Both the Oath and Commission Clauses confirm an important point: Those who exercise the power of Government are set apart from ordinary citizens. Because they exercise greater power, they are subject to special restraints. There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.
In the armed forces, officers command. As a consequence—or, perhaps, by necessity—officers are entrusted with tremendous, even terrible, authority. It perhaps should be unsurprising, therefore, that the Constitution restricts those who may wield such power. Further, for military officers, authority is balanced by accountability: if their authority is abused, they can be called to account, administratively and criminally. But are officers really the only “commanders” in the armed forces? Are there others who are able to exercise that sort of power? The short answer is “yes.” They are the civilian employees who supervise officers.
Take this hypothetical unit’s headquarters. An active-duty Army brigadier general commands this headquarters. A civilian who is employed in a General-Schedule (GS) 15 position serves as the deputy to the commander. The previous commander’s predecessor’s predecessor—importantly, who was also an active-duty brigadier general—appointed the civilian employee into the civil service. Below the civilian deputy, there are two staff sections. An Army officer in the grade of lieutenant colonel leads the first staff section; the other is led by a civilian employee. The lieutenant colonel has three subordinates: one is a civilian employee and the other two are officers, including a Captain (CPT) Robert J. Snuffy. The deputy to the commander is the rater for each of the staff-section heads, while the commander serves as the lieutenant colonel’s senior rater.
At a morning meeting, the deputy to the commander instructs CPT Snuffy’s staff-section head to have CPT Snuffy prepare a short briefing for the deputy on a pending contract action. The briefing is due the following morning at 0800. The staff-section head dutifully instructs CPT Snuffy accordingly. But alas, CPT Snuffy fails to comply. (The reason why does not really matter, but for the sake of the story, the reason was no good reason at all: the good captain just did not want to do it, as unlikely as that may be.) At 0800 the next morning, there is no briefing.
To be sure, the deputy’s instruction was arguably the definition of mundane. Across the Army, countless supervisors instruct an even greater number of staff officers to present innumerable briefings to what must be a lengthy list of leaders. Some of those harried officers fail. It happens. Indeed, had the deputy given the instruction himself, this would be an aptly named leadership challenge—something to be addressed but not, like the instruction itself, that big of a deal.
But the deputy to the commander did not give CPT Snuffy the instruction himself. Instead, he had CPT Snuffy’s superior commissioned officer do that. That instruction, therefore, became a superior commissioned officer’s command. As a result, CPT Snuffy’s disobedience was something more than just a leadership challenge; it was a felony.
The difference here is a result of an important distinction: the deputy is a civilian employee, but the staff-section head, a lieutenant colonel, is an officer of the United States. Moreover, this distinction reflects a very real difference. In short, an officer of the United States may wield a remarkable authority—“the power of [the] Government” of the United States. Indeed, that remarkable authority takes on a different character in the armed forces. This is because the lieutenant colonel is not just any old officer of the United States, but rather, CPT Snuffy’s “superior commissioned officer.” Thus, their authority is the power to issue a command, and a command, if disobeyed, carries with it a criminal penalty that can be quite severe.
The Constitution identifies a specific process to appoint officers. Its Appointments Clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all . . . officers of the United States.” The clause is not merely a matter of “etiquette or protocol”; rather, “it is among the significant structural safeguards of the constitutional scheme.” The clause is “designed to preserve political accountability relative to important government assignments,” and it reflects the framers’ concern regarding “who should be permitted to exercise the awesome and coercive power of the government.” In short, the clause is about ensuring that those who exercise “significant authority pursuant to the laws of the United States” are “accountable to political force and the will of the people.”
At the same time, the Court’s chosen qualifier, significant, suggests that non-officers may be given some level of authority; the question is how much. Indeed, the Supreme Court has long recognized that a person may be “an agent or employé [sic] working for the government and paid by it, as nine-tenths of the persons rendering service to the government undoubtedly are, without thereby becoming its officers.” These are “employees of the United States,” who are “lesser functionaries subordinate to officers.” Yet, despite the rather lengthy history of these categories, the line separating one from the other has been, and remains, “not altogether clear.”
Despite that haziness—and ongoing disputes over who is, or must be, an officer—a point has emerged in case law in which a person’s authority becomes significant. That point occurs when that authority is, among other things, the power to create or determine a legal obligation. For the armed forces, this occurs rather regularly in a very common practice: it is called, colloquially, giving orders. Of course, that is precisely what the lieutenant colonel’s request to CPT Snuffy was: it was an order—really, a command—which is nothing more, or less, than a binding, criminally-enforceable legal obligation.
Yet, the true source of that command was not the lieutenant colonel; it was really the deputy to the commander. There is no reason to think that had the deputy not asked for that unfortunate briefing, the lieutenant colonel would have issued this command. Indeed, it was the deputy to the commander who decided CPT Snuffy would brief, the briefing’s content, and its deadline. Still, that detailed, if routine, “request” became a legal obligation only because the lieutenant colonel issued it as a command. In effect—importantly, even if it not in intent—the deputy to the commander commandeered the lieutenant colonel’s authority.
There is a problem with that, though. The deputy to the commander is not an officer of the United States. He was not appointed in accordance with the Appointments Clause. He was hired. Despite that fact, because he was the lieutenant colonel’s supervisor, the deputy was able to exercise his subordinate officer’s authority, an authority that the Appointments Clause reserves to officers. Simply put, this contravenes the Constitution.
To establish that conclusion, this article proceeds in three parts. Naturally enough, it begins with the Appointments Clause. Drawing on Supreme Court and lower-court opinions, the article will argue that significant authority is, among other things, the power to create or determine a legal obligation. It will then apply this test to an officer’s power to issue commands under the Uniform Code of Military of Justice (UCMJ), and will argue that that power is the power to create just such a legal obligation and that, consequently, it is the exercise of significant authority. Ultimately, this section will conclude that only an officer of the United States, who has been appointed in accordance with the Appointments Clause, may issue a command.
In the second section, this article applies that conclusion to an organizational structure like that presented in the hypothetical, namely, a civilian employee who supervises a military officer who, in turn, supervises military subordinates. Essentially, this structure inserts a civilian employee into a military organization’s supervisory chain. This section begins by identifying those tools that are available to a civilian employee to control military subordinates. Among these tools is a supervisor’s authority to “direct and assess”—rate—a subordinate military officer. Those tools gives the civilian supervisor the ability to fire—that is, relieve—the officer from that officer’s current assignment. Together, they allow the supervisor to essentially, albeit generally not immediately, end an officer’s career—likely resulting in the officer’s discharge.
