ArtI.S8.C11.2.4 Care of the Armed Forces

Article I, Section 8, Clause 11:

[The Congress shall have Power . . .] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

Scope of the congressional and executive authority to prescribe the rules for the governance of the military is broad and subject to great deference by the judiciary. The Court recognizes that the military is, by necessity, a specialized society separate from civilian society, that [t]he military constitutes a specialized community governed by a separate discipline from that of the civilian, and that Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which [military society] shall be governed than it is when prescribing rules for [civilian society].1 Denying that Congress or military authorities are free to disregard the Constitution when acting in this area, 2 the Court nonetheless operates with a healthy deference to legislative and executive judgments about military affairs, 3 so that, while constitutional guarantees apply, the different character of the military community and of the military mission requires a different application of those protections.4

In reliance upon this deference to congressional judgment about the roles of the sexes in combat and the necessities of military mobilization, coupled with express congressional consideration of the precise questions, the Court sustained as constitutional the legislative judgment to provide for registration of males only for possible future conscription. 5 Emphasizing the unique, separate status of the military, the necessity to indoctrinate men in obedience and discipline, the tradition of military neutrality in political affairs, and the need to protect troop morale, the Court upheld the validity of military post regulations, backed by congressional enactments, banning speeches and demonstrations of a partisan political nature and the distribution of literature without prior approval of post headquarters, with the commander authorized to keep out only those materials that would clearly endanger the loyalty, discipline, or morale of troops on the base. 6 On the same basis, the Court rejected challenges on constitutional and statutory grounds to military regulations requiring servicemen to obtain approval from their commanders before circulating petitions on base, in the context of circulations of petitions for presentation to Congress. 7 And the statements of a military officer urging disobedience to certain orders could be punished under provisions that would have been of questionable validity in a civilian context. 8 Reciting the considerations previously detailed, the Court has refused to allow enlisted men and officers to sue to challenge or set aside military decisions and actions. 9

Congress has a plenary and exclusive power to determine the age at which a soldier or seaman shall serve, the compensation he shall be allowed, and the service to which he shall be assigned. This power may be exerted to supersede parents' control of minor sons who are needed for military service. Where the statute requiring the consent of parents for enlistment of a minor son did not permit such consent to be qualified, their attempt to impose a condition that the son carry war risk insurance for the benefit of his mother was not binding on the government. 10 Because the possession of government insurance payable to the person of his choice is calculated to enhance the morale of the serviceman, Congress may permit him to designate any beneficiary he desires, irrespective of state law, and may exempt the proceeds from the claims of creditors. 11 Likewise, Congress may bar a state from taxing the tangible, personal property of a soldier, assigned for duty in the state, but domiciled elsewhere. 12 To safeguard the health and welfare of the armed forces, Congress may authorize the suppression of bordellos in the vicinity of the places where forces are stationed. 13

Footnotes

  1.  Parker v. Levy, 417 U.S. 733, 743-52 (1974). See also Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953); Schlesinger v. Councilman, 420 U.S. 738, 746-48 (1975); Greer v. Spock, 424 U.S. 828, 837-38 (1976); Middendorf v. Henry, 425 U.S. 25, 45-46 (1976); Brown v. Glines, 444 U.S. 348, 353-58 (1980); Rostker v. Goldberg, 453 U.S. 57, 64-68 (1981).
  2.  Rostker v. Goldberg, 453 U.S. 57, 67 (1981).
  3.  453 U.S. at 66. [P]erhaps in no other area has the Court accorded Congress greater deference. Id. at 64-65. See also Gilligan v. Morgan, 413 U.S. 1, 10 (1973).
  4.  Parker v. Levy, 417 U.S. 733, 758 (1974). [T]he tests and limitations [of the Constitution] to be applied may differ because of the military context. Rostker v. Goldberg, 453 U.S. 57, 67 (1981).
  5.  Rostker v. Goldberg, 453 U.S. 57 (1981). Compare Frontiero v. Richardson, 411 U.S. 677 (1973), with Schlesinger v. Ballard, 419 U.S. 498 (1975).
  6.  Greer v. Spock, 424 U.S. 828 (1976), limiting Flower v. United States, 407 U.S. 197 (1972).
  7.  Brown v. Glines, 444 U.S. 348 (1980); Secretary of the Navy v. Huff, 444 U.S. 453 (1980). The statutory challenge was based on 10 U.S.C. § 1034, which protects the right of members of the armed forces to communicate with a Member of Congress, but which the Court interpreted narrowly.
  8.  Parker v. Levy, 417 U.S. 733 (1974).
  9.  Chappell v. Wallace, 462 U.S. 296 (1983) (enlisted men charging racial discrimination by their superiors in duty assignments and performance evaluations could not bring constitutional tort suits); United States v. Stanley, 483 U.S. 669 (1987) (officer who had been an unwitting, unconsenting subject of an Army experiment to test the effects of LSD on human subjects could not bring a constitutional tort action for damages). These considerations are also the basis of the Court's construction of the Federal Tort Claims Act as not reaching injuries arising incident to military service. Feres v. United States, 340 U.S. 135 (1950). In United States v. Johnson, 481 U.S. 681 (1987), four Justices urged reconsideration of Feres, but that has not occurred.
  10.  United States v. Williams, 302 U.S. 46 (1937). See also In re Grimley, 137 U.S. 147, 153 (1890); In re Morrissey, 137 U.S. 157 (1890).
  11.  Wissner v. Wissner, 338 U.S. 655 (1950); Ridgway v. Ridgway, 454 U.S. 46 (1981). In the absence of express congressional language, like that found in Wissner, the Court nonetheless held that a state court division under its community property system of an officer's military retirement benefits conflicted with the federal program and could not stand. McCarty v. McCarty, 453 U.S. 210 (1981). See also Porter v. Aetna Casualty Co., 370 U.S. 159 (1962) (exemption from creditors' claims of disability benefits deposited by a veteran's guardian in a savings and loan association).
  12.  Dameron v. Brodhead, 345 U.S. 322 (1953). See also California v. Buzard, 382 U.S. 386 (1966); Sullivan v. United States, 395 U.S. 169 (1969).
  13.  McKinley v. United States, 249 U.S. 397 (1919).