The soldier, the state, and the separation of powers

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As U.S. counterterrorism activities continue to engage the armed forces in profound legal and policy debates over detention, interrogation, targeting, and the use of force, recent legal scholarship has painted a grim picture of the effective vitality of civilian control over the U.S. military. Prominent generals leverage their outsized political influence to manipulate the civilian political branches into pursuing their preferred course of action. Bureaucratically sophisticated officers secure the adoption of their policy judgments in the Executive Branch and Congress contrary to civilian preferences. And misplaced judicial deference to military expertise on what is necessary to regulate the special community of the armed forces exacerbates the growing social separation between the military and the society it serves. The question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies is made especially complex by the unique constitutional role of the military. But before one can tell whether civilian control is threatened, one must first have some understanding of what it is. For all the intense focus in recent years on the legality of what the military does, where the modern military fits in our constitutional democracy has remained remarkably undertheorized in legal scholarship. Moreover, prevailing theories of civilian control in the more developed social- and political-theory literature of civil-military affairs view the Constitution's separation of powers-in particular, the allocation of authority over the military to more than one branch of government-as a fundamental impediment to the maintenance of civilian control as the theories take it to be defined. As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control. This Article is an effort to begin filling that gap, by examining whether and how the constraining advice of military professionals may be consistent with our modern separation-of-powers scheme.

Original languageEnglish (US)
Pages (from-to)797-858
Number of pages62
JournalTexas Law Review
Issue number4
StatePublished - 2012
Externally publishedYes

All Science Journal Classification (ASJC) codes

  • Law


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