The courts have long recognized the principle that one who can remove an officer is one who can control that officer. Applying that principle, the second part of this section will argue that, in some circumstances, those tools give the civilian supervisor the ability to effectively exercise a subordinate officer’s authority. The supervisor does so by instructing the officer to create a legal obligation for a subordinate service member—that is, to issue a command. This section will argue in its second part that the exercise of this supervisory authority violates the Appointments Clause.
In the third and final section, this article will identify potential resolutions. These include appointing civilian employees as civil officers; restricting the authority of civilian employees such that they can no longer require subordinate officers to issue commands; or restructuring organizations to prevent this issue from emerging at all. Although each solution carries real costs, this article will argue that the latter solution is the better solution—in part based on a policy preference that significant authority should come with substantial accountability.
Two important caveats are in order. First, this article addresses only the specific organizational relationship in which a civilian employee supervises a military officer who, in turn, supervises military subordinates. It does not address any other circumstance in which a civilian—including a civil officer, e.g., the Secretary of Defense—supervises an officer.
Further, as a matter of constitutional law, an officer may perform all the functions of an employee. When a civilian employee supervises an officer in a circumstance in which the officer acts only as an employee—and specifically, when the officer has no directly reporting military subordinates—the Appointment Clause issue discussed here may not arise. In any event, such a supervisory arrangement is not the subject of this article.
Second, this article focuses only on the authority of a civilian employee over a military officer and not any other grade of service member. To be sure, other service members give orders, namely, warrant officers, noncommissioned officers, and petty officers. As these titles aptly suggest, such orders are issued by persons not appointed as officers. But, the penalty for disobeying these orders is considerably less than the penalty for disobeying a superior commissioned officer’s command. It could be argued, consequently, that such orders do not reflect the exercise of significant authority. Regardless, this is not the article’s subject.
Who decides is the basic question at the core of the United States’—and really any—constitutional scheme. The Constitution establishes a process for appointing those who will decide, that is, those who will exercise the “sovereign authority” of the United States. The power to create a legal obligation is the exercise of such authority, and that is just what a military officer’s command is—a binding legal obligation, one that carries a substantial criminal penalty if disobeyed. In short, to exercise such a tremendous, even awesome, power under the Constitution, one must be appointed in accordance with it, and a deputy to a commander is not.
II. The Appointments Clause and the Military Officer
A. U.S. Officers and the Exercise of Significant Authority
In its entirety, the Appointments Clause reads:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
It is a relatively short clause, measuring all of eighty-one words, but it has generated a fair share of confusion. For example, sitting as a circuit justice, Chief Justice Marshall wrote of the clause: “I feel no diminution of reverence for the framers of this sacred instrument, when I say that some ambiguity of expression has found its way into this clause.” Indeed, the third Chief Justice’s lament regarding the clause’s ambiguity has continued to the present day.
Despite that ambiguity, the clause clearly has one built-in limitation: it applies only to officers of the United States. Yet, not everyone who works for the United States is an officer. One category of such persons is employees, who the Supreme Court has described as “lesser functionaries subordinate to officers of the United States.”
The fact that the clause applies to only some persons, but not others, also implies that the two categories are constitutionally distinct. Unfortunately, the “line between ‘mere’ employees and . . . officers is anything, but bright.” In part, that ambiguity arises from the simple fact that “[i]t is relatively rare for a case to raise an issue involving the fundamental structural provisions devised by the Framers in allocating power within the government they constructed.” More importantly, in its earliest cases, the Supreme Court did not really attempt to draw that line at all. Instead, it essentially concluded that so long as one of the three constitutional appointment authorities—namely, the President, the courts, or the heads of the departments—appointed a person to an office “established by Law,” the person was an officer. It was, in the words of one circuit court, “circular logic.”
That changed in 1976. In the case of Buckley v. Valeo, the Supreme Court decided that the Appointments Clause was not just concerned with titles, but rather contained a “substantive meaning”—really a limitation. In essence, the Court read the clause to restrict the exercise of some government powers to officers. Specifically, only an officer appointed to an office that was established by law could exercise “significant authority pursuant to the laws of the United States.” Despite that conclusion, however, the nature of those two requirements remains the subject of debate; it is to their meanings to which this article turns next.
1. “Established by Law”
To begin with, the Appointments Clause states that the President shall nominate and appoint “all other Officers of the United States . . . which shall be established by Law.” Since relatively early in the Constitution’s history, the meaning of the qualifier clause—established by law—has been the subject of debate. In an 1823 case, Maurice v. United States, Chief Justice Marshall, sitting as a circuit justice, wrote that the clause was subject to two interpretations: first, “that all offices of the United States shall be established by law” or, second, that the Appointments Clause only applied “to such offices.” In the latter interpretation, the clause would “leav[e] it to the power of the executive . . . [to] create in all laws of legislative omission, such offices as might be deemed necessary for their execution, and afterwards to fill those offices.” Put another way, the President could unilaterally create, and fill, an office.
In Maurice, the Chief Justice rejected that latter interpretation. Later, the Supreme Court itself required that before a person could be an officer, that person must be appointed to an office that had been established by law. Since Buckley v. Valeo, consistent with Maurice, and as recently as 2018, the Supreme Court has never suggested that a person may exercise significant authority even though the person holds no office established by law.
Despite that fact, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has at least suggested that that may not be the case. Specifically, and literally parenthetically, the D.C. Circuit has called the established-by-law requirement “the threshold trigger for the Appointments Clause.” By calling it a “threshold trigger,” the court could be suggesting that the Clause, in its entirety, applies only to those positions that are established by statute. But if the clause does not apply at all, that necessarily implies that the clause’s restriction on the exercise of significant authority does not apply either.
It is, at best, difficult to square the D.C. Circuit’s approach with Chief Justice Marshall’s construction of the Appointments Clause in Maurice. Moreover, such a threshold is even harder to square with Buckley’s overall holding that the clause contains a substantive limitation on the exercise of authority. Indeed, if the established-by-law qualifier was really a threshold that must be satisfied before the clause, including its limitation on the exercise of significant authority, was applicable, the limitation would be simple to avoid: delegate significant authority to someone holding a position not established by law.
Consequently, the better construction of the clause is that a person must hold an office established by law before that person may exercise significant authority. An appointment to an office is, in other words, a prerequisite to the exercise of significant authority, and consistent with Maurice, a person can only be appointed to an office established by law. Thus, that additional requirement does not void the clause’s overall limitation.
