Author ORCID Identifier

0000-0001-9690-0326

Document Type

Article

Publication Date

2019

Keywords

Administrative military, Operational military, Civilian control, Goldwater-Nichols Act, Chain of command, Congress

Abstract

This Article offers a new way to think about the military. In doing so, I argue that there are, in fact, two militaries residing within the Department of Defense (DoD): an “operational” and an “administrative” military.

In Part II, I propose this new two-military analytical framework. This Part begins with a brief historical overview of the dual-military state and argues that these two militaries coexisted in some form since the nation’s founding, grew further apart following World War II and the National Security Act, and effectively separated following the passage of the 1986 Goldwater-Nichols Act.

Part III analyzes the Goldwater-Nichols Act of 1986. This Act, largely unexamined by existing legal scholarship, establishes the lawful civil-military chain of command, critical to ensuring objective civilian control of the military. Under the DoD’s agency design, the civilian Secretaries of the military departments are effectively relegated to a secondary role as the heads of the administrative military, in support of the uniformed military combatant commanders. The operational military commanders, in turn, are increasingly delegated broader war-making authorities, accelerating independent executive action at the expense of congressional oversight.

Part IV addresses the two-military divide’s consequences, many unintended. Adrian Vermeule, David Dyzenahus, and other scholars have described the emergence of aptly named “black holes” and “grey holes” and their effects on administrative law governance during times of war and emergency. Such holes serve as legal trap doors that exempt or modify oversight over certain agency actions depending on external factors. But there are also internal factors unique to DoD and its organizational design—what I refer to as “institutional holes”—where administrative law may or may not apply. And within these institutional holes, governmental actions are often shrouded in secrecy—itself a form of regulation.

Part V addresses several independent accelerants of this two-military divide. Finally, Part VI provides initial recommendations with an eye toward strengthening civilian control of the operational military and reforming national security governance. A brief conclusion follows.

First Page

905

Publication Title

Georgia Law Review

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