The Military Regulations Clause

The Congress shall have Power . . . To make Rules for the Government and Regulation of the land and naval Forces. . . .

—Judge Gregory E. Maggs & Robert Leider

Introduction

The Military Regulations Clause grants Congress the power to “make Rules for the Government and Regulation of the land and naval Forces.” Justice Joseph Story described this power as “a natural incident to the . . . powers to make war, to raise armies, and to provide and maintain a navy.”¹ Congress has exercised this power in enacting nearly all of the laws that organize and regulate the Department of Defense, Army, Air Force, Coast Guard, Marine Corps, Navy, and Space Force. Congress also has used this power to establish a separate military justice system that includes both courts-martial and appellate courts. The Supreme Court has addressed this system in leading cases. Under modern precedent, members of the armed forces can be subject to a trial by court-martial for offenses regardless of whether the charged offenses are related to their service.

History Before 1787

Military law has a long history. The Romans, for example, used a military law distinct from their civil law to maintain discipline within their army, arguably contributing greatly to its strength.² In England, King Richard I and subsequent kings used the royal prerogative to issue orders regulating the military.³ Kings also authorized “articles of war” defining offences.⁴ In 1661, Parliament adopted Articles of War for the Navy, about nine years after it had first passed rules governing the entire Navy.⁵ Parliament’s first legislation for the Army was the Mutiny Act of 1689, which established capital punishments for certain offenses.⁶ During colonial times, when American troops joined British troops, both followed the then-applicable British articles of war.⁷

In April 1775, shortly after the battles of Lexington and Concord, representatives from the colonies met in Philadelphia as the Second Continental Congress. On June 14, 1775, the Congress created the Continental Army.⁸ The same day, Congress also formed a committee that included such leading figures as John Adams and George Washington and charged it with preparing “a dra[f]t of Rules and regulations for the government of the army.”⁹ The committee proposed sixty-nine “Articles of War” based on British and colonial military laws.¹⁰ These articles were “virtually identical” to those in British law. On June 30, Congress approved these Articles of War, which established a military justice system for the Continental Army.¹¹ In November, Congress approved a similar set of “Rules for the Regulation of the Navy of the United Colonies.”¹² Congress substantially amended the Articles of War on September 20, 1776, to make them more effective by increasing the number of offenses that were punishable and the punishments that were authorized.¹³

The Articles of Confederation also empowered the national legislature to establish regulations for the military. Article IX provided that Congress “shall also have the sole and exclusive right and power of . . . making rules for the government and regulation of the . . . land and naval forces” in service of the United States.¹⁴ Congress exercised this power by making various amendments to the Articles of War.¹⁵ For example, an amendment in 1786 reduced the minimum number of members serving on a general court-martial from thirteen to five to facilitate the trial of offenders in smaller units.¹⁶

The Constitutional Convention

During the Constitutional Convention, there was no meaningful disagreement over the legislature’s power to regulate the armed forces. The Framers would copy the language from Article IX. On August 18, 1787, with no recorded debate, the delegates approved a clause granting Congress the power to “make rules for the government and regulation of the land and naval forces.”¹⁷ James Madison of Virginia observed in his notes that this clause was “added from the existing Articles of Confederation,”¹⁸ which had nearly identical language. The Committee of Style made no significant changes.¹⁹ “Land forces” referred to the Army, and “naval forces” referred to the Navy. A separate provision would give Congress the authority to regulate the militia.²⁰ (See Essay Nos. 62 and 63.)

The Ratification Debates

During the ratification debates, Congress’s power to make rules and regulations for the Army and the Navy appears not to have been controversial. Neither Federalists nor Anti-Federalists said much about it. In Federalist No. 69, Alexander Hamilton mentioned this power during a broader discussion of how the Constitution divided military authority between the President and Congress. He acknowledged that the President is the “Commander in Chief of the army and navy” but said that his power is inferior to that of the “British King” whose power “extends to the declaring of war and to the raising and regulating of fleets and armies.” Hamilton observed that all of these powers under the Constitution “would appertain to the Legislature” and not to the Executive.

