This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the focus of the executive branch, led by uniformed combatant commanders responsible for planning and fighting the nation’s wars as well as an expanding menu of foreign-relations functions. In contrast, Congress primarily focuses on the administrative military, which is largely led by civilian Secretaries of military departments responsible for staffing, training, and equipping the nation’s Armed Forces. The operational military fights, while the administrative military trains and equips.
Understanding how these two militaries arose from their early constitutional origins, evolved after the Second World War, and function in the modern administrative state is essential to a complete understanding of national security governance and its corresponding effects on civilian control of the military. In this Article, I first describe and propose this new two- military framework that has its origins in the Constitution, was further refined in statute, and solidified in military doctrine and agency practice. Second, I address the two-military divide’s consequences – many unintended – showcasing how the Goldwater-Nichols Act in particular incentivizes congressional attention over administrative military matters at the expense of operational military oversight. Finally, I conclude with initial recommendations to “combat” this two-military divide and corresponding executive drift, presenting an integrated national security governance vision that draws upon expertise from other federal agencies.
Military law, administrative law, national security law, constitutional law and history, Goldwater-Nichols Act, Department of Defense, operational functions, battle, war, administrative agency practice, train, equip, Congressional interest, integrated national security governance
Nevitt, Mark P., "The Operational and Administrative Militaries" (2019). Faculty Scholarship at Penn Law. 1971.
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