What would happen if the President of the United States were to order a strike on an enemy target?  What if the command is to mobilize National Guardsmen to respond to flooding after a hurricane?  Most people would, I think, agree that those orders would be lawful exercises of presidential power, and I think that the law would support those orders.  What if, instead, the orders that were given by the President were to do something patently illegal?  There would certainly be an impetus to obey that order if you were the recipient of that order, but obedience to orders is generally at the peril of the one following them, and ultimately, something obviously illegal would likely not be obeyed.  In these clearly defined black and white examples, there is not much room for uncertainty.  Foreign policy and domestic security are clearly within the President's authority.  Illegal acts are illegal.  What about orders and commands that aren't clearly legal or illegal?

We know that the military has agency; that is, its leaders, officers, and enlisted members do not blindly following orders from the executive.  In the lead up to the 2016 Presidential election, we saw influence by retired military officers attempting to advocate on behalf of candidates.  Recently, we saw active duty officers attempt to lead and influence the Commander-in-Chief in the response after it was announced that transgender individuals would not be able to join the military and after the tragic violence in Charlottesville, VA.

Setting aside for the moment the agency of the military, one of the founding pieces of literature in the field of civil-military relations discussed the role of military in society, and amongst many other astute observations and analysis, identified military officers as "conservative."  Huntington was referring to the conservative realism of the military, praising the highest virtue of military men as obedience.  In the politically charged modern environment, the natural inclination is to assume that "conservative" has a partisan definition. 

To this point, the military being viewed as conservative, and the military being able to make its own choices are two pieces of a tricky triangle.  The final side to lay out before exploring very difficult terrain is that there is a high degree of confidence in the military.  As an occupation, confidence in the military exceeds confidence in teachers, scientists, engineers, and doctors in 2013, and again in 2017.  In 2016, Pew also found that confidence in the military exceeded those same groups, adding in news media, business leaders, and elected officials.  The military is trusted, and one reason for that trust is that it is generally seen as above politics.  That, while its members may be political actors in the sense that they have opinions and that they vote, there are rules in place barring advocacy by them in uniform, and they are largely seen as apolitical in the broadest sense.

The simple question that these points intersect at is whether the military is - or should be - a political tool of the Commander in Chief.  That is, can the military be ordered to vote in a certain manner or compelled, or asked, to reach out to their member of Congress?  Is an allusion to the Forever 9/11 Bill during the commencement speech at the United States Coast Guard Academy?  Is this the President discussing relevant affairs to a new generation of Coast Guard officers and their families, or a call to advocacy for those same officers and families?  What about speaking to Sailors and families at the commissioning of the USS Gerald R. Ford, was President Trump discussing health care reform as part of a national policy debate, or was he issuing an implicit order to each individual who was sworn to obey the President of the United States that his vision for health care is the proper one and instructing them to get involved to achieve that end?  What if the language of the speech specifically calls for advocacy?  In that same speech to the families and Sailors at the commissioning ceremony of the USS Gerald R. Ford, the President said "I don't mind getting a little hand, so call that congressman and call that senator and make sure you get it.  And, by the way, you can call those senators to make sure you get health care."

While it can be easily stated that the President has a right to free speech, and as the President, he has the right and responsibility to discuss matters of public discourse that affect the national interest, the question is not related to that right.  Rather, this is the intersection of the military having a legal right to speak, and legal obligation to obey the President, a sense of agency to influence and affect policy, and a public confidence in them.  If the military were to be an agent of the President and call their representatives, do they lose the confidence that the public has in them and simultaneously reinforce the image that they are a partisan institution?  What if, instead, the military does not heed the President's call, meaning that one of the core tenets of the military  - discerning and following Commander's intent - is weakened?  Does a situation emerge wherein military leaders will have to parse words from the President as to what is an order and what is only discussion?  Politicization of the military is a dangerous, difficult issue that is ripe with issues involving the intersection of rights, and its not one that will soon be answered.

