In an October White House photo, President Trump presented the military’s ultimate symbol of heroism, the Medal of Honor, to a dog. It was a joke, a doctored photo reposted on the president’s Twitter account. But even though the president didn’t actually award the Medal of Honor to a dog, legal scholars agree that as commander in chief of the military, he could have.
This week, Mr. Trump reversed the decision of the commander of the Navy SEALs to remove a convicted sailor from its ranks. The move prompted many to ask what the limits on the president’s authority are to intervene in the military.
Military scholars say, they are few.
He could, hypothetically, also order all the Air Force’s jets painted pink, appoint his chauffeur to an elite commando force or require all officers to wear long, red ties on Fridays.
“The president’s power is very broad, he can micromanage in nearly anything in the military, no matter how trivial,” said Eugene Fidell, who teaches military law at Yale Law School.
On Wednesday the Navy began a process to take the Trident pin of Chief Petty Officer Edward Gallagher, ousting him from the SEALs. Less than 24 hours later, the president reversed the order in a message on Twitter, saying, “The Navy will NOT be taking away Warfighter and Navy Seal Eddie Gallagher’s Trident Pin. This case was handled very badly from the beginning. Get back to business!”
The announcement caught the military off guard, sending commanders from Washington to California scrambling as the Navy searched for clarity.
The president absolutely had the power to do it, Mr. Fidell said. He even has the power to pick people off the street with no qualifications and make them SEALs, he added, though nepotism laws might prevent him from giving the title to family members.
Presidential power over the military runs deep and hits up against just two limits, he said, Congress and the Constitution.
A president cannot create policies that violate constitutional rights. For example, Mr. Fidell said, the president could not block anyone of a specific race or religion from becoming a SEAL because of equal protection and First Amendment rights. A case challenging the president’s decision to bar transgender recruits from joining the military is working its way through the courts now.
A president also cannot order the military to do something that violates a law enacted by Congress, such as the law that repealed the Don’t Ask, Don’t Tell policy, which barred gay troops from serving openly in the military.
But those two constraints leave a broad thoroughfare, crowded with ships, fighter jets and nuclear weapons, where the president has considerable discretion.
“Think of the implications,” Mr. Fidell said. “I suppose it is possible he could tell the Navy who should be a pilot. And if the guy in charge didn’t like it, he could fire him.”
The president’s power over the military is no mistake. Founding fathers knew the executive would need broad authority in war. But the real boundaries of what a president can do as a commander in chief in the day-to-day operations of the armed forces have never been tested, experts say, because since the beginning of the republic the presidency has given the military broad deference in how it runs its affairs.
“The Constitution is a very brief document; it leaves a lot unsaid. So for centuries the president and the military have had to rely on mutual understanding,” said Thomas Bruneau, who taught national security at the Naval Postgraduate School. The president makes broad strategic and political decisions about military power, he said, and the military generally makes decisions on how those decisions will be executed, and by whom.
“This level of intervention at such a low level? I’ve never seen it,” Mr. Bruneau said.
To be sure, presidents have sometimes involved themselves in the minutiae of making war. President Lyndon B. Johnson, for example, personally approved targets for B-52 bombing runs in Operation Rolling Thunder, during the Vietnam War.
But by and large presidents have steered clear of retail personnel actions like the decision to bestow or remove the Trident pin, so the question of whether it is legal has rarely been asked.
“I suspect a lot of Navy lawyers are trying to figure that out, themselves, right now,” said Geoffrey Corn a retired Army lieutenant colonel who teaches military law at South Texas College of Law.
Congress, he said, has some authority to enact statutes specifically limiting certain executive actions. For example, it could craft a law restricting the president’s authority to assign troops in certain specialized units like the SEALs or other special operations forces to qualified military commanders.
But, he said, Congress has been careful not to create too many restrictions, concerned it might impede the ability to act in times of national emergency.
“For a long time the system has worked. The military and the president don’t always agree but they have a trusting relationship,” Mr. Corn said. The decision to override a Navy admiral in Chief Gallagher’s case, he said, “sends a message that the president doesn’t trust his commanders, and could really corrode that longstanding relationship.”
He agreed that it was in the president’s legal authority to restore a SEAL’s trident. But he said it might be good for the president to heed advice he tells first-year law students: “Just because it’s legal, doesn’t mean it’s right.”
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