Is the United States facing a civil-military crisis under President Donald Trump? According to many anti-Trump pundits, the answer is a resounding yes.

Writing in Foreign Affairs on Oct. 15, Max Boot argues that “Trump and his defense secretary, Pete Hegseth, are engaged in a far-reaching assault on the apolitical professionalism that has made the U.S. armed forces one of the most admired institutions in American society. Trump’s attempts to turn the military into a MAGA militia are alarming. … What Trump and Hegseth are doing represents a threat to democracy — and a profound test for service members, who do not swear a personal loyalty oath to the president but to ‘support and defend the Constitution of the United States.’” Writing in the Atlantic, Tom Nichols agrees, claiming that a “new and dangerous moment [in civil-military relations] has arrived.”

These writers contend, among other things, that Trump is trying to create a politicized military expected to swear personal fealty to him rather than to the Constitution, that he is violating traditional civil-military norms by using the military for domestic law enforcement, and that he has issued unlawful orders by attacking drug traffickers in international waters.

In most respects, these are the latest version of the attacks on Trump during his first term, which I addressed in a summer 2021 essay for the military journal Strategic Studies Quarterly: “Maximum Toxicity: Civil-Military Relations in the Trump Era.” I argued that Trump bore some responsibility for the toxic state of U.S. civil-military relations, but he was far from alone.

National Guard troops stand in Lafayette Park, with the White House in the background, in Washington. (Photo by Andrew Caballero-Reynolds/AFP via Getty Images)

For example, the U.S. officer corps, both active and retired, aided and abetted by a press eager to paint Trump in the most negative light, shared much of the blame. For one thing, too many in the military seemed to have forgotten that the president bears the responsibility for establishing U.S. policy. The military provides advice but does not have the right to “insist” that the president accept it. U.S. history also illustrates that the military is not always right, even when it comes to military affairs. Meanwhile, the denizens of the administrative state, particularly those members of the so-called national security community, worked to undermine Trump from the beginning of his first administration.

For example, right after his first inauguration, Georgetown Law professor Rosa Brooks, a respected academic and senior Pentagon appointee from 2009 to 2011, wrote in Foreign Policy that Trump’s “first week as president has made it all too clear [that] he is as crazy as everyone feared. [One] possibility is one that until recently I would have said was unthinkable in the United States of America: a military coup, or at least a refusal by military leaders to obey certain orders.” She continued that, for the first time, she could “imagine plausible scenarios in which senior military officials might simply tell the president: ‘No, sir. We’re not doing that.’” There is a name for this: praetorianism.

From the time of Augustus Caesar until Constantine, a corps of soldiers known as the Praetorian Guard protected the Roman emperor. Over time, the Praetorians became the real power in Rome, appointing and deposing emperors at will. In our time, praetorianism has come to mean despotic military rule, something associated with countries in which the army is the real power behind the government. Praetorianism would seem to be incompatible with republican government, although the attempted coup against French President Charles de Gaulle in 1961 arose from a praetorian bent on the part of the officers who sought to depose him over his intention to grant independence to Algeria.

National Guard troops conduct a community safety patrol on Beale Street on Oct. 24 in Memphis, Tennessee. (George Walker IV/AP)

Although the Constitution provides the foundation for civilian control of the military, what this means in practice is far more complicated. As Samuel Huntington noted, the Constitution itself makes the practice of civilian control difficult as it divides it vertically between the state and federal levels and horizontally between the executive and legislative branches. Long practice has cemented the idea that, in practice, the professional officer corps is to provide advice to civilian decision-makers and then execute the policy. The military has no right to insist that its recommendations be accepted. Of course, the military is not obligated to follow an illegal order.

But exactly where to draw the lines that guide the behavior of the professional officer corps is difficult in practice, which raises a perennial question at the heart of civil-military relations: What do military leaders do if their advice is rejected? During Trump’s first term, he and his military advisers clashed over such issues as our relationship with NATO, U.S. military actions in Afghanistan, intervention in Syria, and the appropriate response to domestic disorder. This question still defines civil-military relations during his second term.

Bureaucracies frequently respond to policies that they oppose by using time-tested subterfuges to undermine the president’s ability to implement his agenda: “slow-rolling” execution, leaking to the press in an effort to undermine public confidence in the decision, and simply ignoring the policy. Bureaucracies have perfected these kinds of responses to policies with which they disagree, and those in the senior ranks of the military are often no different. During Trump’s first term, the military did not hesitate to employ all of these tools.