Assuming that is the case, the inquiry of whether an office is established by law is holistic, taking into account a number of authorities. For instance, how a statute defines an office’s “duties, salary, and means of appointment” is relevant. Thus, a statute need not specifically authorize the appointment of an officer to a particular position in a particular agency.
For instance, in Landry v. Federal Deposit Insurance Corporation, the D.C. Circuit considered whether a Federal Deposit Insurance Corporation (FDIC) administrative law judge (ALJ) must be appointed as an officer. The FDIC appointed this particular ALJ pursuant to an executive branch-wide authority to appoint ALJs; that is, the statutory authority to hire an ALJ was not specific to this ALJ or even to all of the FDIC’s ALJs. The D.C. Circuit found that the ALJ’s position was established by law despite the agency-agnostic statutory authority. Indeed, outside of certain designated positions that require a dual appointment, military officers hold an office described by grade, not position.
In sum, a person can only be appointed to an office established by law and only such a person, if otherwise properly appointed, may exercise “significant authority pursuant to the laws of the United States.” It is to that type of authority to which this article turns to next.
2. Significant Authority
Only an officer may exercise “significant authority pursuant to the laws of the United States” consistent with the Appointments Clause. But what amount of authority is significant? To be sure, the cases concerning this standard have not been, in the words of the D.C. Circuit, “altogether clear.” At its core, however, a person exercises significant authority when that person employs the “sovereign authority” of the United States. That occurs, generally, when the person has the power to create or determine a binding legal obligation.
As an initial matter, the “significant authority” test is of a somewhat more recent vintage. It emerged in 1976 from the Supreme Court’s decision of Buckley v. Valeo—a seminal case concerning federal election law. Before Buckley, whether a person was an officer—or not—largely turned on who appointed the person, not on the powers that the person exercised. Thus, an officer was an officer if appointed by one of the constitutional appointment authorities, namely, the President with the advice and consent of the Senate or, if authorized by statute, the President alone, the heads of the departments, or the courts.
That changed in 1976. In Buckley v. Valeo, the Supreme Court addressed the constitutionality of the appointment of the commissioners of the Federal Elections Commission. This was a body that, the Court said, possessed both “extensive rulemaking and adjudicative powers,” and it had an “enforcement power that was direct and wide-ranging.” Perhaps because of that wide-ranging authority, three separate authorities appointed the six voting commissioners: the President pro tempore of the Senate appointed two (after receiving the majority and minority leaders’ recommendations); the Speaker of the House appointed two (“likewise upon the recommendations of [the House’s] respective majority and minority leaders”); and the President appointed the remaining two. Further, both houses of Congress had to “confirm” those members—the President’s appointees along with everyone else.
In determining that this unusual appointment scheme violated the Appointments Clause, the Court stated first that the clause had a “substantive meaning” although, in effect, it meant limitation. Specifically, the Court held, it was “fair import” of the clause that “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer’” and that such an officer must be appointed in accordance with the clause. Citing earlier cases in which the Court had determined that a postmaster general and a district-court clerk were officers, the Court concluded that “the Commissioners before [it] are at the very least such ‘inferior Officers’ within the meaning of that Clause.”
Unfortunately, beyond drawing that analogy, the Court did not expressly articulate a standard for how much authority it took before that authority became significant. It did, however, identify a number “of those powers . . . exercised by the present voting Commissioners,” that must be reserved to officers. Those identified powers, in turn, shed light on the significant-authority threshold. Thus, the Court noted both the Commission’s “broad administrative powers”—namely its ability to make rules, issue advisory opinions, and determine a candidate’s eligibility for funds—and its “enforcement power,” including its authority to seek judicial relief. It concluded that these powers “represent[ed] the performance of a significant governmental duty exercised pursuant to a public law” and held that, therefore, they must be exercised by properly-appointed officers.
The Supreme Court revisited the substance of the significant-authority test in Freytag v. Commissioner Internal Revenue. In that case, the Court considered whether the U.S. Tax Court’s special trial judges (STJs) were inferior officers. Similar to district-court magistrate judges, the Tax Court’s chief judge could assign a STJ to a case for the purpose of preparing recommended findings and conclusions, and importantly, the STJ could also actually decide declaratory judgment and small-dollar cases.
The Supreme Court ultimately held that STJs were inferior officers because of the “significance of the[ir] duties and discretion.” To reach this conclusion, the Court relied on two specific factors: the STJs’ discretion and the finality of some their decisions. Regarding discretion, the Court noted that the judges performed “more than ministerial tasks,” including taking testimony, conducting trials, ruling on motions, and enforcing discovery orders. Similarly, the STJs issued the Tax Court’s final decision in certain cases.
Interestingly, the Court specifically rejected the argument that a person could be an officer for some duties, but a “mere employee with respect to other responsibilities.” Thus, if some of a position’s authority could only be exercised by an officer, the person who holds that position must be an officer regardless of whether that person “on occasion performs duties that may be performed by an employee not subject to the Appointments Clause.” In other words, an officer can do anything an employee can do, but an employee cannot do what only an officer can do.
Taken together, in both Buckley and Freytag, whether a person exercised significant authority turned on whether that person had the power to create or determine, or decide to judicially enforce, a specific legal obligation. Thus in Buckley, among the commission’s “broad administrative powers” was the power to issue rules and adjudicated cases—that is, to create (rule-making) and determine (adjudicating) legal obligations. The commission was also given primary jurisdiction for the civil enforcement—namely, it decided whether to seek judicial enforcement—of several statutes. Similarly, in Freytag, an STJ, among other things, decided “declaratory judgment proceedings and limited-amount tax cases.” Thus, there too the STJ was determining a legal obligation, namely, a person’s tax liability.
The D.C. Circuit has identified three factors it uses, if inconsistently, to determine what degree of authority amounts to significant authority. Regardless, they are consistent with the view that significant authority is the power to create or determine a legal obligation. Specifically, under these factors, a court considers “the significance of the matters resolved by the official”; the “discretion” exercised by that person in reaching that decision; and the “finality” of the decision. All three factors must be met for there to be an exercise of significant authority.
First, as applied by the D.C. Circuit, a matter is significant if it actually creates or determines a legal obligation. Thus, in one case, the D.C. Circuit called an IRS determination of a person’s tax liability “substantively significant enough.” In another case, the court treated an arbitrator’s decision to establish metrics that would “immediately impact the freight railroads [legal] obligations” to Amtrak—essentially creating a new legal requirement—as significant.
