Lawmakers fear the military could be drawn into the politics of the 2024 election. In a recent congressional letter to the Secretary of Defense and Chairman of the Joint Chiefs of Staff, the top civilian and military leaders were reminded not to use the military illegally to carry out unlawful orders. Most members of the Profession of Arms would scoff at this notion, with something to the effect of: “We are apolitical and will know what to do when the time comes.” But will they?
Critical reflection shows that this subject is complex, making a review of the relevant authorities and norms regarding the domestic role of the U.S. military essential. Regardless of who wins the election, federal and state senior military leaders may face decision-making dilemmas critical to the future of U.S. democracy.
As outlined by the Constitution, other laws, and norms, the U.S. military is an apolitical institution and not intended to be a check on the three branches of government. Its role is to provide advice and implement the military instrument of power to support the policies established by elected leaders. Tragically, with the heightened risk of political violence in 2024 fueled by hyper-partisanship, some senior military leaders are currently having to reflect on their apolitical role within the U.S. constitutional structure.
This reflection is uncomfortable, multifaceted, and will lead to an ethical dilemma — a situation where two moral principles conflict — as following orders from the chain of command may clash with their oaths to the Constitution or personal convictions. Key considerations in this reflection include the structure of the Constitution, the norms of U.S. civil-military relations, and various laws enacted by Congress that define the domestic role of the U.S. military. These laws include the Hatch Act, the Insurrection Act, the Posse Comitatus Act, National Guard authorities, and other guidelines designed to ensure the government can “provide for the common defense” while maintaining an apolitical military. Although these frameworks might appear straightforward, they may prove quite challenging to apply in some extraordinary circumstances. Deliberate consideration of these factors is a professional duty for senior civilian and military leaders.
No Role by Design
The nation’s Founders, informed by Western thought and disillusioned by King George’s arbitrary rule, embedded provisions in the Constitution that have shaped the military’s role for over 250 years. Their beliefs centered on fears of standing armies, the need for inter-branch checks and balances, and the principle of civilian control. The resultant structure was designed to uphold democratic principles, prevent abuses of power, and ensure the military serves rather than dominates the republic. Designating the President as Commander-in-Chief, for example, institutionalized civilian control over the military. The President also possesses the authority to appoint senior military leaders, including the Joint Chiefs of Staff and Combatant Commanders. Despite challenges like General Douglas MacArthur’s insubordination during the Korean War, civilian oversight remains a cornerstone of the U.S. military.
The U.S. Congress also plays a crucial role in shaping military policy, including solidifying the principles of checks and balances to prevent executive overreach. The Constitution grants Congress several key powers: budgetary authority, the power to declare war, and the power to raise and support armies and maintain a navy. Additionally, Congress can “make Rules for the Government and Regulation of the land and naval Forces,” and “provide for calling forth the Militia.” These provisions enabled Congress to later codify the Founders’ principles into laws that define the relationship between the President and the military.
On June 1, 1789, Congress passed its first bill, Statute 1, Chapter 1, which established the oath of office for military members. Initially, both officers and enlisted personnel took the same oath. However, modifications were made during and after the Civil War, and the enlisted oath was further revised in 1962. Today, officers and enlisted personnel each take separate oaths. Of note, the National Guard’s oath includes a pledge to support the Governor and the state constitution, highlighting their role in serving both federal and state governments.
A comparison of the oaths reveals similar language and intentions, with some key differences relevant to this commentary. All three oaths pledge support and allegiance to the U.S. Constitution, not to an individual or office. However, the enlisted oath includes a commitment to obey the orders of the President and of the officers appointed over them “according to regulations and the Uniform Code of Military Justice.” In contrast, the officers’ oath omits a specific mention of obedience, and universally officers speak of an oath to the Constitution. This difference implicates military decision-making and ethical considerations, particularly when orders from civilian leaders are unlawful or unconstitutional. What’s more, these details of the oaths underscore a reference in the congressional letter to “the principle that there can only be one President at a time and that your oath to the Constitution and the chain of command require you to act on the orders of the sitting President.”
While the Constitution and the oath of office set the foundations of the U.S. military’s apolitical position, political neutrality is codified by law in the 1939 Hatch Act and enforced through DoD Directive 1344.10. These red lines create a clear separation between government functions and restricted political activities, emphasizing political neutrality within the military and guiding armed forces members’ political conduct. Together, these legal instruments help senior military leaders navigate their advisory and decision-making roles as professionals.