One of the critiques that is levied against the Supreme Court is that is is countermajoritarian.  That is, nine unelected justices can overturn legislative passed by - and signed into law by - elected representatives, or taking a more strategic view of the Supreme Court, only five justices - a simple majority of the nine that are traditionally on the Court - are sufficient to determine that a statute is invalid.  This immediately raises questions about the nature of a representative democracy and whether an result that contraverts the majority is legitimate.

In 2000, in the Presidential election contest between Governor Bush and Vice President Gore, Bush famously won the presidency, and Gore famously won the popular vote.  While the final vote has yet to be tallied in the 2016 Presidential election, it is known that Sec. Clinton lost the election, but is is increasingly likely that she will win the popular vote (While electoral behavior and shifts of demographics are important and especially so as both parties seek to define themselves and their bases going forward, they are not the focus of this post, or this blog.  It is worthy to note, however, that the census will be performed in 2020, and per Article I, Section 2, Clause 3 of the Constitution, the census shall determine representation, which, in turn, determines each state's elecoral votes), which may affect how the popular vote correlates with the electoral vote).

In the wake after the election, there has been a noticible uptick of interest in discussing the origins of the Electoral College and whether it should continue to exist in its current (or any) form.  The Republicans will hold both houses of Congress and the Presidency, in addition to over thirty state houses (though not 3/4 of the Legislatures of those states), and it arguably would not be in their interest to pass legislation that would eliminate the Electoral College, as they won under the current system.  More likely than reform under a Republican Congress and President, could state legislatures pass acts that reapportion how they assign their electoral votes?

Could a federal or state bill be passed and signed that served to eliminate the Electoral College?  Likely not.  In the event of state action, interstate compacts - agreements among and between states - need the consent of Congress, per Article I, Section 10, Clause 3.  Essentially how these compacts would work is that states, who cumulatively possess 270 electoral votes, would agree that they would give their entire apportionment of votes to the candidate who wins the national popular vote, instead of the state popular vote (as currently exists in a pure form in forty-eight states and in a partial form in the other two).  At present, ten states and the District of Columbia have signed on to the compact, which would trigger once the states who joined possess 270 electoral votes.  However, this compact likely runs afoul of two separate provisions of the Constitution.  In addition to potentially violating the Compact Clause, as described above, it also potentially is an invalid attempt to amend the Constitution from the state level, as an insufficient number of states would agree with such a compact as to trigger an amendment.  Similarly to a state action, a federal action to amend the Electoral College arguably runs afoul of one of the stronger arguments that the States claim for their right to amend the Electoral College, that Article II establishes the plenary power of the states to appoint their electors in any manner as they see fit.

Where does this leave what has been termed the "National Popular Vote Interstate Compact"?  Firstly, it certainly is not a product of the 2016 election.  This Compact has been trying to build momentum for a number of years, and it is gaining notoriety in the past few weeks due to the election.  Secondly, it is an important issue, as voters (primarily Democratic voters) see that the President of the United States, two times in the past sixteen years, has not been elected by a majority (or a plurality) of the people who voted in the election.  While such an attack does not seem to undermine the legitimacy of the elected president, as the constitutional processes in place (the Electoral College) were used properly, it becomes a strategic point, as at present, the ten states and the District of Columbia who affirmed the Compact are all traditionally Democratic jurisdictions.  Regardless of the partisan differences currently on display, and the seeming partisan allegiance to modifying the Electoral College (though bills to modify it have passed through Republican state legislatures), a modification to the Electoral College, in all likelihood, needs to come through as a Constitutional amendment, and not through a lesser, though potentially more expedient way.

It is not surprising that the military is being discussed as an issue during this Presidential election.  Many previous Presidential contests have, at minimum, had an issue related to foreign policy or use of the military, and every election since September 11, 2001 has had discussion concerning the proper role of the military and the use of the military in United States foreign policy ​​.