What both cases share is that the consequence of the would-be officer’s decision was the determination or creation of a legal obligation. In the former case, the IRS determined the person’s tax liability. In the latter case, the arbitrator essentially created an obligation to amend statutorily-mandated agreements between Amtrak and freight railroad operators.
Second, the discretion and the finality prongs of the D.C. Circuit’s test recognize that it matters what or who is really creating or determining the legal obligation. For instance, if constraints on an employee’s decision making allow for no discretion, that particular employee really makes no decision. In that case, the person is performing a ministerial action, not exercising any authority. In short, when external constraints allow for no discretion, it is those constraints—really, and importantly, the person who imposed those constraints in the first place—that actually create the legal obligation, not the employee.
Similarly, if an employee’s decision must be ratified by a higher authority, the employee’s decision is actually a recommendation. A recommendation—even one generally followed—does not create or determine anything at all; and if the higher-level official rejects the recommendation, there is no legal obligation. Rather, it is that higher authority’s decision to accept the recommendation that turns the recommendation into a legal obligation
In sum, a person must be appointed an officer if that person holds an office “established by Law” in which the person exercises “significant authority pursuant to the laws of the United States.” Such authority is the power to create or determine a legal obligation, which is precisely the scope of an officer’s authority over military subordinates.
B. Significant Authority and the Military Officer
An officer of the armed forces exercises authority over subordinate members of the armed forces by creating legal obligations. Those legal obligations are simply called “command[s].” Their significance is reflected in the maximum penalty for disobeying them, which is quite harsh: among other things, five years’ confinement or, in time of war, even death.
This section proceeds in two parts. First, it discusses the UCMJ article that enforces compliance with a superior officer’s commands. It will argue that under that article, the enforceability of a command does not turn on the command’s but-for cause. Thus, an otherwise lawful command that is issued at a civilian employee’s request is an enforceable command under the statute. Second, the section applies the Appointment Clause to that authority, and it ultimately concludes that only a properly-appointed officer may, consistent with the Constitution, issue, or be the source of, a command.
1. Article 90, UCMJ: Statutory Authority to Issue Commands
“It is the primary business of armies and navies to fight or [be] ready to fight wars should the occasion arise.” “To prepare for and perform [this] vital role, the military must insist upon a respect for duty and a discipline without counterpart in civilian life.” Indeed, “to accomplish its mission, the military must foster instinctive obedience, unity, commitment, and esprit de corps.” “There must be a first instinct to obey orders if the military is to function,” and this instinct must be honed in peacetime and wartime, as “conduct in combat inevitably reflects the training that precedes combat.”
“[C]enturies of experience,” so says the Supreme Court, has “developed [this] hierarchical structure of discipline and obedience to command.” It is, therefore, perhaps not surprising that much of the UCMJ is concerned with ensuring just such discipline. Indeed, there are punitive articles in the Code that prohibit just about everything from contemptuous words to malingering to disrespect and dereliction.
Of primary concern here are those articles that prohibit the disobedience of orders. There are three relevant articles that concern disobedience. Of those three, the one at issue here specifically is Article 90, which provides that any person subject to the UCMJ:
who willfully disobeys a lawful command of that person’s superior commissioned officer; shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct; and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.
The penalty for disobeying a lawful command is significant: in a time other than war, it carries a maximum penalty of dishonorable discharge, forfeiture of all pay and allowances, and five years’ confinement; in a time of war, the penalty borders on draconian: “Death or such other punishment as a court-martial may direct.”
The “essential attributes” of a lawful command are the “communication of words that express a specific mandate to do or not to do a specific act” that is “issu[ed] by competent authority” when there is a “relationship [between] the mandate [and] a military duty.” For the purpose of Article 90, that competent authority is a “superior commissioned officer,” who may be a commissioned officer or a commissioned warrant officer. That officer is superior when senior “in rank or command” to the command’s recipient. Rank is the “order of precedence among members of the armed forces” and is, for the commissioned officer corps, established by statute: General is at the top, second lieutenant is on the bottom, and the rest of the ranks are ordered sequentially between the two. Command is the “authority to direct and control the conduct and duties of a person subject to the Code,” and a commander is a “commissioned or [warrant officer] who, by virtue of grade and assignment, exercises primary command authority over a military organization . . . that under pertinent official directives is recognized as a ‘command.’”
Even if issued by a competent authority, only a lawful command may be enforced. That truism, however, comes with an important caveat: a command carries the presumption of lawfulness. As the U.S. Court of Appeals for the Armed Forces (CAAF) has noted, it “[l]ong ago . . . recognized the foundational principle of military discipline: Fundamental to an effective armed force is the obligation of obedience to lawful orders.” “Reflecting the authority of this principle,” a service member who challenges the lawfulness of a command “bears the burden of rebutting that presumption.” In short, any command “is disobeyed at the peril of the subordinate” service member.
Further, that peril is heightened by the broad array of potential areas that are subject to military control. A command is lawful if it has “a valid military purpose” (and is “clear, specific, and narrowly drawn”). A valid military purpose is one that “relate[s] to military duty.” And military duty is a broad term. The Manual for Courts-Martial states that it includes “all activities” that are “reasonably necessary to accomplish a military mission . . . .” In some circumstances, that could be quite the list.
To be sure, despite the broadness of the term, it is also not without limits. First, a command cannot mandate an act that is prohibited by law—arguably the very essence of unlawfulness. Second, a command cannot conflict with the recipient’s constitutional and statutory rights although such rights may apply differently to that service member—that is, to a lesser extent—than to a civilian. Third, “its sole object [cannot be] the attainment of some private end . . . .” Fourth, a command cannot be issued “for the sole purpose of increasing the penalty . . . ” for the disobedience of some other duty. Finally, the command must be clear, that is, it “must be worded so as to make it specific, definite, and certain,” or to put it another way, it cannot be void for vagueness.
2. Commands Issued for Another are Still Commands under Article 90
But what if an officer issued a command because his civilian-employee supervisor told him to do so? Is that still a command under Article 90? The short answer is also “yes.” To establish this, recall the hypothetical: the deputy to the commander, a civilian employee in a GS-15 position, asked a lieutenant colonel staff section head to have a captain present the deputy with a briefing on one of the captain’s projects the following morning. The captain failed to comply. In this case, the captain violated Article 90, UCMJ.
First, a competent authority issued the command. The lieutenant colonel was superior to the captain, who is not a commander, in rank, and therefore, the captain’s superior commissioned officer. When the command was received, the captain also knew that his supervisor was such an officer because he knew that the lieutenant colonel was, in fact, a lieutenant colonel.