The United States Military as a Profession
Over time, the structure of civilian control over the military has been tested by various conflicts and societal changes but has remained crucial for preserving democratic governance. Political scientists extensively study this dynamic, under the rubric of civil-military relations, providing insights into the foundational importance of the U.S. military’s apolitical norms in a democratic society. In contrast to some countries where the military poses an internal threat, the American military’s commitment to professionalism has contributed to nearly 250 years of relative domestic stability. Key scholars such as Samuel Huntington, Peter Feaver, Eliot Cohen, and Risa Brooks have examined the maintenance and value of military professionalism and the risks of deviating from it. When navigating challenging ethical dilemmas, leaders in the Profession of Arms will stand to benefit by reflecting on this research.
Written at the start of the Cold War, a period when the United States shifted from relative isolationism to maintaining a standing army, Huntington’s The Soldier and the State remains a foundational text. Huntington argues that a professional military is vital to a democratic society, defining professionalism through expertise, corporateness, and responsibility. He contends that a professional military should remain apolitical, concentrating on its core competency of the management of violence while deferring to civilian authority on policy issues. His “objective control” model underscores the necessity of keeping a clear boundary between military and political spheres.
In contrast, Cohen, who describes Huntington’s work as the “normal” theory of civil-military relations, challenges the idea of the military as merely an implementer of civilian decisions. He advocates for a more collaborative relationship between civilian and military leaders, where military input actively shapes policy. Cohen characterizes this interaction as an “unequal dialogue,” and better reflects the evolving nature of U.S. civil-military relations.
Feaver adds depth to civ-mil theories through his application of principal-agent theory. According to Feaver, government principals can be either “intrusive or unintrusive,” while military agents can either “work or shirk.” He blandly concludes that civil-military relations are healthier with better civilian leaders, but more provocative is his conception that military officers have agency in disobeying orders. Notably, after recognizing the military’s agency, he advises that the military should oppose “bad” policies but not prevent their implementation, arguing that “in a democracy, civilians have the right to be wrong.” Feaver’s contributions emphasize the delicate balance between valuing military advice and preventing undue military influence over policy.
Finally, Brooks has expanded the debate by addressing modern challenges in civil-military relations. Her work incorporates contemporary issues such as technological advancements, legal and ethical dimensions, and the evolving nature of warfare. Furthermore, Brooks has issued stark warnings about the dangers of politicization within the U.S. military, emphasizing that increasing partisanship among military personnel could cause profound damage to national security. She also argues that many military leaders are neglecting their role in safeguarding U.S. institutions, labeling this neglect as “a luxury that the country can no longer afford.” This warning is especially pertinent for the anonymous leaders discussed in this essay.
Congress and the Limitations of the Military Domestically
Today the United States has a standing army of over one million personnel, with a total end-strength of over two million as covered in the 2025 National Defense Authorization Act (NDAA). Although many members are stationed overseas, the military’s professionalism and apolitical nature have eased concerns about maintaining a standing army at home. Additionally, certain federal statutes guide the executive branch and greatly affect military authorities. While this essay does not cover their historical contexts, identifying the relevant laws in force is important. Their layers of complexity make policy integration challenging, and attention to their legal and ethical implications is vital for civilian and military leaders alike.
Posse Comitatus and the Insurrection Act
Established in 1878 as part of a post-Civil War appropriations bill, the Posse Comitatus Act (PCA) limits the use of U.S. federal troops domestically. The Act restricts the conditions under which the executive branch can employ the military to enforce civilian laws “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Despite these restrictions, military involvement in domestic events has occurred under multiple legal exceptions.
The explicit language of the PCA acknowledges constitutional provisions and the Insurrection Act of 1807. As mentioned, the Constitution authorizes Congress to call forth the Militia (National Guard). However, in the early days of the Republic, delays in decision-making due to congressional recesses highlighted the need for more immediate action. Consequently, Congress enacted laws culminating in the Insurrection Act, which delegated these powers to the President, allowing mobilization of the armed forces without congressional approval. The statute has been invoked in response to 30 different crises, and its interpretation is increasingly scrutinized with critics and other legal experts advocating for reform to limit executive overreach. Despite ongoing debates, the Insurrection Act remains in effect and continues to pose ethical challenges. As the National Guard is usually the first military force called upon for domestic response, understanding the role of these forces is essential.
Role of the National Guard
Examining the National Guard’s structure, roles, and responsibilities sheds light on its potential domestic use, especially in Civil Disturbance Operations (CDO). The United States has 54 National Guards units, including those in Puerto Rico, Guam, the Virgin Islands, and the District of Columbia. Each unit is led by the Adjutant General (TAG) who is appointed by and reports directly to the Governor. They serve as both military advisor and operational commander for state forces. Although the National Guard is linked to the National Guard Bureau for planning, doctrine, and funding, it typically operates under State Active Duty (SAD) authority to support local and state entities. Often to train, or in response to national disasters, guard forces also are mobilized for Defense Support of Civil Authorities (DSCA). Here they are federally funded but remain under the Governor’s control in a Title 32 status. Under Title 32 and SAD, they are exempt from the PCA.