Politicizing the military

Critics claim that Trump intends to “politicize” the military by purging those who do not share the president’s vision. They point to the fact that the Trump administration has fired a number of flag and general officers since taking office in January. Both Boot and Nichols claim that Trump’s actions are unprecedented. But as I wrote in my own book, Civil-Military Relations After 9/11: Renegotiating the Civil-Military Bargain, administrations have always sought to shape the military in their own image, beginning with President Thomas Jefferson, who sought to purge the Federalist influence from the military. The establishment of the U.S. Military Academy to commission Republican officers was only one step toward implementing this policy. President Andrew Jackson continued Jefferson’s enterprise, reducing the influence of a regular officer corps in favor of militia and volunteers.

Riots and protests broke out when black students started attending Little Rock Central High School in 1957. Former President Dwight D. Eisenhower placed the Arkansas National Guard under federal control and deployed troops to the school to protect the students and ensure the reluctant state and city governments of Arkansas upheld the law. (Corbis via Getty Images)

In fact, all modern presidents, including Harry Truman, Dwight Eisenhower, John F. Kennedy, Ronald Reagan, Barack Obama, and Joe Biden, have tried to shape the military to serve their political aims. Truman faced opposition from the military establishment for severely cutting the post-World War II defense budget. Eisenhower faced resistance from Army officers by shifting emphasis from conventional ground forces to nuclear deterrence. Officers opposed Obama on his Iran policy and decision to open ground combat billets to women. Biden instituted a diversity, equity, and inclusion regime throughout the military, despite widespread opposition from military officers. But the Constitution makes the president commander in chief. Accordingly, he should be able to count on obedience and loyalty on the part of the military.

Many observers persist in conflating “political” with “partisan.” Of course, the military must avoid partisanship. But the military is the political instrument of a political government, civil-military relations are necessarily political relations, and senior officers are political actors who can offer advice but have no right to impose military preferences on civilian leadership. Whether his critics like it or not, Trump’s actions may be debatable — they may be wrong — but they have not been unlawful or unconstitutional. The question is whether civilian control will prevail.

Domestic law enforcement

Trump’s critics claim that deploying National Guard and regular military forces to support federal law enforcement in some American cities violates civil-military norms, is unconstitutional, and is an irresponsible use of the professional military as police. But this claim is another example of historical ignorance. Although there are many good reasons to limit the use of the military in domestic affairs, U.S. troops have been so employed since the beginning of the republic. Indeed, the U.S. Army Historical Center has published three 400-page volumes on the use of the federal military forces in domestic affairs.

The authority of the president to use force in response to domestic disorder arises from the Constitution itself. Section 4 of Article IV reads: “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.”

Spectators watch as the USS Gravely enters Trinidad and Tobago’s Port of Spain on Oct. 26. The U.S. warship is in the region for joint exercises near the coast of Venezuela amid Washington’s campaign against alleged drug traffickers. (AFP via Getty Images)

At a minimum, the purpose of a republican government is to protect the rights of citizens to life, liberty, and property. Although the First Amendment to the Constitution guarantees “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” it does not protect riot, arson, and looting. It does not protect attacks on federal personnel and property.

Under Article II of the Constitution, the president, as commander in chief of the Army and the Navy, and of the militia when under federal control, has the authority to act against enemies, both foreign and domestic. In 1792, Congress passed two laws that permitted implementation of Congress’s constitutional power “to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions”: the Militia Act and the “Calling Forth” Act, which gave the president limited authority to employ the militia in the event of domestic emergencies.

In 1807, at the behest of Jefferson, troubled by his inability to use the regular Army and the militia to deal with the Burr conspiracy of 1805-07, Congress passed the Insurrection Act. Although intended as a tool for suppressing rebellion when circumstances “make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings,” it also declared the Army to be an enforcer of federal laws, not only as a separate force, but as a part of the posse comitatus. Accordingly, troops were often used in the antebellum period to enforce the fugitive slave laws and suppress domestic violence. The Fugitive Slave Act of 1850 permitted federal marshals to call on the posse comitatus to aid in returning a slave to his owner, and in 1854, President Franklin Pierce’s attorney general, Caleb Cushing, issued an opinion that included the Army in the posse comitatus:

“A marshal of the United States, when opposed in the execution of his duty, by unlawful combinations, has authority to summon the entire able-bodied force of his precinct, as a posse comitatus. The authority comprehends not only bystanders and other citizens generally, but any and all organized armed forces, whether militia of the states, or officers, soldiers, sailors, and marines of the United States.”

Troops were also used to suppress domestic violence between pro- and anti-slavery factions in Bleeding Kansas. Soldiers and Marines participated in the capture of abolitionist John Brown at Harpers Ferry, Virginia, in 1859.

After the Civil War, the Army was involved in supporting the Reconstruction governments in the southern states, and it was the Army’s role in preventing the intimidation of black voters and Republicans at southern polling places that led to the passage of the Posse Comitatus Act. In the election of 1876, President Ulysses Grant deployed Army units as a posse comitatus in support of federal marshals’ maintaining order at the polls. In that election, Rutherford Hayes defeated Samuel Tilden with the disputed electoral votes of South Carolina, Louisiana, and Florida. Southerners claimed that the Army had been misused to “rig” the election.