Second, the command was lawful. As an initial matter, it is difficult to imagine a more routine military duty than to give a status briefing on an official tasking. Setting that aside, regular briefings on an ongoing mission is a key requirement for coordination within and across organizations, which is necessary for mission accomplishment. Further, the order required the commission of no crime, and it is neither designed to achieve a purely personal purpose nor does it conflict within the recipient’s constitutional or statutory rights. Finally, a command to present a briefing at a specific time and specific place on a specific subject is about as clear as a command can get. The captain’s reason why he disobeyed—what one could call his motive—does not really matter, but remember, it was for as poor of reason as the command was mundane: he just did not want to give the briefing. As a consequence, by not complying with the command, the captain “willfully disobeyed” it and, therefore, violated Article 90.
A command’s ultimate source is—and generally cannot be—a barrier to enforcing that command. To borrow an example from mythology, there is nothing in Article 90, UCMJ, that requires commands to, like Athena from Zeus, spring wholly formed from the head of the issuing officer. Indeed, it is difficult to imagine how that could be a requirement. Military officers must coordinate with and among each other and with other agencies and organizations. As a consequence, the officer’s decision to issue the command may not be that command’s but-for cause.
Two examples from case law illustrate this point. First, in United States v. Kisala, the CAAF affirmed a Fort Bragg-assigned Soldier’s conviction for disobeying his battalion commander’s August 2000 command to receive the anthrax vaccine. Although these facts are not specifically addressed in the court’s opinion, a Defense Department-wide vaccine effort began in March 1998, with “early deploying forces” receiving their vaccines between January 2000 and January 2004. As a consequence, it was probably not the battalion commander’s idea to mandate the vaccine; it was likely the Secretary of Defense’s. In other words, but-for the Secretary’s vaccination program, it is unlikely that the command in Kisala would have been issued; yet, the command was enforced just the same.
Similarly, in United States v. Womack, the accused was convicted under Article 90, UCMJ, for violating his commander’s “safe sex” command despite the fact that the command was issued “[i]n accordance with Air Force policy.” There is no indication that without the policy, the command would otherwise have been given. Thus, the command’s but-for cause was that Air Force policy, but it too was enforced.
But did the captain not have a pre-existing duty—arising from somewhere—to obey the civilian supervisor? It is true that until relatively recently, an order to perform a preexisting duty was unenforceable under Article 90 because the “ultimate offense” was really the breach of that duty. That said, this doctrine did not apply to a command to perform that duty if the issuing officer used “the full authority of his office” to “lift [it] above the common ruck.” Unless the officer did so, however, the Soldier committed no violation of Article 90, UCMJ. This doctrine has been narrowed, however. It now applies only to those circumstances in which a command is given “solely to improperly escalate the punishment” for “an offense which it is expected the accused may commit.”
Yet, this now-narrowed doctrine is also no bar to the enforcement of an otherwise lawful command issued by a military officer at the behest of that officer’s civilian supervisor. Assume for argument’s sake that such a duty exists and that, therefore, the disobedience of a civilian employee’s instruction is by itself some sort of an offense. Even so, in the hypothetical, the lieutenant colonel did not give the command solely to escalate any punishment the captain may have faced for disobeying the deputy to the commander. Indeed, there was no reason for the lieutenant colonel to even consider punishment—escalating it or otherwise—because the captain simply gave no indication that he was going to disobey the command. Instead, the lieutenant colonel gave the command for a far more simple, if common, reason: namely, to ensure that the boss—the civilian deputy—received the briefing that the deputy wanted.
In sum, a superior commissioned officer’s command—provided that it is otherwise lawful—is enforceable under Article 90, UCMJ, even if the command’s but-for cause was that officer’s civilian supervisor’s instruction.
C. Commands Create Legal Obligations—and Reflect Significant Authority
Put together, the issuance of a lawful command creates a legal obligation. Specifically, the obligation is to do or not to do whatever it is that the command requires. The legal nature of that obligation is evidenced by the substantial legal penalty for disobeying it. Thus, the power to issue a command under Article 90 is the exercise of significant authority.
This is true under the D.C. Circuit’s three-factor analysis. The very nature of the term military duty allows the issuing officer substantial discretion in crafting a command, which is, by its penalty, significant. Second, the command is effective, and the legal obligation is created, upon issuance. An officer generally needs no one’s permission to issue a command, and a command is binding when given even if the command’s deadline may be in the future. An officer’s decision to create the legal obligation is, therefore, final.
Thus, an officer who issues a command under Article 90, UCMJ, creates a legal obligation for the subordinate service member who receives that command. The creation of a legal obligation is the exercise of significant authority, which is reserved to officers. Consequently, under the Appointments Clause, only officers may issue commands under Article 90, UCMJ.
But in the hypothetical, it was the civilian supervisor who decided the command’s content and instructed the lieutenant colonel to issue it. Essentially, the officer was a conduit of the supervisor’s decision, or to use another term, the civilian supervisor effectively (even if not intentionally) commandeered the officer’s authority. The Appointment Clause implications of that fact are the issues to which this article turns to next.
III. Constitutionality of Civilian Supervisors Exercise of Officers’ Authority
An officer who issues a command under Article 90, UCMJ, creates a legal obligation—a power reserved to officers of the United States. As a matter of statutory construction, a command’s but-for cause is essentially irrelevant to the command’s enforceability under Article 90, UCMJ. But when the officer has effectively no choice whether to issue a command, that cause is relevant to determining who actually created the legal obligation. This section applies those principles to the deputy to the commander and concludes that the deputy’s supervision of the lieutenant colonel allows that deputy to exercise the officer’s authority in violation of the Constitution.
First, this section identifies those tools that a civilian supervisor has to ensure that a subordinate officer will obey the supervisor’s instructions generally. These tools include a general supervisory authority; the right to evaluate the officer, which includes an ability to substantially reduce the likelihood that the officer can remain in the service; and the power to relieve an officer from that officer’s current position. Second, it considers whether these tools allow the civilian supervisor sufficient control over the officer that it is the civilian—not the officer—who really creates the legal obligation. Finding that such tools do allow the civilian supervisor sufficient control, this section concludes that, as a consequence, this organizational arrangement violates the Appointments Clause.
A. A Supervisor’s Tools
A civilian supervisor has a number of tools that allow her to exercise authority over her military subordinates. These tools can be divided into three broad categories: the power to supervise, the power to evaluate, and the power to relieve. Together, these tools allow a supervisor a substantial degree of control.
