Updated June 11June 10, 2020
Congress, Civilian Control of the Military, and Nonpartisanship
The possible use of federal armed forces as part of the U.S.
executive branch’s response to incidents of violence during
racial justice protests has raised questions about how the
military is controlled by domestic political institutions and
the U.S. military’s relationship with American society.
Article I of the U.S. Constitution grants specific powers to
Congress, making the legislative branch a key actor in
governing, overseeing, and funding the U.S. military.
What Is Civilian Control of the Military?
How to advance the nation’s security while at the same time
ensuring that instruments of force do not undermine the
practice of American democracy has been a central question
since the founding of the United States, if not before.
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.
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.
In the post-World War II era, Congress has exercised this
constitutional authority in a number of ways, including (but
not limited to) the following:
Annual strategy and posture hearings overseeing the
Department of Defense’s (DOD’s) plans and programs.
Annually authorizing the scope and priorities for the
military’s budget and appropriating monies accordingly.
Establishing new service branches of the U.S. military,
such as the U.S. Space Force in 2019 (P.L. 116-92).
Establishing new components of the U.S. military, such
as U.S. Special Operations Command (P.L. 99-661).
Setting key DOD strategy production requirements, such
as the National Defense Strategy (P.L. 114-328).
Consenting upon the nominations of senior leaders to
DOD civilian and military positions.
Cancellation of weapons systems, as with the MBT-70
Supertank in 1971.
Establishing authorities for DOD’s noncombat
cooperative activities with other nations’ military and
security establishments (Title 22 U.S. Code; Title 10
U.S. Code, Chapter 16).
Civilian Control of the Military: Congressional and
Executive Branch Responsibilities
Organizing the military chain of command, for example
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-inChief 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.
Requiring reporting on key issues and areas of interest
through the 1986 Goldwater-Nichols Act (P.L. 99-433).
to Congress, such as the semi-annual Report on Stability
and Progress in Afghanistan (P.L. 110-181).
Setting criteria for military promotions, for example by
requiring military staff in a “joint” position before
becoming eligible for a General or Flag Officer position
in the 1986 Goldwater-Nichols Act (P.L. 99-433).
Setting personnel policies, including repealing DOD’s
“Don’t Ask, Don’t Tell” policy toward gay service
members in the military (P.L. 111-321).
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Congress, Civilian Control of the Military, and Nonpartisanship
Granting specific authorities for the legal conduct of
military operations, such as the 2001 Authorization for
the Use of Military Force (P.L. 107-40).
Civil-Military Relations
As noted above, civilian control of the military refers to the
principle that the military is ultimately subordinate to
civilian authority. This formal governance structure for the
military has always been necessary, but not sufficient, to
ensuring civilian control of the military. Underpinning these
structures are a set of norms (i.e., a set of expected
behaviors) of mutual respect for the roles, responsibilities,
and interactions of both civilian and military leaders, which
are often referred to as “civil-military relations.”
President George Washington played a vital role in
establishing the norms and culture that formed the
foundation for American relationships between the military
and the civilian leadership it served. For example, in putting
down the 1794 Whiskey Rebellion in western Pennsylvania,
President Washington ensured that his subordinates upheld
and respected civilian rule of law while doing so. This
behavior, in conjunction with Washington’s earlier decision
as a military officer to eschew his associates’ urging to
install himself as a military dictator of the weak American
confederacy, created the foundation for the norm in
America that control of the military would be in the hands
of democratically elected civilian leaders.
Over time, a key norm that emerged to help bolster civilian
control of the military is that of a nonpartisan U.S. military.
Although scholars debate the norm’s particulars and its
implementation, the widely held view is that a military that
is nonpartisan is able to serve the sovereign American
people regardless of party and to defend all Americans
regardless of their affiliation. This, in turn, protects and
enables the process of American democracy to occur
without fear of military intervention to shape or mandate a
particular political outcome.
Its nonpartisan culture is arguably one reason that the U.S.
military is one of the most trusted institutions in the eyes of
the American public. A 2019 Gallup survey (see below)
found that 73% of the American public has either a “great
deal” or “quite a lot” of trust in the U.S. military as an
institution (it should be noted that recent events may affect
future surveys). This trust is also arguably one reason the
U.S. military receives the lion’s share of U.S. national
security resources (for an illustrative CRS estimate on how
national security resources are allocated between DOD and
non-DOD U.S. government agencies, see Figure 1).
In recent years, a number of scholars have expressed
concern that this norm of nonpartisanship is eroding, citing
increased partisan identification among military officers,
the behavior of troops on social media, and the increased
involvement of retirement generals in presidential campaign
as evidence. Some observers also express concern that
military services are taking on inherently political tasks
within DOD. According to this view, civilian leaders are
losing their ability to control the processes that manage
DOD planning, budgeting, and deployments, all of which
are ultimately political calculations. According to this view,
too much military influence in these processes can
compromise its reputation as a nonpartisan actor.
For example, the June 1, 2020, photographing of Chairman
of the Joint Chiefs of Staff Milley in Lafayette Square
immediately after protestors had been forcibly removed
from the area was seen by some (including, on June 11,
Milley himself) as the use of the military to
endorse a
partisan domestic political act. Others contend
that that
removing protestors at that time was necessary to
promote promote
public safety.
Figure 1. Discretionary Budget Authority by Security
and Nonsecurity Categories, FY2020
(in billions of dollars)
Source: CRS analysis of Office of Management and Budget, Public
Budget Database, Budget Authority XLSX; and OMB Final
Sequestration Report to the President and Congress for Fiscal Year
2012, p. 3. Analysis by Brendan W. McGarry, Analyst in U.S. Defense
Budget, and Christopher T. Mann, Analyst in Defense Policy and
Trade.
Notes: The U.S. government does not categorize spending by
national security. This figure is a CRS estimate based on the
“security” category in the Budget Control Act of 2011 (P.L. 112-25).
In the wake of June 1, several retired senior military
leaders, including former Secretary of Defense James N.
Mattis, voiced their concern about the use of National
Guard personnel in a manner that infringes on American’s
constitutional right to free assembly.
Issues for Congress
Given recent trends and events, Congress could explore
whether recent events have eroded the norm of a
nonpartisan U.S. military;
whether actions by members of Congress or the
executive branch that inject military leaders into partisan
disagreements affect military advice, effectiveness, or
unit cohesion; and
to what extent legislative tools might be used to reassert
congressional civil control, if necessary.
Further Reading
Risa Brooks and Jim Golby, “Congress Controls the
Military Too,” The Hill, June 8, 2020.
Loren DeJonge Schulman, Alice Hunt Friend, and Mara
Karlin, Two Cheers for Esper’s Plan to Reassert Civilian
Control of the Pentagon, CNAS, September 9, 2019.
The Gallup Organization, Confidence in American
Institutions Polling, July 2019.
Kathleen J. McInnis, Specialist in International Security
IF11566
https://crsreports.congress.gov
IF11566
Congress, Civilian Control of the Military, and Nonpartisanship
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