Law Quarterly

Hypocrite in Chief

By Aaron Hill

Dec
23

“Why is @BarackObama constantly issuing executive orders that are major power grabs of authority?” – @realDonaldTrump, 2012

On October 20, 2017 President Donald Trump issued an executive order that amended President Bush’s order of September 14, 2001 to state “the authorities available for use during a national emergency under sections 688 and 690 of title 10, United States Code, are… invoked and made available…” While this language doesn’t seem particularly explosive, and at the time didn’t receive much media attention, the reality is that Trump’s October 20th executive order grants the President immense power over retired military personnel.

To begin, we will first explore what exactly is in Bush’s executive order in addition to its historical context. As most people know, on September 11th, 2001 the United States was attacked by Al Qaeda. In the wake of this tragedy in which nearly 3,000 people lost their lives, President Bush sought swift action to deal with the threat of terrorism. So, a few days later on September 14th President Bush issued Executive Order 13223, which used the state of national emergency declared on the same day as a justification “…to order any unit, and any member of the Ready Reserve not assigned to a unit organized to serve as a unit, in the Ready Reserve to active duty for not more than 24 consecutive months, is invoked and made available…,” additionally, it stated that its broader purpose was “…for the orderly administration of personnel within the armed forces…”

Now that we understand President Bush’s executive order 13223 and the history behind it,  what exactly does Title 10 of the US code Sections 688 and 690, which Trump has added to Bush’s executive order, stipulate? Section 688 states that retired members of the armed forces may be ordered back into active duty “…by the Secretary of the military department concerned at any time.” Furthermore, it stipulates that “A member ordered to active duty… may not serve on active duty pursuant to orders under that subsection for more than 12 months within the 24 months following the first day of the active duty to which ordered under that subsection.” Section 690 adds further restriction to the ability to recall retired service members by stating that “Not more than 15 retired general officers of the Army, Air Force, or Marine Corps, and not more than 15 retired flag officers of the Navy, may be on active duty at any one time,” as well as “…not more than 25 officers of any one armed force may be serving on active duty concurrently.”

For clarity, “general officers” refers not to the general body of officers, but rather officers of the Army, Air Force, or Marines who have attained at least the rank of brigadier general or higher, while “officers” refers to either warrant or commissioned officers.

So, what do these sections stipulate in language that isn’t so technically complex? Basically, they mean that it is well within the purview of the executive branch to order retired members of the nation’s military back into service, given restrictions on branch and length of service. Broadly speaking, these restrictions and stipulations are reasonable. However, all of these restrictions and stipulations, as stated in the statutes, “…do not apply in time of war or of national emergency declared by Congress or the President.”  But why does this stipulation about national emergencies or war matter to Trump’s executive order?

The reason why this is pertinent is because the same declaration of national emergency issued by President Bush in 2001 has been re-established annually by each of his successors, most recently by Trump on September 11, 2017.This trend of renewal is not uncommon however, as CNN reported on August 27th that the United States is under 28 individual, simultaneous states of emergency, the majority of which are merely re-established states of emergency. Because the United States is under these states of emergencies, the president now has the legal capacity to recall into service retired service members.

What motivations could President Trump have for issuing such a potentially far-reaching executive order? One possible explanation is that the U.S. Air Force is presently experiencing a significant pilot shortage. According to an article from Real Clear Defense “… the Air Force has a requirement for 20,352 pilots, including 5,292 fighter pilots. The force today has 18,808 pilots. But fighter pilots account for most of the overall deficit of 1,544. The Air Force today is 1,211 short of what it needs.” This answer seems to be likely as an ABC article suggests that the Air Force now has the ability to recall “…as many as 1,000 retired military pilots” per an Air Force spokesman.

In conclusion, despite seemingly innocuous language in the executive order, due to the empowering “national emergencies” clauses of Sections 688 and 690 of Title 10, the President now has full legal authority to recall any number of service-members, of any rank, of any branch, for any duration of time.

Co-Author: Chris DeMarco

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