command runs from the President to the Secretary [of Defense] and through the Chairman of the Joint Chiefs of Staff to the combatant commands. Orders to combatant commands shall be issued by the President or the Secretary through the Chairman of the Joint Chiefs of Staff.

"(3) Subject to the authority, direction, and control of the Secretary, the Chairman supervises the commanders of the combatant commands and acts as their spokesman on operational requirements."

2/ Article I $ 8 also empowers the Congress

"To provide for calling forth the Militia;" and

"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States

He is also empowered, "by and with the Advice and Consent of the Senate," to appoint "all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law," and also to appoint without Senate confirmation for positions which the Congress establishes without that requirement. Article II also provides that the President "shall Commission all the Officers of the United States."

Disputes as to the respective roles of the Congress and the President over military affairs have generally been resolved through compromise and the political process. This is an area which does not lend itself to the structuring of law suits, and hence quite properly -- there are very few court decisions interpreting the constitutional language in contexts even close to those considered here. The Supreme Court has in fact characterized as "political" decisions, not for judicial resolution, those that occur when the "distinction results from the organization of the government into the three great departments and from the assignment and limitation of the powers of each by the Constitution." Georgia v. Stanton, 6 Wall. 50, 71 (1867).

Pertinent court decisions being scanty, therefore, the best sources for evaluating the meaning of the constitutional language as it pertains to the military chain of command are the contemporary writings on the Constitution, and the actual course of United States history since its adoption.

It is apparent that the Framers of the Constitution sharply distinguished the President's powers as a commander from the other aspects of the military establishment.3/ The Federalist papers, explanations of the new Constitution designed to gain its ratification, made clear that the power granted to the President in Article II is a "command" power. And in The Federalist No. 74, Alexander Hamilton, after referring to the military powers of governors under state constitutions, emphasized the exclusive nature of the Commander in Chief's command authority:

"Even those [states] of them, which have in other
respects coupled the Chief Magistrate with a
Council, have for the most part concentred the
military authority on him alone. Of all the cares
or concerns of government, the direction of war
most peculiarly demands those qualities which
distinguish the exercise of power by a single

3/ Madison's notes, the most authoritative background of the Constitutional Convention, say little on the subject. The Pinckney Plan had proposed that the President "shall, by Virtue of his Office, be Commander in chief of the Land forces of U.S. and Admiral of their Navy." 2 M. Farrand, The Records of the Federal Convention of 1787 158 (1955 ed.); 3 id. at 111; 2 id. at 157. The New Jersey Plan had proposed that the Congress elect a Federal Executive of several persons, none of whom would be allowed to command troops. 1 id. at 244, 247.

hand." The Federalist, No. 74 (Cooke ed.) at
500.4/

The distinction between command, a power exclusively the President's and other powers affecting the military, with which the Congress was involved was highlighted in at least one Supreme Court decision. Ex parte Milligan, 4 Wall. 2 (1866), observed that

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"Congress has the power not only to raise and
support and govern armies but to declare war. It
has, therefore, the power to provide by law for
carrying on war. This power necessarily extends to
all legislation essential to the prosecution of war
with vigor and success, except such as interferes
with the command of the forces and the conduct of
campaigns. That power and duty belong to the
President as commander-in-chief." 4 Wall. at 139

(opinion of Chase, C.J., and Wayne, Swayne, and
Miller, JJ.)(emphasis supplied).

"As commander-in-chief the President is authorized to give orders to his subordinates ." Swaim v. United States, 165 U.S.

553, 556 (1897), quoting Runkle's Case, 19 Ct. Cl. 396, 409 (1884), rev'd on other grounds sub nom. Runkle v. United States, 122 U.S. 543 (1887). The Congress provides (or declines to provide) the forces; the President commands them. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 644 (1952)(Jackson, J., concurring).

The Congress over the years has in many respects prescribed elements of the military establishment and set up particular offices, both military and civilian. The principal current provisions are in the National Security Act of 1947, Act of July 26, 1947, ch. 343, 61 Stat. 495, as amended principally in 1949 and 1958, and as currently codified in Title 10 of the United States Code. Title 10 establishes the office of Secretary of Defense and states that "Subject to the direction of the President and to this title" he has "authority, direction, and control over the Department of Defense." 10 U.S.C. S 133(b). Legislation also establishes within the Department of Defense the Departments of Army, Navy and Air Force, 10 U.S.C. SS 3012, 5011, and 8012, the Joint Chiefs of Staff, 10 U.S.C. § 141, and as amended in 1958 authorizes and directs the President to establish combatant command organizations to perform actual military missions, 10 U.S.c. $ 124. Thus, in substantial ways, the Congress by legislation has undertaken to shape the organization of the national defense establishment, and no serious doubt ever has been expressed about its constitutional power to do so.

4/

In The Federalist No. 69, Hamilton explained:

"In this respect [as Commander in Chief] his authority would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies, all of which, by the Constitution under consideration, would appertain to the legislative." (Emphasis in original; footnote omitted.)

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