Joe Biden fails to understand the Constitution on military matters

Democrats regularly charge that President Trump does not understand or respect the Constitution and the law. Indeed, just months ago, Democrats in Congress voted unanimously during his impeachment trial to remove him from office. This week, however, Joe Biden displayed a woeful lack of understanding of the most fundamental cornerstone of the Constitution, which is civilian control over the military. For all of his decades of public service as vice president and senator, Biden looks at the world through a fundamentally political rather than a constitutional lens.

The presumptive Democratic nominee criticized the recent removal by the administration of Navy Captain Brett Crozier, commander of the Theodore Roosevelt aircraft carrier. Former Acting Navy Secretary Thomas Modley, the top civilian political appointee in the Navy, removed Cozier after the leak of his email accusing Navy leaders of failing to quickly evacuate the sailors after a coronavirus outbreak aboard his ship. Biden declared that it was “close to criminal” with regard to how the Navy removed Cozier. “He should have a commendation rather than be fired,” he said, adding “poor judgment” belongs to the administration. Biden and other administration critics might be proud of themselves now that Modley has resigned over his unwise comments that attacked the ability of Cozier.

Instead, administration critics have undermined the democratic principle of civilian control of the military, which the Constitution concentrates in the executive authority to remove military officers. Prior to its ratification back in 1787, Americans had direct experience with the threat of military power. In the Declaration of Independence, they attacked King George for empowering his “standing armies without the consent of legislatures.” He had rendered the military “independent of and superior to the civil power” by “quartering large bodies of armed troops among us” for protecting the British military with a “mock trial from punishment for any murders which they should commit on the Inhabitants of these states.”

The Framers feared standing armies would create a vehicle for despotism. In the commander in chief clause, they deliberately placed a civilian at the head of the armed forces. They did so to strengthen control of the military and protect against military coups. The vesting of executive power in the president further bolsters the commander in chief power by recognizing his right to fire subordinate branch officers. Indeed, presidents have used these powers to remove military officers, from Abraham Lincoln removing George McClellan during the Civil War, to Harry Truman removing Douglas MacArthur during the Korean War, and even to Barack Obama removing James Mattis from the United States Central Command.

Crozier is a highly decorated officer who deserves praise for his honorable service. But no one should be allowed to challenge the tradition of civilian authority over the military. Leaked emails cause strategic difficulties, such as supporting the idea of a lack of readiness among military units, and the impression left could embolden potential enemies, which could then put thousands of lives at risk. Days after the leaked email from Crozier, Trump shared information about an Iranian plot to attack our troops, and he later said that Crozier “should not be writing letters like that.”

Yet Biden called Crozier “courageous” while ignoring his violation of chain of command in the military. What does this say to the military leaders who may serve under a Biden presidency? Leak whatever sensitive information you want? Make public comments about United States strategy and force readiness at odds with your elected political leaders?

Military personnel take an oath to defend and protect the Constitution. This sacred oath does not change in the face of adversities. While troop welfare is vital, it does not supersede the duty to serve the Constitution. Even though these are uncharted times with difficult decisions required to respond to the coronavirus pandemic, keeping our nation safe must take priority over a single minded concern about troop welfare. What Crozier did was violate the critical confidence of his command.

One of the most challenging problems for any society is to establish the proper relationship between civilian authority and military power. Indeed, professors and journalists have noted increased tensions between civilian leaders and their military counterparts. Military service has become more specialized, and officers have made claims that they possess an expertise beyond the competence of civilians. But politicians remain accountable to the people for the costs of military success or failure.

The Founders attempted to address this tension by placing control of the military firmly in the hands of the president. Biden fails to understand the importance of that choice. The Founders wanted a military that would be deferential to the civilians of the republic and not the other way around. If Biden truly understands that notion, he would not call Trump “criminal” in his actions, nor would he call Crozier “courageous.” Although it should be strong enough to protect the interests of the country, the military should never be strong enough to challenge its civilian masters.

John Yoo is the Heller Professor of Law with the University of California in Berkeley, a visiting scholar with the American Enterprise Institute, and a visiting fellow with the Hoover Institution. He served as deputy assistant attorney general at the Department of Justice in the Bush administration.