Congress Has Broad Power to Structure the Military—and It Should Use It

[rangerrebew]

By Zachary Price
Wednesday, September 2, 2020, 10:31 AM
 
The U.S. Marine Corps Honor Guard marches past the U.S. Capitol Building, Jan. 15, 2017. (Source: Defense Department Photo by Air Force Staff Sgt. Sean Martin)

Could Congress require that the secretary of defense, rather than the president alone, approve a nuclear weapons launch? Could it require that a particular Senate-confirmed officer command troops in a certain theater, even if the president would rather have some other officer do the job? Could it bar the president, even in wartime, from removing a top general or admiral without cause, thereby preventing him from selecting someone else to fill the position?

Presidents and commentators have often assumed that such laws, or even more modest measures dictating military structures and functions, would be unconstitutional. In a 2017 letter to Congress, for example, the Trump administration’s Justice Department objected to provisions requiring “manning levels” for certain units, invoking an attorney general opinion from the Buchanan administration as support for doing so. “Presidents have asserted ... since at least 1860,” the letter declared, that they may decide, as commander in chief, which military officers will “perform any particular duty.”

https://www.lawfareblog.com/congress-has-broad-power-structure-military-and-it-should-use-it