By Captain Bill Bray, U.S. Navy (Ret.)
Ask any officer why he or she is commissioned into service, and why enlisted personnel are contracted into service. Pay close attention to the answer; often it will be incomplete.
While serving as a CNO Strategic Studies Group fellow more than two years ago, one of the Navy civilian technology fellows posed this to me: “Why does the Navy of the future need a distinction between officers and enlisted? Isn’t the commissioned officer an artifact that needs to be retired in the interest of eliminating such a rigid class structure?”
In the ensuing discussion, it occurred to me that the U.S. military officer commission is not widely or fully understood. This is not just the case for the general population, but includes many officers.
The officer commission does not exist simply to distinguish the military’s executive class from a technical labor force. The nation could accomplish that without commissioning its officers. Nor does the commission describe the type of work officers and enlisted do. They often perform similar or identical tasks, especially in the information age. Instead, the U.S. officer commission is a constitutional imperative and must be understood in both legal and professional contexts.
The commissioning of officers has a long history and can be traced back to the Roman Empire. In the Middle Ages, sovereigns would offer noblemen commissions to raise armies to protect the realm. The commission was a lawful extension of sovereign power. The granting of commissions became more commonplace under the British Empire. After the American war for independence, the Continental Congress recognized the need to continue the practice. Because there was no unitary executive during the second Continental Congress, authority to grant commissions was somewhat clumsily shared between Congress and state governments.
During the Constitutional Convention of 1787, the framers likely acknowledged the need to vest the power to grant commissions solely in the executive because this solution was present in the first draft that summer. In the closing lines of Article II, Section 3 of the U.S. Constitution, the President is required to commission all officers of the United States: “. . . he shall take care that the Laws be faithfully executed and shall commission all the officers of the United States.”
It is instructive that the framers chose to place this in the “take care” clause as opposed to in Article 2, Section 2, with the other enumerated powers. The framers did not see the commissioning of officers as a power the President could and should wield at his discretion, but rather a responsibility he must properly bear. Thus, the President could be held fully accountable for his constitutional responsibilities as the nation’s executive. Indeed, in 1926 the solicitor general argued successfully before the Supreme Court that all commissioned officers are an extension of executive power. In other words, the President cannot be held accountable to “take care that the Laws be faithfully executed” unless he is fully responsible for and can remove the officers who exercise his executive authority.
Congress creates the office to which the President nominates an officer. Once the Congress approves the appointment, the President grants the officer the commission. While in practice granting commissions to officers is a ministerial act, it does not change the nature of the commission in the constitutional context. In the famous Marbury v. Madison decision of 1803, Justice John Marshall wrote that “granting a commission is the distinct act, done in the name of the President, which empowers an officer.”
Commissioning is done to ensure the President is fully accountable for what the military does in defense of the nation, and this is why officers serve at the pleasure of the President. It is fundamentally different in nature from the enlisted contract.
Flowing from the constitutional context is the legal context. There are several U.S. and international legal requirements and distinctions for commissioned officers. For example, under international law, a warship must be commanded by a commissioned officer. This inextricably binds the state to the actions of the ship. Likewise, under U.S. law, all commanding officers must be commissioned officers. This binds the power and accountability of the commander-in-chief, the executive, to all military command positions.
Finally, officership above all is else a profession. In his famous 1957 book The Soldier and the State, Samuel Huntington wrote that the distinguishing characteristics of a profession are expertise, responsibility, and corporateness. The latter characteristic means a shared sense of organic unity and consciousness as a group apart from laypersons.
Military officership, according to Huntington, is a profession because it fully embodies these characteristics. Military officers certainly share a sense of organic unity that distinguishes them from laypersons. The expertise, Huntington asserts, is the management of violence. While enlisted personnel are technical experts in the application of violence, the officer is the manager of violence on behalf of the state. The responsibility of all officers is the military security of the state. In return, the society of the state must fairly compensate its military officers, but not overcompensate them, lest their chief motivation for service become confused. The state’s military officers are not mercenaries on behalf of a well-paying client; they are professionals of a higher calling.
The commission binds both the officer to the state to serve lawfully and defend the Constitution, and the state’s executive to each officer, making him or her a direct extension of the executive’s constitutional power.
Captain Bray served as a naval intelligence officer for 28 years before retiring in 2016. Currently, he is a managing director in the Geopolitical Risk practice at Ankura.