by Wyatt Suling, MPA '23 for Annotations Blog
Since the United States is a democracy with a standing army, rigorous civilian control and both the perception and reality of non-partisan professionalism in the military are vital. These qualities prevent domestic political concerns from detracting from the military’s efforts to address external threats and in turn ensures the military does not warp domestic politics. However, over the last several decades, multiple aspects of civil-military relations have seen serious decline, leading many scholars and policymakers to look for ways to stem the bleeding.
Confidence in the military has diverged across partisan lines and fluctuates based on whether the President is from the same party rather than remaining stable across administrations. Military officers have increasingly claimed affiliation with political parties and retired flag officers now use their military cache to endorse political candidates in inflammatory ways. Perceptions and manifestations of partisanship in the military have increased over the past several decades while political civilian leaders have challenged long-held norms on leaving the military out of politics. Over 60 percent of survey respondents chalked their declining respect for the military up to “military leadership becoming overly politicized,” a bipartisan finding. In the summer of 2020, President Trump sought to use the presence of the Chairman of the Joint Chiefs of Staff at Lafayette Square for his political benefit. Smaller examples of transgressions abound, such as waivers for former flag officers to serve as Secretary of Defense being approved for both Presidents Trump and Biden, a subversion of the principle of civilian leadership of the military.
As policymakers seek to mitigate threats to civil-military relations, one phenomenon that should be addressed is that of members of Congress serving in the National Guard or Reserves. Under current policy, individuals may continue to serve as a guardsman or reservist while holding office in Congress, provided they are not ordered to active duty more than 270 consecutive days. Several members have taken advantage of this in recent years, such as Adam Kinzinger (a member of the Wisconsin Air National Guard) and Tulsi Gabbard (first a member of the Hawaii National Guard and now the Army Reserve). Representative Kinzinger was one of the most outspoken members of Congress in denouncing then-President and Commander in Chief Trump while Gabbard visited Syrian President Bashar al-Assad and ran for president in 2020 when serving as a major in the Hawaii National Guard.
These arrangements are likely unconstitutional, risk subverting the separation of powers between the legislative and executive branches, and pose an acute partisan risk to the military as an institution. While all members of the National Guard and Reserves must navigate complex interactions between their military and civilian roles, the inherently partisan nature of Congress and its institutional relationship with the military make these dual-hatted members of Congress an unnecessary risk to civil-military relations. Therefore, members of the National Guard and Reserves should be required to suspend their service in the military along with any related benefits upon winning an election for a seat in the United States Congress.
The first concern with members of Congress serving in the National Guard or Reserves is the practice’s constitutionality. The Incompatibility Clause of the United States Constitution states that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” When the seventh Congress first enforced the Incompatibility Clause in forcing out Representative John Van Ness for taking a position in the militia, it was explicitly designed to “exclude even the shadow of Executive influence.” However, the judiciary has never resolved whether a position in the Reserves or modern-day National Guard qualifies as an “Office under the United States.” Schlesinger v. Reservists Committee to Stop the War challenged the practice in 1973 and the U.S. Circuit Court of Appeals for the District of Columbia ruled the practice unconstitutional. Unfortunately, the Supreme Court reversed the decision and dismissed the case for a lack of standing by the complainant since the injury alleged was “abstract, speculative, and generalized” due to its preemptive nature. However, judicial silence on the matter does not alleviate the underlying problems of the practice. Failure to enforce the Incompatibility Clause subverts one of the foundational principles of the Constitution, the separation of powers.
Weakening the Separation of Powers
The second and chief theoretical concern with dual service in Congress and the National Guard or Reserves is that of undue executive influence over the legislative branch. The separation of powers is fundamental to the United States’ structure of government, but simultaneous service in Congress and the National Guard or Reserves degrades this principle by providing the executive branch both positive and negative individualized leverage over members of Congress through their military benefits or obligations.
