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CRS Annotated Constitution

CRS Annotated Constitution

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[p.314]

Care of the Armed Forces

Scope of the congressional and executive authority to prescribe the rules for the governance of the military is broad and subject to great deference by the judiciary. The Court recognizes “that the military is, by necessity, a specialized society separate from civilian society,” that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian,” and that “Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which [military society] shall be governed than it is when prescribing rules for [civilian society].”1452 Denying that Congress or military authorities are free to disregard the Constitution when acting in this area,1453 the Court nonetheless operates with “a healthy deference to legislative and executive judgments” with respect to military affairs,1454 so that, while constitutional guarantees apply, “the different character of the military community and of the military mission requires a different application of those protections.”1455

In reliance upon this deference to congressional judgment with respect to the roles of the sexes in combat and the necessities of military mobilization, coupled with express congressional consideration of the precise questions, the Court sustained as constitutional the legislative judgment to provide only for registration of males for possible future conscription.1456 Emphasizing the unique, separate status of the military, the necessity to indoctrinate men in obedience and discipline, the tradition of military neutrality in political affairs, and the need to protect troop morale, the Court upheld the validity of military post regulations, backed by congressional enactments, banning speeches and demonstrations of a partisan political nature and the distribution of literature without prior approval of post headquarters, with the commander authorized to keep out only those materials that would clearly endanger[p.315]the loyalty, discipline, or morale of troops on the base.1457 On the same basis, the Court rejected challenges on constitutional and statutory grounds to military regulations requiring servicemen to obtain approval from their commanders before circulating petitions on base, in the context of circulations of petitions for presentation to Congress.1458 And the statements of a military officer urging disobedience to certain orders could be punished under provisions that would have been of questionable validity in a civilian context.1459 Reciting the considerations previously detailed, the Court has refused to allow enlisted men and officers to sue to challenge or set aside military decisions and actions.1460

Congress has a plenary and exclusive power to determine the age at which a soldier or seaman shall be received, the compensation he shall be allowed and the service to which he shall be assigned. This power may be exerted to supersede parents’ control of minor sons who are needed for military service. Where the statute requiring the consent of parents for enlistment of a minor son did not permit such consent to be qualified, their attempt to impose a condition that the son carry war risk insurance for the benefit of his mother was not binding on the Government.1461 Since the possession of government insurance payable to the person of his choice is calculated to enhance the morale of the serviceman, Congress may permit him to designate any beneficiary he desires, irrespective of state law, and may exempt the proceeds from the claims of creditors.1462 Likewise, Congress may bar a State from taxing the[p.316]tangible, personal property of a soldier, assigned for duty therein, but domiciled elsewhere.1463 To safeguard the health and welfare of the armed forces, Congress may authorize the suppression of bordellos in the vicinity of the places where forces are stationed.1464

Trial and Punishment of Offenses: Servicemen, Civilian Employees, and Dependents

Under its power to make rules for the government and regulation of the armed forces, Congress has set up a system of criminal law binding on all servicemen, with its own substantive laws, its own courts and procedures, and its own appeals procedure.1465 The drafters of these congressional enactments conceived of a military justice system with application to all servicemen wherever they are, to reservists while on inactive duty training, and to certain civilians in special relationships to the military. In recent years, all these conceptions have been restricted.

Footnotes
1452 Parker v. Levy, 417 U.S. 733, 743–752 (1974). See also Orloff v. Willoughby, 345 U.S. 83, 93–94 (1953); Schlesinger v. Councilman, 420 U.S. 738, 746–748 (1975); Greer v. Spock, 424 U.S. 828, 837–838 (1976); Middendorf v. Henry, 425 U.S. 25, 45–46 (1976); Brown v. Glines, 444 U.S. 348, 353–358 (1980); Rostker v. Goldberg, 453 U.S. 57, 64–68 (1981).
1453 Rostker v. Goldberg, 453 U.S. 57, 67 (1981).
1454 Id., 66. “[P]erhaps in no other area has the Court accorded Congress greater deference.” Id., 64–65. See also Gilligan v. Morgan, 413 U.S. 1, 10 (1973).
1455 Parker v. Levy, 417 U.S. 733, 758 (1974). “[T]he tests and limitations [of the Constitution] to be applied may differ because of the military context.” Rostker v. Goldberg, 453 U.S. 57, 67 (1981).
1456 Rostker v. Goldberg, 453 U.S. 57 (1981). Compare Frontiero v. Richardson, 411 U.S. 677 (1973), with Schlesinger v. Ballard, 419 U.S. 498 (1975).
1457 Greer v. Spock, 424 U.S. 828 (1976), limiting Flower v. United States, 407 U.S. 197 (1972).
1458 Brown v. Glines, 444 U.S. 348 (1980); Secretary of the Navy v. Huff, 444 U.S. 453 (1980). The statutory challenge was based on 10 U.S.C. Sec. 1034 , which protects a serviceman’s right to communicate with a Member of Congress, but which the Court interpreted narrowly.
1459 Parker v. Levy, 417 U.S. 733 (1974).
1460 Chappell v. Wallace, 462 U.S. 296 (1983) (enlisted men charging racial discrimination by their superiors in duty assignments and performance evaluations could not bring constitutional tort suits); United States v. Stanley, 483 U.S. 669 (1987) (officer who had been an unwitting, unconsenting subject of an Army experiment to test the effects of LSD on human subjects could not bring a constitutional tort for damages). These considerations are also the basis of the Court’s construction of the Federal Tort Claims Act so that it does not reach injuries arising out of or in the course of military activity. Feres v. United States, 340 U.S. 135 (1950). In United States v. Johnson, 481 U.S. 681 (1987), four Justices urged reconsideration of Feres, but that has not occurred.
1461 United States v. Williams, 302 U.S. 46 (1937). See also In re Grimley, 137 U.S. 147, 153 (1890); In re Morrissey, 137 U.S. 157 (1890).
1462 Wissner v. Wissner, 338 U.S. 655 (1950); Ridgway v. Ridgway, 454 U.S. 46 (1981). In the absence of express congressional language, like that found in Wissner, the Court nonetheless held that a state court division under its community property system of an officer’s military retirement benefits conflicted with the federal program and could not stand. McCarty v. McCarty, 453 U.S. 210 (1981). See also Porter v. Aetna Casualty Co., 370 U.S. 159 (1962) (exemption from creditors’ claims of disability benefits deposited by a veteran’s guardian in a savings and loan association).
1463 Dameron v. Brodhead, 345 U.S. 322 (1953). See also California v. Buzard, 382 U.S. 386 (1966); Sullivan v. United States, 395 U.S. 169 (1969).
1464 McKinley v. United States, 249 U.S. 397 (1919).
1465 The Uniform Code of Military Justice of 1950, 64 Stat. 107 , as amended by the Military Justice Act of 1968, 82 Stat. 1335 , 10 U.S.C. Sec. 801 et seq. For prior acts, see 12 Stat. 736 (1863); 39 Stat. 650 (1916).

Supplement: [P. 316, add to n.1465:]

See Loving v. United States, 517 U.S. 748 (1996) (in context of the death penalty under the UCMJ).

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