The Political Balance of Power Over the Military: Rethinking the Relationship between the Armed Forces, the President, and Congress

56 Pages Posted: 18 May 2007 Last revised: 9 Jun 2015

Geoffrey S. Corn

South Texas College of Law

Eric Talbot Jensen

Brigham Young University School of Law

Abstract

Recent events related to the planning and execution of the war in Iraq, most notably the perceived 2003 "firing" of then Army Chief of Staff Eric Shinseki, have raised concerns over the effect of Executive Branch dominance of the military and how that dominance impacts the ability of Congress to obtain timely and important information. Such actions, perceived to discourage members of the military from providing candid views to Congress when they differ with the Administration, even if implied instead of express, strike at the very core of the founder's intent to balance military power within the national government. The military should be viewed as a national agency rather than an Executive Agency, with responsibilities to both the Executive and Legislative Branches, including providing clear and complete information to Congress. This article discusses the unique nature of the military and why it should not be considered an Executive Agency. Through historical constitutional analysis, the article argues that for Congress to perform its "necessary and proper" role, it must be fully informed on military issues within its area of competence and responsibility. The article then suggests the Congress is not currently receiving complete military information and proposes several methods to remedy this critical deficit.

Keywords: National Security Law, Civil-Military Relationship, Constitutional Law, Presidential Power

JEL Classification: K10, K19, K39

Suggested Citation

Corn, Geoffrey S. and Jensen, Eric Talbot, The Political Balance of Power Over the Military: Rethinking the Relationship between the Armed Forces, the President, and Congress. Houston Law Review, Vol. 44, p. 553, 2007. Available at SSRN: https://ssrn.com/abstract=986609

Geoffrey S. Corn (Contact Author)

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

Eric Talbot Jensen

Brigham Young University School of Law ( email )

504 JRCB
Provo, UT 84602
United States

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