Congress, Civilian Control of the Military, and Nonpartisanship

Congress, Civilian Control of the Military, and Nonpartisanship

Updated June 11, 2020
Congress, Civilian Control of the Military, and Nonpartisanship
The possible use of federal armed forces as part of the U.S.
Federalist Papers 46 and 59 show that the Founding Fathers
executive branch’s response to incidents of violence during
were also concerned about unitary executive control of the
racial justice protests has raised questions about how the
military. The desire to ensure that the military reflected, and
military is controlled by domestic political institutions and
was subordinate to, the will of the people therefore led to
the U.S. military’s relationship with American society.
considerable congressional powers on matters concerning
Article I of the U.S. Constitution grants specific powers to
the armed services. These include the power to lay and
Congress, making the legislative branch a key actor in
collect taxes for the common defense, the sole power to
governing, overseeing, and funding the U.S. military.
declare war, the ability to raise and support armies, and the
What Is Civilian Control of the Military?
authority to establish rules and regulations for the army,
How to advance the nation’s security while at the same time
navy, and militias when in service of the United States. To
further strengthen civilian control of the military, a
ensuring that instruments of force do not undermine the
provision prohibited the appropriation of money for the
practice of American democracy has been a central question
army for a period longer than two years.
since the founding of the United States, if not before.
In the post-World War II era, Congress has exercised this
The designers of the Constitution were deeply skeptical of a
constitutional authority in a number of ways, including (but
standing army, as such a military instrument could also
not limited to) the following:
overthrow the government it professed to serve, much like
Oliver Cromwell demonstrated in 1653 when he used his
 Annual strategy and posture hearings overseeing the
army to disband the English Parliament. Consternation
Department of Defense’s (DOD’s) plans and programs.
regarding British deployment of its military to the
 Annually authorizing the scope and priorities for the
American colonies without the consent of local governing
military’s budget and appropriating monies accordingly.
officials was among the key grievances listed in the
Declaration of Independence. In the context of a new,
 Establishing new service branches of the U.S. military,
experimental, and democratic Republic, the Founding
such as the U.S. Space Force in 2019 (P.L. 116-92).
Fathers believed that subordination of the military to the
 Establishing new components of the U.S. military, such
authority of civil masters was critically important to prevent
as U.S. Special Operations Command (P.L. 99-661).
the emergence of a new form of tyranny or dictatorship.
 Setting key DOD strategy production requirements, such
The principle of civilian control of the military places
as the National Defense Strategy (P.L. 114-328).
ultimate authority over U.S. armed services in the hands of
civilian leadership, with civilian responsibility and control
 Consenting upon the nominations of senior leaders to
of the military balanced between the executive and
DOD civilian and military positions.
legislative branches of the government. In some ways, the
 Cancellation of weapons systems, as with the MBT-70
relationship between the military and the civil society it
Supertank in 1971.
serves is a paradox: the military, by its very nature, has
coercive power that could threaten civil society. Yet
 Establishing authorities for DOD’s noncombat
without a sufficiently strong and capable military, civil
cooperative activities with other nations’ military and
society becomes vulnerable to attack, and the former might
security establishments (Title 22 U.S. Code; Title 10
not be able to defend the latter.
U.S. Code, Chapter 16).
Civilian Control of the Military: Congressional and
 Organizing the military chain of command, for example
Executive Branch Responsibilities
through the 1986 Goldwater-Nichols Act (P.L. 99-433).
The Founding Fathers designed a system of civilian control
 Requiring reporting on key issues and areas of interest
of the military in a manner that conformed with the
to Congress, such as the semi-annual Report on Stability
government’s overall architecture of checks and balances.
and Progress in Afghanistan (P.L. 110-181).
An elected President was designated the Commander-in-