As an initial matter, it is important to note that missing among those tools is a significant one that is available to the supervisor’s military counterparts. Under Article 90, the civilian supervisor cannot issue, in the supervisor’s own name, a lawful command. Specifically, a “superior commissioned officer” must be, at the least, “a commissioned officer.” A civilian employee who has not been “[c]ommission[ed] [an] Officer of the United States” is not, and cannot be, such an officer. In addition, even if the employee’s status as a non-officer is ignored, the employee lacks both rank and command—the two qualifications that make a commissioned officer a “superior” commissioned officer. Thus, a civilian employee cannot satisfy the statutory definition of superior commissioned officer.
That said, even most civilians who have been commissioned civil officers of the United States—and are, therefore, not employees in the constitutional sense—also probably do not meet that definition. A superior commissioned officer may be superior in “rank” or “command.” For the purpose of Title 10 of the United States Code, which includes the UCMJ, rank is “the order of precedence among members of the armed forces.” In turn, section 741 establishes that order among the officer corps. Even assuming for argument’s sake that a civilian officer is a member of the armed forces, there is no mention of a civil officer in that section. In short, a civil officer—like a civilian employee—has no rank.
The issue of command is more complicated. A civilian officer—again, not a civilian employee—may meet the UCMJ’s somewhat restrictive definition of a commander. But an Army regulation states bluntly that: “A civilian, other than the President as Commander-in-Chief (or National Command Authority), may not exercise command.” Thus, other than the President and, perhaps, a few other high-level positions, a civilian officer, who has no rank, also cannot exercise command—and cannot meet Article 90’s definition of superior commissioned officer. Yet, even without this (admittedly quite) substantial tool, the civilian supervisor has other tools to enforce compliance.
1. The General Supervisory Power
The general supervisory power may be the least impressive legally, but in practice, it probably carries the greatest weight. A civilian supervisor is just that, the supervisor. The day-to-day practical authority to direct subordinate officers is a significant source of that civilian supervisor’s control. Put simply, if an officer’s designated boss tells the officer to do something and that something is not illegal or inappropriate—like tell your subordinate to give the boss a briefing—the common, everyday expectation is that the officer will do it.
In addition, there may be no Army regulation that states expressly the authority of an employee supervisor over an officer. Yet, there are a number of publications, including regulations that imply that authority. Those regulations shape the practical scope of the civilian employee’s authority over his subordinates.
First, as discussed in greater length below, a civilian supervisor may rate—that is, serve as the evaluator of—an officer. But just like when one Soldier serves as another Soldier’s rater, a civilian employee may only serve as the officer’s rater if that civilian employee is responsible for “directing and assessing”—that is, supervising—the officer’s performance. By authorizing a civilian employee to rate an officer only when that employee can direct that officer, the Army implicitly recognizes the existence of such authority—and in the regulation, it communicates that recognition to its officers.
Moreover, in a number of contexts, the Defense Department has promulgated equivalency charts between officer and civilian pay grades. To be sure, these regulations do not purport to—if for no other reason than because, as discussed, they cannot—grant civilian employees equal authority to the equivalent officer grades. Regardless, the existence of the equivalency charts implies at least a degree of authority associated with the civilian grades—an implication that is strengthened when such an employee is assigned as an officer’s supervisor.
A civilian employee may serve as an Army officer’s rater or the senior rater. A rater and senior rater are nothing more than evaluators. Although the two roles are similar in purpose, they are different in function: The rater is the officer’s “immediate supervisor,” who is, as noted above, “responsible for directing and assessing the rated Soldier’s performance.” As a rater, the supervisor provides “an objective and comprehensive evaluation of the rated Soldier’s performance . . . on the evaluation report.” The senior rater is generally the “immediate supervisor of the rater.” Based on the senior rater’s “position and experience,” a senior rater “evaluate[s] the rated Soldier’s performance and/or potential within a broad organizational framework.” The senior rater’s evaluation has a particular impact on the rated officer’s career, as that “evaluation is the link between the day-to-day observation” of the officer “and the longer-term evaluation of the rated Soldier’s potential by [promotion] selection boards.”
Civilian employees may serve as an officer’s rater or senior rater or both. Specifically, any civilian employee—no matter that employee’s grade—may rate an officer provided that the employee is the officer’s “immediate supervisor” for at least 90 days before issuing the evaluation. There is a pay-grade requirement for a civilian employee to be an officer’s senior rater, and the senior rater must also be “a designated supervisor.”
The evaluations process plays a key role in determining whether an officer’s career advances, slows, or even ends. Evaluations are placed in an officer’s official record, and they are subsequently reviewed by selection boards that are considering whether to recommend the officer for promotion or retention. Of course, an officer in the grade of major or below who fails to be selected for promotion is subject to a mandatory discharge unless specifically continued on active duty.
Finally, a civilian supervisor who is an officer’s rater or senior rater has the authority to relieve that officer from the officer’s current assignment. A relief is an “early release” from “a specific duty or assignment” that is “based on a decision that the officer has failed in his or her performance of duty.” It is, in short, the military’s version of being fired from a specific assignment. For that fairly obvious reason, a relief for cause is an adverse act.
To be sure, a relief does not automatically, or even immediately, result in an officer’s discharge. That said, by regulation, any officer who is relieved must be considered for discharge from the service. Regardless, because of its impact on the officer’s potential for promotion—namely, it generally nullifies that potential—it effectively ends the officer’s career.
B. These Tools Allow a Supervisor to Exercise a Subordinate’s Authority
Standing alone, these tools are not unusual—a civilian supervisor has similar tools for her civilian employees. The Appointments Clause implications arise from the fact that these tools—by design—give the supervisor actual authority over, and the consequent ability to control, the officer. Specifically, because of that authority, when a civilian supervisor instructs a subordinate officer to issue a command, the officer lacks any real choice in whether to give it; the supervisor’s decision is effectively final. Indeed, much like when a court’s clerk issues the court’s judgment, the officer is essentially memorializing the supervisor’s decision as a command. As such, the officer’s issuance of the command amounts to a ministerial act. It is the employee who really creates the recipient’s legal obligation.
To illustrate this, consider what would happen if, in the hypothetical, the lieutenant colonel refused to issue the command. As noted, the command itself is not illegal, and there is nothing immoral or unethical about it. There is no apparent reason why the officer would be justified in refusing, and if the officer did so without a reason, the officer failed to perform an assigned task. That failure could be reflected in a worse evaluation—jeopardizing the officer’s chances for promotion—or the officer could, at least in theory, be relieved.