This election has followed the path of its predecessors by having as one of the central issues in the campaign the role and use of the military, but this discussion has been fundamentally different than others.  In recent weeks, there has been a Gold star family that advocated for their preferred candidate and a tweet that argues that the military needs military justice reform concerning sexual assaults.  However, these issues, while important, treat the military as a tool; arguing that an experienced leader with a proper temperament is required and that the justice system in the military does not meet common expectation or understanding.

A far more difficult issue to contend with in this election cycle is the advocacy of influential, retired leadership of the military.  From the former Secretary of Defense, to the former Commander of the International Security Assistance Force, to the retired General in charge of the Defense Intelligence Agency, military leadership has been vocal in this election cycle about the qualities that they believe that the next President of the United States should have, and who they believe has those qualities. GEN (Ret) John Allen, USMC, at the Democratic National Convention, and flanked by over thirty veterans, stated that Mr. Trump could cause a "civil military crisis, the like of which we've not seen in this country." In response, LTG (Ret) Michael Flynn, USA lashed out one day after the DNC, and on Fox News, blasted GEN (Ret) Allen for the endorsement. LTG (Ret) Flynn has subsequently stated that a number of Generals have been forced out under the current administration, and has publicly endorsed Mr. Trump.

Military personnel having an opinion on politics is hardly new.  While the military tends to trend conservative, those opinions are generally constrained to the individual, and not placed in the public forum, due to both tradition and law.  The Hatch Act of 1939 (officially, "An Act to Prevent Pernicious Political Activities"), which was last amended in 2012, sets forth permitted and impermissible activities for servicemembers to engage in.  Some of the impermissible activities include using one's official authority or influence to interfere with an election, soliciting or receiving political contributions, or engaging in political activity while on duty, or in a government office, or wearing an official uniform.  Conversely, the permitted political activities of servicemembers include registering to vote and voting, contributing money to political candidates and political campaigns, and attending political campaigns and rallies assuming that the servicemember is not in uniform or otherwise engaged in impermissible action during what is permitted conduct.

One of the fundamental questions involved with the field of civil-military relations is "Who controls the military?"  This question has been examined from the perspectives of the President and Congress, harkening to the President being the commander-in-chief and the Congress authorizing appropriations, but the bearing in mind the cultural and legal restraint that the military practices, the question is not that different from asking "Who owns the tool?"  A more difficult presentation of the question of "Who controls the military" is when the military positions itself in an attempt to choose its leader; that is, the tool is attempting to choose its wielder.

This immediately presents at least two concerns - first, that the legitimacy of the institution is damaged by the support, and second, that the leadership of the military will not follow the orders of the commander-in-chief that it opposed, or alternatively, it will blindly follow the commands of the commander-in-chief that it supported.

In a 2016 Gallup poll on the confidence in institutions, that asked respondents how much confidence they had in various institutions - a great deal, quite a lot, some, or very little, 73% of those polled responded that they had either a great deal of confidence or quite a lot of confidence in the military.  This number exceeded that of the police - 56%, the Presidency - 36%, the Supreme Court - 36%, and Congress - 6%  In fact, of all the institutions that were polled, to include small business, big business, organized religion, public schools, and the aforementioned police and branches of the federal government.  Arguably, the overwhelming confidence in the military is due to its apolitical nature, that it professionally manages situations that it is placed into, but that it does not itself go into those situations.  The change in tone from being an instrument of the Executive to voicing opinions about the qualities of its potential future leaders signals a change in attitude that may destabilize the public's confidence in the institution.

Beyond the public's confidence is the issue military's loyalty and obedience.  With its leaders aligning with one candidate or the other, there is a risk that either the President will be ideologically co-opted by the military position, or that the military leaders will be unable - or unwilling - to disobey what may be an illegal order due to fealty or an order that aligns with their preexisting ideological position.  Such a shift would fundamentally change the role of the military from an instrument with its own morality and judgment to an amoral executor of Presidential commands and is something to watch for as the election - and its after effects - grow nearer..