Chief of the nation’s armed forces. This had the dual
Setting criteria for military promotions, for example by
requiring military staff in a “joint” position before
advantage of ensuring that an elected civilian leader
presided over the nation’s army while at the same time
becoming eligible for a General or Flag Officer position
in the 1986 Goldwater-Nichols Act (P.L. 99-433).
enhancing unity of command over the military. The
President was also granted the ability to commission
 Setting personnel policies, including repealing DOD’s
military officers, authority to appoint Secretaries to preside
“Don’t Ask, Don’t Tell” policy toward gay service
over military services, and the responsibility to regularly
members in the military (P.L. 111-321).
report to Congress on the state of the union.
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Congress, Civilian Control of the Military, and Nonpartisanship
 Granting specific authorities for the legal conduct of
For example, the June 1, 2020, photographing of Chairman
military operations, such as the 2001 Authorization for
of the Joint Chiefs of Staff Milley in Lafayette Square
the Use of Military Force (P.L. 107-40).
immediately after protestors had been forcibly removed
Civil-Military Relations
from the area was seen by some (including, on June 11,
Milley himself) as the use of the military to endorse a
As noted above, civilian control of the military refers to the
partisan domestic political act. Others contend that
principle that the military is ultimately subordinate to
removing protestors at that time was necessary to promote
civilian authority. This formal governance structure for the
public safety.
military has always been necessary, but not sufficient, to
ensuring civilian control of the military. Underpinning these
Figure 1. Discretionary Budget Authority by Security
structures are a set of norms (i.e., a set of expected
and Nonsecurity Categories, FY2020
behaviors) of mutual respect for the roles, responsibilities,
(in bil ions of dol ars)
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
Source: CRS analysis of Office of Management and Budget, Public
America that control of the military would be in the hands
Budget Database, Budget Authority XLSX; and OMB Final
of democratically elected civilian leaders.
Sequestration Report to the President and Congress for Fiscal Year
2012, p. 3. Analysis by Brendan W. McGarry, Analyst in U.S. Defense
Over time, a key norm that emerged to help bolster civilian
Budget, and Christopher T. Mann, Analyst in Defense Policy and
control of the military is that of a nonpartisan U.S. military.
Trade.
Although scholars debate the norm’s particulars and its
Notes: The U.S. government does not categorize spending by
implementation, the widely held view is that a military that
national security. This figure is a CRS estimate based on the
is nonpartisan is able to serve the sovereign American
“security” category in the Budget Control Act of 2011 (P.L. 112-25).
people regardless of party and to defend all Americans
regardless of their affiliation. This, in turn, protects and
In the wake of June 1, several retired senior military
enables the process of American democracy to occur
leaders, including former Secretary of Defense James N.
without fear of military intervention to shape or mandate a
Mattis, voiced their concern about the use of National
particular political outcome.
Guard personnel in a manner that infringes on American’s
constitutional right to free assembly.
Its nonpartisan culture is arguably one reason that the U.S.
military is one of the most trusted institutions in the eyes of
Issues for Congress
the American public. A 2019 Gallup survey (see below)
Given recent trends and events, Congress could explore
found that 73% of the American public has either a “great

deal” or “quite
whether recent events have eroded the norm of a
a lot” of trust in the U.S. military as an
nonpartisan U.S. military;
institution (it should be noted that recent events may affect
future surveys). This trust is also arguably one reason the
 whether actions by members of Congress or the
U.S. military receives the lion’s share of U.S. national
executive branch that inject military leaders into partisan
security resources (for an illustrative CRS estimate on how
disagreements affect military advice, effectiveness, or
national security resources are allocated between DOD and
unit cohesion; and
non-DOD U.S. government agencies, see Figure 1).
 to what extent legislative tools might be used to reassert
In recent years, a number of scholars have expressed
congressional civil control, if necessary.
concern that this norm of nonpartisanship is eroding, citing
increased partisan identification among military officers,
Further Reading
the behavior of troops on social media, and the increased
Risa Brooks and Jim Golby, “Congress Controls the
involvement of retirement generals in presidential campaign
Military Too,” The Hil , June 8, 2020.
as evidence. Some observers also express concern that
Loren DeJonge Schulman, Alice Hunt Friend, and Mara
military services are taking on inherently political tasks
Karlin, Two Cheers for Esper’s Plan to Reassert Civilian
within DOD. According to this view, civilian leaders are
Control of the Pentagon, CNAS, September 9, 2019.
losing their ability to control the processes that manage
The Gallup Organization, Confidence in American
DOD planning, budgeting, and deployments, all of which
Institutions Polling, July 2019.
are ultimately political calculations. According to this view,
too much military influence in these processes can
Kathleen J. McInnis, Specialist in International Security
compromise its reputation as a nonpartisan actor.
IF11566
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Congress, Civilian Control of the Military, and Nonpartisanship

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