Can Presidents ‘fire’ senior military officers? Generally, yes…but it’s complicated

A journalist recently asked me whether a President could “fire” a general.  The answer – pardon the pun – is generally, yes…but there are some legal complications.

The context we are addressing is not one involving criminal misconduct, per se, but rather a situation where the President has lost confidence in the leadership of a particular general or even a group of generals.

Frankly, it is literally unthinkable that any officer these days, and particularly a general officer, would not acquiesce to a President’s request to retire under such circumstances, but let’s consider the options if one or more refused to go.

Here’s the easy part: can the President relieve any officer from any command or, for that matter, any particular position in the armed forces?

In my opinion, yes.  The power to do so is inherent in the President’s Commander-in-Chief authority under Article II, Section 2 of the Constitution, and it cannot be fettered by Congress.  For example, the controversial relief from command of General Douglas MacArthur by President Harry Truman during the Korean War was, according to the conclusions of the Congressional committees that examined the case, “within the constitutional power of the President.”

It is also important to note that the most senior generals – that is, the three and four star generals – only hold those grades during the period in which they occupy positions designated as being ones of “importance and responsibility” per 10 U.S.C. § 601.

Accordingly, if the President chooses to terminate that assignment, and the officer does not apply for voluntary retirement, then he or she will typically revert to their permanent grade, usually as a two-star major general.  There are very significant financial implications to the reversion to the lower grade (by military pay standards that is; even after decades of service most two-star generals make less than first-year associates at big law firms).

In any event, if an officer (especially one who had been a three or four-star general) is relieved from his or her position and reverts to the lower rank of major general and still refuses to request retirement, the President may be able to dismiss the officer from the armed forces entirely.

A little history: up until the end of the Civil War, the President exercised virtually unconstrained power to dismiss military officers.  However, in 1865 Congress passed legislation which purports to limit that power.  That legislation was essentially the same as that found today codified in 10 USC § 1161(a).

The legitimacy of Congress imposing statutory restrictions on the authority of the President to remove military officers was initially “subject of doubt and discussion.”  It remains controversial even today, particularly since there doesn’t seem to be a case precisely on point as to the constitutionality.

Nevertheless, the better view does seem to suggest that Congress has the power to set some limits on the President’s dismissal authority – at least in times of peace.  That power would be properly founded in Congress’ Article I, Section 8, Clause 14 authority to “make rules for the government and regulation of the land and naval forces.”  Still, the “President’s power of dismissal in time of war [is something] Congress has never attempted to limit.”

So what does 10 U.S.C. § 1161(a) provide?  Here is the text:

(a) No commissioned officer may be dismissed from any armed force except—

(1) by sentence of a general court-martial;

(2) in commutation of a sentence of a general court-martial; or

(3) in time of war, by order of the President. 

Are we currently in a “time of war” as used by this statute?  Although the phrase “time of war” is used in many U.S. statutes, there is no universally accepted definition of precisely what it means.  Some court decisions indicate it means war when declared by Congress, and some statutes do use the phrase the “time of war declared by Congress.” (Italics added.)

However, the absence of the “declared by Congress” language may in and of itself mean that “time of war” is not limited to declared wars. There certainly is plenty of authority for the proposition that a “war” can exist without a formal declaration thereof, beginning with the Supreme Court’s decision in the 1800 case of Bas v. Tingy.

The Manual for Courts-Martial (itself authorized by law) defines “time of war” in its Rules for Court-Martial (RCM) Rule 103 (19) to mean: “a period of war declared by Congress or the factual determination by the President that the existence of hostilities warrants a finding that a ‘time of war’ exists….”  However, this particular RCM provision is “for purposes of RCM 1004(c)(6) and implementing the applicable paragraphs of Parts IV and V of this Manual only.”

In other words, that definition is not necessarily controlling for the purpose of interpreting 10 U.S.C. § 1161(a)(3).  Thus, whether we are at a “time of war” for purposes of a dismissal is best analyzed via the functional approach set forth in United States v. Rivaschivas, 74 M.J. 758 (ACCA 2015), pet. den. 2015 CAAF LEXIS 911 (C.A.A.F., Oct. 15, 2015) and discussed here.  Suffice to say, the court found that there was a time of war for purposes of the statute of limitations under military law (10 U.S.C. § 843).

Moreover, given that the Supreme Court in Hamdan v Rumsfeld has characterized the current conflict as a noninternational armed conflict under Common Article 3 of the Geneva Conventions, it appears that our present circumstance would qualify as a “time of war” for purposes of the statutory authority of the President to dismiss officers.

However, our inquiry is still not over.  Under Article 4 (10 U.S.C. § 804) of Uniform Code of Military Justice (UCMJ) a dismissed officer has the right to demand a trial by court-martial.  Although the UCMJ has a fairly wide variety of uniquely military offenses from which to draw charges, it is quite possible – even likely – that dismissal based on a loss of confidence would not constitute a criminal offense, even under military law.

So what happens then?  The President can simply wait out the officer because 10 U.S.C. § 804 also provides “[i]f the President fails to convene a general court-martial within six months from the presentation of an application for trial under this article, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue.”

The substitution of an administrative discharge for a “dismissal” is significant because a dismissal is a punitive discharge for an officer (it’s the equivalent of a dishonorable discharge for an enlisted person).  A dismissal would extinguish almost all veterans’ benefits, as well as rights to military retirement pay.  An administrative discharge ordinarily will make some or all of those benefits possible.

There is also one other matter worthy of a brief discussion, and that is the words of the officer’s commission (DD Form 1) that is the President’s exclusive prerogative to issue.  The commission states in relevant part:

This commission is to continue in force during the pleasure of the President of the United States of America, for the time being, under the provisions of those Public Laws relating to Officers in the Armed Forces of the United States of America and the component thereof in which this appointment is made. 

Although I would bet that most officers believe that they serve at the “pleasure of the President” in the sense that the President could remove them at any time, the actual words of the commission appear to loop in the current statutory framework that provides some limits on the President’s prerogative.

In short, although the process is somewhat tangled, it is currently possible for the President to dismiss officers from the armed forces, even in the absence of criminal misconduct.  That said, the incentives are such – not to mention professional propriety – that it’s extraordinarily unlikely that any President in the modern era would be obliged to force officers out, as almost all would retire if asked.  But if it became necessary to compel an officer to leave the military, the Constitution and the law provide a way to make that happen.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!                       

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