Put another way, what can the civilian employee do if the officer refuses to issue the supervisor’s command? Nearly exactly what a judge can do to a clerk who refuses to issue a judgment or even a president can do to a cabinet officer who will not put into effect the president’s decision; namely, that supervisor can fire the officer.
Fundamentally, “[t]he power to remove is the power to control.” As the Supreme Court put it, “[i]t is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will.” Indeed, “[o]nce an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey.”
As a consequence, the civilian supervisor’s power to relieve the officer is, in the Supreme Court’s words, “a powerful tool for control of that officer.” The power is so poignant that it need not be actually exercised to be effective: as one court put it, “the mere existence of removal authority is likely to influence behavior.” Indeed, if federal judges must be constitutionally protected from removal to protect their independence, it makes sense that officers subject to removal would not be independent—at least not independent enough—of the person who can do the removing.
The fact that an officer who violates a civilian supervisor’s instruction, including an instruction to issue a subordinate a command, faces no criminal liability—unlike a subordinate service member’s disobedience of the officer’s command—does not change this analysis. Article 90, UCMJ, is unique to the armed forces. No other executive-branch officer has that particular authority, and the potential for criminal liability cannot, therefore, be a requirement for one officer to effectively control another officer’s actions. If it were, few civil officers would be under a superior officer’s control, and thus, few would qualify as an inferior officer within the meaning of the Appointments Clause.
An illustrative, and relatively recent, example arising from another executive-branch agency helps illuminate this point. As an initial matter, executive-branch authorities are often vested in executive-branch officers below the President, including authorities related to immigration; and yet, the President exercises those officer’s authorities. For instance, in November 2014, President Obama announced an immigration policy in which certain categories of immigrants would be permitted to “apply to stay in this country temporarily without fear of deportation.” That same day, the Secretary of Homeland Security issued a memorandum implementing that decision. In other words, it was the Secretary who actually put into effect the President’s decision.
But had the Secretary failed to obey the President, the Secretary would have likely committed no crime. Indeed, cabinet officers do, occasionally, decline presidential directives. In that case, the President’s recourse is simple: fire the secretary.
To be sure, the President and a cabinet officer are at a higher level than the civilian supervisor and a military officer, but the underlying rationale holds true even for less lofty positions. The civilian supervisor of a military officer is empowered to direct the officer in the performance of her duties, evaluate the officer, and even remove that officer from her current assignment, effectively ending her career. This is not “practical authority”; it is actual authority over the officer. Thus, if the civilian employee tells a subordinate officer to give a command, the officer has no real choice, but to do so.
To be sure, it may well be that a Soldier who disobeys an officer’s command that was issued at the direction of a civilian supervisor will never be criminally punished for that offense. The civilian supervisor may not even want the Soldier to be punished. It may be that, in most circumstances, this is treated as simply a leadership challenge, which is what it would have been had the Soldier disobeyed the civilian supervisor directly. It could be argued, consequently, that the Article 90 authority here is really illusory.
That argument, however, misses the point. As an initial matter, while a civilian supervisor’s opinion on punishment may be given great weight, the decision rests with the Soldier’s commander. More importantly, a decision not to prosecute does not mean that there was no crime. A crime is complete “[w]hen it is committed” at which point “the party is guilty,” and is, therefore, “subject to criminal prosecution.” In the hypothetical, the crime was complete when CPT Snuffy disobeyed his superior officer’s command.
As a consequence, even if not by intent, the hypothetical’s civilian deputy commandeered the lieutenant colonel’s authority. Specifically, the civilian deputy’s instruction was transformed into a legal obligation because that officer issued it, and that officer had no effective choice, but to give the command. Indeed, the command’s specific content was determined by the civilian supervisor’s instruction. Other than the deputy’s instruction, there was no reason for the lieutenant colonel to issue this command; after all, he did not want the briefing. Put another way, the legal obligation at issue here was decided finally not by the commissioned officer, but by the civilian employee. Thus, the civilian employee exercised significant authority pursuant to the laws of the United States—in violation of its Constitution.
The exercise of significant authority on behalf of the United States is reserved to officers of the United States. Civilian employee supervisors of military officers are able to exercise that authority by directing their subordinate officers to issue commands to more junior Soldiers. As a consequence, it is the civilian employee’s authority to require a subordinate officer to exercise her statutory power that creates the Appointments Clause violation.
Setting aside the possibility that the Constitution could be amended to remove the Appointments Clause, this raises three potential solutions. First, transform the employee into an officer by appointing that employee consistent with the clause, something that would likely require legislation. Second, restrict the employee’s power to issue such a direction. That restriction, however, likely turns the supervisor into a supervisor in name only.
That leaves the third potential solution: remove civilian employees from chains of supervision in circumstances in which the officers that they lead supervise other more junior Soldiers. This third option is likely disruptive over the near and mid-terms; it also restricts how an armed force is organized. But it can be implemented locally—no need for Congress to act—and it solves entirely the Appointments Clause issue. Most importantly, from a policy perspective and unlike the other two options, this option aligns authority with accountability, and it is more consistent with the statutory duties and responsibilities of the officer corps.
There is one additional potential resolution that should be discussed before addressing the other three—specifically, do nothing at all. In this case, if a Soldier disobeys an officer’s command and if that command was issued at the behest of that officer’s civilian supervisor and if the Soldier is punished for that disobedience—a substantial number of contingencies—the Soldier is free to argue that the command was unconstitutional.
This solution should fail for a simple reason: the constitutional violation remains uncured. But if that is not enough of a justification, it fails for three other reasons too. First, a command is presumed lawful and disobeyed at the “peril” of the subordinate service member, who bears the burden of rebutting that presumption. This wait-and-see-if-this-is-really-an-issue solution requires the service member to bear that burden, and practically, the service member would require evidence of the ultimate source of the command—something that may well be hard to come by—to even try and make the case that the supervisory arrangement giving rise to the command made the command unlawful. Second, the service member needs a forum to hear the challenge, and that requires the service member to disobey the command, court punishment, and then hope that the punishment will be imposed before a forum that can act on the constitutional challenge. Those are no small risks. Third, this solution threatens good order and discipline. Commands that otherwise seek the same (lawful) objects and are issued by the same officer are sometimes enforceable and sometimes not based on the degree of a civilian supervisor’s involvement. Discipline requires a culture of obedience, and this fluidity of enforceability threatens that culture.
A. Appoint as Officers
As an initial matter, civilian supervisors could be appointed as officers of the United States. This would likely require a statutory change to specifically provide for such appointments. Much like their military counterparts, such civilian-employees-turned-officers would likely be inferior officers under the Appointments Clause. Consequently, if the Congress approved, the appointment power could be vested in the President or the Secretary of Defense.
