When Is “Undersight” Unconstitutional?

If oversight is when a superior has the right to disapprove of an underling’s decision, what is “undersight”?

It’s my term for when an underling has the right to disapprove of a superior’s decision.? It’s not surprising to see principal-agent contracts with oversight provisions, but in two recent statutes the lame duck Congress has arguably imposed undersight provisions on the President acting as our commander-in-chief:

  1. A?major defense authorization bill, which “both chambers passed on the last day of Congress’s lame-duck session” included a “provision [that] forbids the transfer of any detainee to another country unless Defense Secretary?Robert M. Gates signs off on the safety of doing so.”
  2. The?”Don’t Ask, Don’t Tell Repeal Act of 2010” only becomes effective, inter alia, 60 days after the President “transmits to the congressional defense committees a written certification,?signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating [that] the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”

These acts are constitutionally troubling because they undermine?civilian control of the military.? It might be permissible for Congress to delegate a purely ministerial function to an underlying.? For example, it might be permissible for Congress to condition an appropriation on a non-discretionary accounting (such as when the “Strom Thurmond National Defense Authorization Act for Fiscal Year 1999?suspended DOD affirmative action in any fiscal year directly following a fiscal year in which DOD certified that it awarded at least 5% of its contract dollars to small disadvantaged businesses”).? But it strikes me as impermissible for Congress to give a non-civilian underling veto power of military policy.? And to be clear, our military leaders are constitutional underlings to the President because of the commander-in-chief clause.

These recent undersight provisions remind me of the wrong-headed reconstruction?amendment to the Army Appropriation Act, which required Andrew Johnsonto transmit all orders to military commanders through General of the ArmyUlysees S. Grant.? One way to avoid the constitutional difficulty is take the “commander” in “commander-in-chief” more seriously.? These three underling provisions on policy would not be troubling if the President could simply order his underling to make the requisite statutory certification.? But the intent of Congress in the GITMO, DADT and reconstruction examples seem to be to insert an underling as an independent decision maker.? It’s not surprising that Obama’s lawyers are debating whether to issue a signing statement “asserting that his executive powers would allow him to bypass the restrictions.”? One can make a principled distinction between a President resisting a?Congressional ban on torture and a President resisting a veto from a constitutional underling.

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  1. DCLawyer68 says:

    But the notion of the “underling” is hardly settled law.

    Indeed, when conservatives advanced this notion of a “unitary executive” they get bashed to death for it.

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  2. Marie Burns says:

    Right. The same sanctimonious legislators who think God wrote the Second Amendment are the ones who proposed this curb on the presidency. They don’t seem to realize that the very purpose of the Second Amendment was to allay the fears of those who worried that the military might take over the country. So what do our modern gun-loving yahoo reps do? They write laws giving the military veto power over the civilian government.

    Maybe the tea partiers idea of making legislators identify the clause of the Constitution they think sanctions their bill isn’t as superfluous as it seems. Let’s see them find the place where the Constitution says Adm. Mullen can override President Obama’s decision.

    The Constant Weader at http://www.RealityChex.com

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  3. Shawn says:

    The premise of the question doesn’t make sense. The president (executive branch of the US government) does not “oversee” Congress (the legislative branch). They are two legs of an equilateral triangle. The balance of power has always shifted back and forth between them to some extent, and it always will, as each branch maneuvers and jockeys to the will of the party that controls it.

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  4. james says:

    @shawn – the article is not in reference to the constitutional relationship between the executive and legislative branches, it is to the fact that the legislative branch is requiring the secretary of defense and joint chiefs of staff to sign in ADDITION to the president. Since the president is a constitutional superior to the secretary and joint chief, then it seems like an unusual request of congress.

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  5. Tumbolian says:

    The first doesn’t undermine civilian control of the military, as SecDef is a civilian. In fact, both POTUS & SecDef constitute National Command Authority (NCA), meaning that the SecDef has independent authority to approve use of nuclear weapons.

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  6. JimFive says:

    First, I think this sort of thing happens a lot more than most people expect and it isn’t really a problem because all of these people hold their position at the pleasure of the President. He can say “Sign it or resign”.

    But in the examples I think there are two issues: In the first example, Congress is creating a scapegoat – someone below the President who can be help personally responsible. In the second example Congress is creating a bar to require that the law doesn’t go into effect until the military states that it is ready for it.

    On the face of it there is nothing wrong with either of these desires. A problem only occurs if there is a dispute between the President and his executive department, in which case we are back at “Sign it or resign.”


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  7. George Scoville says:

    I agree with what commenter Shawn asserts here. Congress and the presidency do not have a superior/subordinate relationship; rather, they have a lateral relationship (in the eyes of the law). Because this post begins with several false premises, it thus arrives at some weak conclusions.

    Additionally, giving Secretary Gates veto power over some of the military’s policy doesn’t undermine civilian control over the military. Gates is a Cabinet-level civilian bureaucrat, serving at the pleasure of the president, who remains Commander-in-Chief.

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  8. Drill-Baby-Drill drill Team says:

    A government employee has two roles, hopefully most of the time they are not in conflict:

    1. Employee hired to perform a job.

    2. Constitutional role that upholds the principles and practice of the US Constitution.

    (3. Obey the Law. This provision is assumed.)

    As a human being we are free to oppose any task that violates our conscience, morality or ethics. We MUST conscientiously object to moral catastrophes, .ie Nazi orders during WW II.

    We may be fired. Or disowned by an unjust government. But we must live with our conscience for the rest of our lives. I would make a lousy soldier.

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