In Schlesinger v. Reservists Committee to Stop the War, the government argued that reservists’ limited contact with the military posed little risk of “domination and corruption of the legislative branch,” but this ignores both the obligations and benefits of service in the National Guard or Reserves. Under Department of Defense (DOD) Directive 1344.10, if a member of Congress in the Reserves was called to active duty for longer than 270 days and cannot secure a release from the appropriate Service Secretary, he/she would be required to resign from office. While it may be extreme, consider if Representative Kinzinger were suddenly ordered to active duty the day after criticizing President Trump,or if Senator Lindsey Graham (an Air Force Reservist till 2015) were ordered on an extended deployment ahead of a tight vote on priority legislation for President Obama. There are likely dozens of other ways in which military obligations could be used to hamper the legislative duties of dual-hatted members of Congress.
Conversely, the military can be used to positively influence members of Congress. Representative, and later Senator, Graham was promoted to lieutenant colonel and then colonel despite training less than two days per year, assigned an instructor role that he never served in, and allowed short deployments to Iraq that required waivers of standing policy. The Washington Post stated that “other uniformed lawyers said Graham’s [instructor role] was widely perceived as a no-show job granted to a politician with whom the Air Force brass was eager to curry favor.” The possibility that the military could grant privileges to its reservists to earn the support of members of Congress is extremely problematic, even if merely a perception. Examples like that of Lindsey Graham show how the military can easily become involved in partisan politics. Even if the executive resists the temptation of these actions, the members of Congress themselves can threaten the nonpartisan reputation of the military.
Acute Partisan Institutional Risk
The third concern with members of Congress serving in the National Guard or Reserves is that their actions are inherently partisan and high-profile, creating an acute risk of degrading the military’s already damaged nonpartisan reputation. While DOD policies restrict how a candidate or office holder may use their military status, such use is not barred completely. Images of and references to military service often appear on the websites of members who routinely criticize the military, its chain of command (particularly the president), and the nation’s foreign policy as part of their legislative role.
The past several years have shown that we cannot solely rely on norms, discretion, and professionalism to overcome institutional risks.
In a 2017 article, John Amble defends the practice of members of Congress serving in the National Guard or Reserves by arguing that many of the difficult power and partisan dynamics involved affect all guardsmen and reservists to some extent and that military policies must be balanced with civilian concerns like political participation. However, his key strategy for mitigating harm caused by the practice is to rely on professionalism and to trust that the individuals involved will uphold standards or be held accountable. While this may be sufficient for most Reserve and National Guard members, it is idealistic and impractical to think that members of Congress can simply be managed in the same way without consequence. Upholding standards and policies requires enforcing them when they are violated, but such enforcement actions introduce only more institutional risk. Consider if a reservist member of Congress refused to be vaccinated against COVID-19 as previously required by DOD policy and the military moved to discharge them. Such an action could easily be spun as suppression of opposing views by the affected member or their allies, drawing the military even deeper into an acidic issue. The past several years have shown that we cannot solely rely on norms, discretion, and professionalism to overcome institutional risks.
For all the institutional risk incurred by allowing members of Congress to serve in the National Guard and Reserves, what benefit does the practice provide? At most, it only provides 535 additional part-time guardsmen and reservists to a force of nearly 800,000, but the reality is likely less than 20. These members are, without exception, part-time members on whom the military places little responsibility due to their limited time commitment. These members are almost never deployed and if they are, the deployments are more to the political benefit of the member than the military.
Given the likely unconstitutional nature of the practice, its subversion of the separation of powers principle, and the acute partisan institutional risk incurred for little to no military gain, members of Congress should be barred from service in the National Guard or Reserves while in office. These members’ service should be suspended rather than terminated to allow a smoother return to service following public office. However, they should receive no military pay, benefits, or promotions during their suspension to minimize avenues for executive influence. Such a policy would help to promote the institutional independence of Congress while insulating the military from unnecessary partisan risk.
Meet the Author: Wyatt Suling
Wyatt Suling is an MPA ’23 student at Princeton University’s School of Public and International Affairs studying defense planning and strategy. He is a graduate fellow on the Center for International Security Studies’ simulations team and values wargaming and simulations as both educational and analytical tools. He previously served in the Missouri Attorney General’s Office where he helped lead its sexual assault kit reform initiative and was the architect of the state’s first statewide sexual assault kit evidence tracking system. He holds a B.S. in economics and a B.A. in policy studies from Syracuse University.