A handful of retired generals among 4,000 political appointees does not make for a “Coup of 2017”

Reports that a handful of retired generals are among the nominees for the 4,000 political appointments the new administration needs to make have created a kerfuffle among those who see that development as a threat to civil-military relations and to civilian control of the military generally.

As the author of a (1992!) paper entitled “The Origins of the American Military Coup of 2012” I have a long-standing interest in this subject, and strongly support civilian control of the military as essential to our democracy.  Importantly, in introducing that fictionalized essay nearly 25 years ago, I said this:

It goes without saying (I hope) that the coup scenario above is purely a literary device intended to dramatize my concern over certain contemporary developments affecting the armed forces, and is emphatically not a prediction.

In a new essay over on Vox I further note:

Some people may try to twist the Coup of 2012’s message to fit today’s political environment, but there’s a key difference. The essay wasn’t about the military seeking to intrude into the civilian arena, but rather about the risks of civilian leaders — and the broader American public — giving the armed forces inappropriate domestic responsibilities ranging from policing to even teaching in the schools. There is no evidence of any appetite in the active or, especially, the retired ranks of top generals for the military to become deeply engaged here at home. It should go without saying that there are also no absurd “coup-like” inclinations either. 

Of course, if there are trepidations about a former officer – or anyone for that matter – who would hold a public office the Constitution provides a process (the Appointments Clause) that permits the Senate to conduct as robust an inquiry as desired before voting on the required confirmation.  I think it’s entirely appropriate to conduct a searching inquiry of former officers in particular just to assure the Senate, and the public at large, that the Republic is not in jeopardy solely because an otherwise well-qualified nominee is a veteran.

There is also a special issue concerning the nomination of retired general Jim Mattis (who I support for Secretary of Defense) as there is a statutory ban on officers serving as Secretary of Defense within seven years of their “relief from active duty.”  (Mattis retired in 2013.)

Over on The Hill I critique that ban as wrongly stigmatizing an entire group based on stereotyped suspicions that they somehow imperil democracy, despite the fact that they put their lives on the line for decades to “support and defend” the very Constitution the ban seems to assume they threaten.  I say in part:

Sadly, we’ve seen this movie before.  Indeed, this country has an ugly history about branding entire groups of people as “dangerous” to the security of the state, and barring them from lawful activities that others enjoy. In 1942 it was Japanese-Americans, but today in the minds of some it is, astonishingly, veterans. Who will be next to be barred from public office based on stereotypes? Native Americans? Muslims? Gays? The poor? You?

Although I didn’t discuss it in either essay, I also have my doubts about the Constitutionality of the statutory ban.  Given that government can compel military service can it then turn around and use that compelled service to disenfranchise from a civilian public office, even temporarily, those who complied with the law and served as their country wanted them to do?

Consider this as well: in a 2005 article (“Advice and Consent: What the Constitution Says”) Northwestern law professor John McGinnis explained the background and purpose of the Appointments Clause.  Although not addressing specifically the statutory ban on former military officers serving as Secretary of Defense, he did observe that “[t]he purpose of dividing the act of nomination from that of appointment also refutes the permissibility of any statutory restriction on the individuals the President may nominate.” (Italics added.)

In addition, recent litigation over voter identification laws might also provide some analogous rationale to question the Constitutionality of the ban.  Although everyone wants to prevent voter fraud, studies seem to show that it is very rare.  This is leading courts to strike down all or part of laws that required stricter voter identification standards.  One federal judge said of a Wisconsin law:

[E]xperience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities.

Thus, can we say that, in light of the dearth of evidence in U.S. history that the military has posed any real threat to seize power from its civilian masters, is it really Constitutional to maintain the seven-year “disenfranchisement” of former officers from serving as Secretary of Defense simply because of “mostly phantom” fears about losing civilian control of the military?

In any event, I invite you to check out the essay on Vox (found here) and the one on The Hill (found here)