Despite the language of the Insurrection Act, presidents used this authority on five occasions during the 1950s and ’60s to counter resistance to desegregation decrees in the South. This authority was also the basis for federal support to California during the Los Angeles riots of 1992, when elements of an Army division and a Marine division augmented the California National Guard.

Indeed, those who have criticized Trump for threatening to use the National Guard and possibly the Marines “against the will of state governors” might want to consider this example: After the Supreme Court mandated school integration in 1954, some Southern governors refused to execute the law. In 1957, Arkansas Gov. Orval Faubus deployed the National Guard to defy federal authority by preventing the integration of Little Rock Central High School.

Eisenhower responded by placing the Arkansas National Guard under federal control and deploying soldiers of the 101st Airborne Division to enforce the law.

But what about the Posse Comitatus Act? Doesn’t this prohibit the use of the military in domestic affairs? Perhaps there is no law more misunderstood than the PCA. It does not constitute a bar to the use of the military in domestic affairs. And it certainly does not limit the president’s authority as commander in chief of the military to use both regular forces and the National Guard to enforce federal law. But it does mean that such troops cannot be used on the basis of any lesser authority than that of the president.

As noted earlier, before the passage of the PCA of 1878, a federal marshal could deputize Army units to enforce federal law. But the use of soldiers as a posse removed them from their own chain of command and placed them in the uncomfortable position of taking orders from local authorities who had an interest in the disputes that provoked the unrest in the first place. As a result, many officers came to believe that the involvement of the Army in domestic policing was corrupting the institution.

The fact is that the PCA corrected a flaw in the Insurrection Act by prohibiting the use of the military to aid civil authorities in enforcing the law or suppressing civil disturbances, except in cases and under circumstances expressly authorized by the Constitution or by an act of Congress. As John Brinkerhoff, an authority on the use of the military in domestic affairs, wrote in 2002:

All that [the PCA] really did was to repeal a doctrine whose only substantial foundation was an opinion by an attorney general, and one that had never been tested in the courts. The president’s power to use both regulars and militia remained undisturbed by the Posse Comitatus Act. … But the Posse Comitatus Act did mean that troops could not be used on any lesser authority than that of the president and he must issue a “cease and desist” proclamation before he did so.

Brinkerhoff concluded by observing that commanders in the field would no longer have any discretion when called upon by “lesser authority” but must wait for orders from Washington.

Drug trafficking

Critics charge Trump with violating both domestic and international law by using the military to target drug cartels and drug runners. Once again, they claim that his actions are unprecedented. But while the militarization of the drug war in Latin America has been controversial, it is far from unprecedented.

For example, as far back as 1986, a U.S. Army detachment, supported by helicopters, participated in an attack on a drug processing facility in Bolivia. And in 1993, President Bill Clinton issued a presidential decision directive on counternarcotics in the Western Hemisphere, assigning a substantial role in drug interdiction to the military.

Some contend that Trump is staking out dangerous new territory by using military force against drug trafficking in the Caribbean. Is he? His drug policy may be controversial. It may be wrong, but it is not unprecedented. Indeed, his interpretation of what constitutes the boundary of his military authority is well within historical norms.

But what about congressional approval for the use of force against narcotraffickers? Again, while debatable, it is comparable to the Obama administration’s unapproved war in Libya, the Biden administration’s attacks on the Houthis in Yemen, or indeed Jefferson’s attack on the Barbary pirates, all of which were taken without congressional approval. If we look at the historical record, Trump’s actions in the Caribbean are well within U.S. political norms.

WHAT’S IN A NAME? THE DEPARTMENT OF DEFENSE BECOMES THE DEPARTMENT OF WAR

I am on record opposing proposals to use the military in the “war” on drugs or normalize the employment of U.S. forces in domestic law enforcement, but the fact is that Trump has the constitutional authority to do so. The historical record also supports his actions in the international arena. Ultimately, limitations on both are not constitutional in nature. They are prudential.

Restoring healthy civil-military relations

To argue that Trump alone has violated sacred civil-military norms is lazy and dishonest. The undeniable fact is that multiple parties share responsibility for the toxic state of today’s civil-military relations. The missing element has been trust, the mutual respect and understanding between Trump and military leaders that enables the exchange of candid views and perspectives as part of the decision-making process. If we are to reestablish healthy civil-military relations in the country, civilian policymakers, especially the president, and the military need to reexamine their relationship. Mutual trust ultimately lies at the heart of healthy civil-military relations. Part of that trust is the recognition that loyalty to the commander in chief is not a violation of the Constitution itself.

Mackubin Owens, a retired Marine and former Naval War College professor, is a senior fellow of the Foreign Policy Research Institute.