The Articles of War

In 1789, the first Congress passed a law that expressly continued the Articles of War in force.²¹ These were an amended version of the Articles first adopted by the Continental Congress in 1775 and subsequently amended by it on several occasions. Here Congress invoked its powers under the Military Regulations Clause.

Over the years, the Articles of War were revised from time to time. They provided the military justice system for the Army but did not apply to the Navy.²² In 1950, Congress adopted the Uniform Code of Military Justice (UCMJ). This system governs all of the armed forces, including the Navy, Marine Corps, Air Force, Space Force, and Coast Guard as well as the Army.²³

Who is subject to court-martial?

A court-martial is a military “tribunal convened to determine guilt or innocence and levy appropriate punishment” when a person subject to court-martial jurisdiction is charged with a criminal offense.²⁴ The U.S. Supreme Court has decided a series of cases involving the question of who can be subjected to a court martial. Under the Articles of War, Congress subjected persons currently on active duty in the armed forces to trial by court-martial for military and naval offenses. Dynes v. Hoover (1857) held that the Military Regulations Clause granted Congress this power.²⁵ In this case, the defendant was charged with “desertion,” but was only convicted of “attempted desertion.” Nevertheless, the Articles of War did not specifically include an offense of the lesser offense of “attempted desertion.” The Court still upheld this conviction. In resolving this narrow issue, the Court carefully explained the broader constitutional basis for courts-martial.

Nearly a century later, the Court found a limit on the Military Regulations Clause. United States ex rel. Toth v. Quarles (1955) held that former servicemembers, who were in the military but had completed their military service, could not be subject to trial by court-martial for crimes committed when they were on active duty.²⁶ The Court explained that Congress’s power “‘To make Rules’ to regulate ‘the land and naval Forces’ would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces.”²⁷

Reid v. Covert (1957) held that Congress could not use the Military Regulations Clause to subject the wife of a servicemember to trial by court-martial for a capital offense.²⁸ The plurality opinion explained that the clause’s “natural meaning” does not “extend” Congress’s power “to civilians—even though they may be dependents living with servicemen on a military base.”²⁹ Kinsella v. United States ex rel. Singleton (1960) further held that the clause also does not allow Congress to subject a dependent to trial by court-martial for a non-capital offense.³⁰ The Court reasoned that “civilian dependents” are not “included in the term ‘land and naval Forces’ at all.”³¹

What offenses are subject to court-martial?

Until the Civil War, the Articles of War primarily covered offenses of a military character, such as desertion, disrespect to commanders, and so forth, as opposed to traditional common-law crimes that civilians also might commit.³² During and after the Civil War, military law expanded to bring more traditional civilian crimes such as robbery, arson, burglary, and rape within the scope of the military justice system.³³

In “an unbroken line of decisions” from the 1860s until the 1960s, the Supreme Court held that the Constitution authorized Congress to subject a member of the armed forces to trial by court-martial based solely on his or her military status regardless of whether the offense charged had a military character.³⁴ For example, Coleman v. Tennessee (1879) held that a court-martial could try a soldier for murder, an offense that otherwise would be triable in state court.³⁵ However, O’Callahan v. Parker (1969) broke with this long-standing precedent and held that Congress could not use the clause to subject a member of the Armed Forces to trial by court-martial for an offense unless the offense was “service-connected.”³⁶ In that case, an assault and an attempted rape of a civilian off-post and after duty hours was not connected in any way to the soldier’s duties.