National Guard forces can also be “federalized” under Title 10 authority when “state, local, tribal, or territorial resources are overwhelmed; and federal assistance is requested.” Although Title 10 forces are generally subject to the PCA, exceptions such as the Insurrection Act allow federalization without PCA restrictions. Once federalized, command shifts from the Governor to the federal government necessitating a review of post-9/11 legislation and authorities.
Before delving into decision-making, it is important to address the unique aspects of the DC National Guard (DCNG). As Washington D.C. is not a state, command responsibilities are assigned directly to the President, with authority delegated to the Chief of Staff of the Army through the Secretary of Defense. Unlike state National Guards, the 2700-member DCNG is led by a Commanding General (appointed by the President) rather than a TAG. These distinctions are highly important, as they affect the applicability of the PCA and other authorities.
The Anonymous Leaders and Presidential Decision-Making
Although the Constitution does not define the military’s role in shaping strategy and policy, subsequent laws provide clarity. Learning from WWII and anticipating Cold War needs, Congress passed the 1947 National Security Act (NSA), which significantly restructured U.S. military and intelligence services, and established the Joint Chiefs of Staff and the Chairman position. Coupled with the 1986 Goldwater-Nichols Act (GNA) and the Homeland Security Act of 2002 (HSA), all three statutes created frameworks for integrating military and civilian advice in developing and implementing national security policy.
The 1947 legislation also established the National Security Council (NSC) to advise the President on integrating domestic, foreign, and military policies. Statutory NSC members include the Secretaries of State, Defense, Energy, and Treasury, as well as the Chairman of the Joint Chiefs of Staff. According to the 1986 GNA, the Chairman, as the senior Armed Forces member, is the principal military adviser to the President, the NSC, the Homeland Security Council, and the Secretary of Defense. While not always present, other Joint Chiefs members include the heads of the six military services and the Chief of the National Guard Bureau. The GNA specifies that the service Chiefs are responsible for organizing, training, and equipping forces for Combatant Commanders and are not in the operational Chain of Command. Alongside the NORTHCOM Commander and the 54 TAGs, these senior military leaders are currently reflecting on the subject matter of this essay to prepare for the various simmering and crisis scenarios they may encounter.
Incorporating these considerations leads to the following points:
- Checks and balances are the bedrock of our democracy. Typically, the military is not considered one of these checks. Unfortunately, in today’s environment the military (whether it likes it or not) needs to consider its role as a possible check when asked to respond to civil disobedience. General Milley seemed to understand this in his actions during the 2020-2021 transfer of power.
- Military members are trained to follow lawful orders and face penalties for disobedience. However, deciding whether to obey or shirk an order and when to engage in “strategic communications” presents complex challenges, such as loyalty, career risks, and identifying the legal boundaries of orders from a President, a Governor, or commanding officer.
- The National Guard is not as apolitical as some think as the TAG position is essentially a political appointment. This situation could raise questions about state versus federal control, creating challenging post-election scenarios.
- Congress has granted the President broad powers under the Insurrection Act, which are not restricted by the PCA. Coupled with the unique structure of the DC National Guard, this creates potential loopholes in the checks and balances system.
- While military leaders generally have strong character traits, the situational factors in Civil Disturbance Operations could complicate decision-making. The verbal expression of disobeying or challenging orders may be perceived by some as insubordination and could even raise concerns about a coup.
Conclusion: A Tough Ethical Dilemma
To conclude, this commentary explored the complex constitutional, professional, and legal considerations that both civilian and military leaders must reflect on when making decisions about domestic military use. The Joint Chiefs of Staff, along with the 54 state Adjutant Generals, represent the upper echelons of the U.S. military who interact with civilian authorities and are the anonymous leaders who may encounter ethical dilemmas during the upcoming election. As outlined in this essay, these leaders will be guided by relevant legislation, established norms of civil-military relations, and their oaths to the Constitution. These considerations often intersect and may conflict, creating a classic ethical dilemma. Although navigating these factors will be challenging, collectively they shape how these leaders provide military advice and implement executive orders.
– Paul Rasmussen is an Associate Professor with the U.S. Naval War College (NWC) at the Naval Postgraduate School (NPS) in Monterey, CA. The views presented are those of the author and do not necessarily represent the views of the Department of Defense or its components. Published courtesy of Just Security.