This would likely solve the Appointments Clause issue, but it creates additional issues. First it is not clear that the Congress will so approve. Without statutory authorization, “[t]he prescribed manner of appointment for principal officers is also the default manner of appointment for inferior officers,” that is, Senate confirmation. Second, a civilian employee may generally be hired by a member of the uniformed service or by another employee, but an inferior officer may only be appointed by a constitutional appointment authority. In other words, this option takes a relatively straightforward process to hire a civilian employee and makes it more complicated and, consequently, resource consuming.
B. Restrict the Power of Civilian Employee Supervisors
If appointing civilian supervisors as officers is impracticable, a second option is to restrict by regulation the authority of those supervisors. The Secretary of the Army likely has the authority to enact such a regulation. Further, the D.C. Circuit has relied on, in the past, regulatory restrictions on an employee’s authority to conclude that the employee did not exercise significant authority, at least where the restrictions were real. The greater the restrictions on a civilian supervisor’s exercise of the tools identified above, the greater the likelihood that they do not exercise significant authority.
These restrictions could take two forms. First, in principle, a regulation could prevent the supervisor from issuing an authoritative direction to a subordinate officer that requires that officer to issue a command to other service members. In practice, though, it would strip the civilian supervisor of the ability to supervise subordinate elements headed by an officer. At the very least, it would make it difficult for that deputy to coordinate all the sections.
Second, a civilian employee could be prohibited from rating and relieving a military officer. Such a role could be assigned to another officer, much like the current requirement for a supplementary review if there is no military officer in a rating chain. This is relatively easy to implement, as it does not require defining a standard by which some of a supervisor’s directions are relayed, but not others. Further, it preserves a degree of control, as the supervisor could recommend an evaluation to the actual rater or senior rater even though the civilian supervisor would not be the one who issues that evaluation.
Of course, a supervisor who does not evaluate an officer is not really that officer’s supervisor—at least not the officer’s only supervisor because to be the officer’s rater, the person must be a supervisor of the officer. Under Army regulations, an officer is also entitled to meet with her actual rater and senior rater, and even if the civilian supervisor is allowed input on the evaluation, it is likely that the officer will be more responsive to her actual rater and senior rater than to her civilian supervisor. As a consequence, this is not an ideal solution either.
C. Remove Civilian Employees as Supervisors
As a final option, the Appointment Clause issue can be eliminated by ending the practice of assigning civilian employees as the supervisors of military officers in circumstances in which those officers supervise other service members. This would resolve the Appointments Clause issue entirely.
It bears repeating that this option does not eliminate all civilian-supervisor positions. As discussed at length, the Appointment Clause issue arises when a civilian supervisor can commandeer a military officer’s authority. For instance, a civilian supervisor of a military officer who has no military subordinates likely cannot commandeer that officer’s authority. It is also undoubtedly true that an officer in certain assignments may perform only duties that also could be performed by an employee. In these cases, a civilian employee likely may supervise the officer.
Further, this solution better aligns authority with accountability. When a civilian employee acts in the role of deputy to the commander, there is a mismatch between that supervisor’s authority and the supervisor’s accountability that simply is not present when one civilian employee supervises another civilian employee. This mismatch arises from the fact that the rights and obligations of supervising military officers and their subordinate Soldiers differ from that of supervising civilian employees and their subordinate civilian employees.
From the perspective of the rights of a subordinate, a civilian employee has a considerably larger array of options to respond to bad leadership than a Soldier does. Two of those options illustrate the point. First, a civilian employee has a rather basic option that a Soldier lacks: the civilian employee can quit; the Soldier cannot. Second, a civilian employee can, in certain circumstances, sue the government for tort and discrimination-related claims. A Soldier is generally barred from suing the government under the Feres doctrine.
From the perspective of supervisor accountability, officers face an equally large array of accountability measures that civilian supervisors do not, including criminal liability. The list of potential criminal violations arising from an abuse of authority is impressive. An officer can be tried by court-martial for, among other things, dereliction of duty, cruelty and maltreatment, conduct unbecoming an officer and a gentlemen, and, of course, acts or omission that are either prejudicial to good order and discipline or service discrediting. Yet absent an unusual set of circumstance, a civilian supervisor cannot be tried by court-martial at all. Further, an attempt to create a civilian equivalent for some of these offenses that could be tried before a civilian court may well be found to be unconstitutional.
To be sure, both the military officer and the civilian supervisor face the possibility of being fired for the same bad acts. For the supervisor, this is likely the harshest sanction that can be levied in most circumstances. But here, too, there are significant differences. A non-probationary employee is entitled to appeal that employee’s termination to the Merit Systems Protection Board, which is, as noted by the Supreme Court, “an independent adjudicator of federal employment disputes.” An officer facing elimination has no such recourse: the decision to eliminate the officer is, for the most part, made internal to the service.
In short, there is a difference between Soldiers and employees, and between officers and civilian-employee supervisors. That difference is manifest in each party’s respective rights and obligations. Removing the position of civilian deputy to the commander resolves the Appointments Clause issue, and it also recognizes those real differences in both authority and accountability.
The Appointments Clause is “among the significant structural safeguards” of the Constitution. Fundamental to the clause—and the Constitution itself—is the issue of who decides. As one court put it, “among the framer’s chief concerns . . . were questions of who should be permitted to exercise the awesome and coercive power of the government.” An officer’s command under Article 90, UCMJ, is the exercise of just such an “awesome and coercive power of the government.” Indeed, as the Court of Military Appeals noted, “The force of an order by a superior officer can hardly be equated to a moral sanction. On the contrary, it is a tremendously powerful force in military law. In time of war, a willful refusal to obey is punishable by death.” Yet, in some circumstances—such as when an officer has a civilian supervisor and military subordinates—someone who is not appointed in accordance with the clause has that authority. That transgresses the Constitution.
Ultimately, every officer and employee swears an oath to support and defend the Constitution. The fact that an organizational structure violates the Constitution should be enough reason to change that structure. But if it is not, this should be: authority and accountability are really two parts of the same concept. An officer has substantial authority, but can be held accountable for the misuse of that authority in equal measure, including by criminal sanction. If there is an axiom here, it is this: one should not exercise power if one is not held commensurately accountable for it. As a consequence, the solution to the “Deputy To[o] problem” is simple in description, yet complex in execution: elimination.
Appendix A: Organizational Structure