This holding was short-lived. Two decades later, Solorio v. United States (1987) overruled O’Callahan and held that no service connection was required if the accused has a military status.³⁷ The Court read the Military Regulations Clause deferentially: “[D]etermination[] concerning the scope of court-martial jurisdiction over offenses committed by servicemen [is] a matter reserved for Congress.”³⁸

Open Questions

• The Supreme Court has held that Congress cannot use the Military Regulations Clause to subject civilians to trial by court-martial, but can Congress subject certain classes of military reservists and military retirees to trial by court-martial for conduct that occurs in their civilian life? Lower courts have held that Congress can subject retirees of the regular components to military jurisdiction in their retirements when not serving on active duty.³⁹
• Does Congress’s power to regulate the armed forces trump the President’s powers as commander in chief?⁴⁰ Can Congress limit who the President can select as officers? Can Congress set rules governing the treatment of detainees? President George W. Bush, for example, approved such laws but issued a signing statement that objected to the binding nature of these provisions.⁴¹
• The Military Regulations Clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” What is the original public meaning of “Rules,” “Government,” and “Regulation”? These words are used elsewhere in the Constitution. Do they have a consistent meaning in these other provisions?

1. 3 Story’s Commentaries § 1192. ↩︎
2. C.E. Brand, Roman Military Law 9 (1968). ↩︎
3. 1 William Winthrop, Military Law and Precedents 18 (2d ed. 1920). ↩︎
4. Id. at 19; 2 Winthrop at 919–46 (reprinting early British Articles of War). ↩︎
5. 2 William Laird Clowes, The Royal Navy: A History from the Earliest Times to the Present 102–03 (1898). ↩︎
6. 1 Winthrop at 19–20. ↩︎
7. Walter B. Huffman & Richard D. Rosen, Military Law: Criminal Justice & Administrative Process 27 (2018). ↩︎
8. 2 J. Cont. Cong. 89–90 (June 14, 1775)). ↩︎
9. Id. ↩︎
10. Id. at 111–22; Lawrence Morris, Military Justice 14 (2010). ↩︎
11. Id. at 111. ↩︎
12. 3 J. Cont. Cong. 378 (Nov. 28, 1775); id. at 378–87. ↩︎
13. Huffman & Rosen, supra at 30–32. ↩︎
14. Articles of Confederation, art. IX, § 4. ↩︎
15. 1 Winthrop at 22–23. ↩︎
16. Id. at 23. ↩︎
17. 2 Farrand’s 330. ↩︎
18. Id. ↩︎
19. Id. at 570. ↩︎
20. Art. I, § 8, cl. 16. ↩︎
21. Act of Sept. 29, 1789, § 4, reprinted in 1 United States Statutes at Large at 95–96 (Richard Peters, ed. 1845). ↩︎
22. Huffman & Rosen, supra at 73. ↩︎
23. 10 U.S.C. § 802. ↩︎
24. Ortiz v. United States, 585 U.S. 427, 432 (2018). ↩︎
25. 61 U.S. 65, 79 (1857). ↩︎
26. 350 U.S. 11, 23 (1955). ↩︎
27. Id. ↩︎
28. 354 U.S. 1 (1957). ↩︎
29. 354 U.S. 1, 19 (1957) (plurality opinion). ↩︎
30. 361 U.S. 234, 246 (1960). ↩︎
31. Id. ↩︎
32. Huffman & Rosen, supra at 38; 2 Winthrop at 953–85. ↩︎
33. Huffman & Rosen, supra at 40. ↩︎
34. Solorio v. United States, 483 U.S. 435, 439 (1987). ↩︎
35. 97 U.S. (7 Otto) 509, 513–14 (1879). ↩︎
36. 395 U.S. 258, 272 (1969). ↩︎
37. 483 U.S. at 436. ↩︎
38. Id. ↩︎
39. Larrabee v. Del Toro, 45 F.4th 81, 83 (D.C. Cir. 2022). ↩︎
40. Saikrishna Bangalore Prakash, Deciphering the Commander-in-Chief Clause, 133 Yale L. J. 1 (2023); Zachary S. Price, Congress’s Power over Military Offices, 99 Tex. L. Rev. 491 (2021); John Yoo, Transferring Terrorists, 79 N.D. L. Rev. 1183, 1202 (2004). ↩︎
41. President’s Statement on Signing of H.R. 2863, Dec. 30, 2005, https://perma.cc/2Q4B-CLXZ. ↩︎