Military Regulations

Recounting how the Supreme Court rejected a historical practice analysis of the Government and Regulation of the Military Clause in favor of a Framer’s intent analysis in Solorio v. United States.

Arguing that the Framers’ allowance of a standing army resulted from a compromise between radical Whig idealism and moderate Whig pragmatism but that the Framers checked the threat of military power by dividing power over the standing army between the Executive and the Legislature.

Arguing that neither the text nor the history of the Government and Regulation of the Military Clause authorizes the exercise of military jurisdiction over enemy combatants.

Arguing that the Framers’ concerns about military mutiny and the abuse of military power by a civilian leader led them to separate the war powers between the Executive and the Legislature.

Arguing that the Framers granted Congress the traditional powers of the British king and that these powers allow Congress to interfere with the President’s conduct of military campaigns.

Arguing that an originalist approach to the Government and Regulation of the Military Clause creates a categorical rule-based approach that fails to properly define military jurisdiction and proposing an alternative approach.

Documenting how the Supreme Court in Loving v. United States looked to English constitutional history to determine the Framers’ intent in drafting the Government and Regulation of the Military Clause.

Arguing that Alexander Hamilton’s writing in The Federalist No. 69 indicates that the congressional role in war-making is best characterized as flowing from an executive power that, under the English system, was reserved solely to the Monarch.

Proposing that the Framers’ distrust of unmitigated military power led them to diffuse the war powers between the three separate branches of government, including by placing military justice under Congress through Article I’s Government and Regulation of the Military Clause, rather than under the Article III federal judiciary.

Outlining the Supreme Court’s originalist analysis in Loving v. United States, which led the Court to conclude that Congress may delegate the implementation of the capital murder statute to the President as Commander in Chief.

Documenting the Supreme Court’s transition away from a strict, status-based textual approach to the Government and Regulation of the Military Clause towards an approach based on the Framers’ intent.

Concluding that the Framers’ distrust of unmitigated military power, paired with their need to ensure swift discipline for service members, led them to create a separate court system for the Armed Forces under Congress’s jurisdiction instead of under the federal judiciary.

Arguing that the plain language of the Government and Regulation of the Military Clause, the Framers’ intent in drafting the clause, and historical practice all point to Congress having the authority to create court-martial jurisdiction over non-service-connected capital offenses.

Arguing that the Framers gave Congress authority to regulate the Armed Forces for two reasons: 1) to protect the general personal rights of civilians against abuse by the Commander-in-Chief through the use of the armed forces; and 2) to guard against invasions into the limited personal liberties of service members.

Outlining the Supreme Court’s originalist analysis in Chappell v. Wallace, which led the Court to conclude that Congress has plenary control over regulations, procedures, and remedies related to military discipline.