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The Marines, the Coast Guard, and the Constitution:

The same discussion list that prompted Ilya's post raised the question whether the Coast Guard is constitutional. The answer to that strikes me as simple — the Coast Guard is a naval force, and as such is well within Congress's power to "provide and maintain a Navy." That Congress may choose to break the Navy down into two departments under two different heads is not, I think, a problem: Both of them, put together, would constitute the constitutionally sanctioned Navy.

The tougher conceptual question is whether the Marines can constitutionally be considered part of the constitutionally specified Navy (whether or not they are part of a federal agency labeled the Navy), or must be seen as falling under the constitutional head of "Armies." In either event they'd be constitutional, but if they are treated under the head of "Armies," then they'd have to be funded using appropriations that are for no longer than two years; if they are treated under the head of "Navy," they can be funded under unlimited-length appropriations. Recall that the relevant Congressional powers are:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy.

I don't know the answer, but I thought I'd flag the question (recognizing that it is of little practical importance, especially these days).

UPDATE: Some comments point out the long history of the Marines as a branch of the Navy, stemming from the Marines' having historically been sea-borne troops.

Nonetheless, the reason for my question is that today (as I understand it), the Marines often operate well away from all coasts, and are functionally a land fighting force.

My (somewhat vague) recollection is that the constitutional distinction between armies and the navy stems from the fact that Englishmen of the time -- including the American variety -- saw land-based forces as much more dangerous to domestic liberty than sea-based forces, and sea-based forces as much more important to day-to-day national defense. That's also why there was lots of concern about a standing army, but not about a standing navy. Modern Marines are in this respect at least potentially more like "armies" than like the "navy"; that's why the question I pose is theoretically nontrivial.

Not a con law prof:
Could you and Ilya tell us a bit about the context in which these issues were raised? Was someone making a serious argument that these issues undermine originalism, or was it just light-hearted chatter?
1.28.2007 9:14pm
Sarah (mail) (www):
If the Coast Guard is a "Navy," but it doesn't have the word "navy" or "naval" anywhere in its name, and it doesn't use the tools generally available to "navies" in the 18th century (I know the Coast Guard Academy has a traditional sailing vessel, but last I checked, the majority of their craft run on diesel fuel, and their officers and enlisted personnel carry pistols and/or flashlights, but never swords or old-school lanterns,) I'm having a really hard time understanding how the Air Force isn't allowed to be an "Army." I mean, if it's not the names and its not the tools that disqualifies the department, then what's left??

Especially when the department we call the "Army" uses many of the same tools (planes, helicopters) that warrant calling the Air Force, well, an "air" force. I can't imagine the difference between fixed wing and non-fixed wing craft can find its way back into a debate over Constitutional textualism...
1.28.2007 9:15pm
Lee Rudofsky (mail):
See Note, Recapturing the War Power, 119 Harv. L. Rev. 1815 (Apr. 2006).
1.28.2007 9:20pm
Pine_Tree (mail):
The Marine Corps is not separate from the Navy in the same way that an army is. The Marine Corps is (and at the time of the writing was well understood to be) a part of a Navy.
1.28.2007 9:22pm
Eugene Volokh (www):
Sarah: The Air Force question is at least conceptually interesting because, as best I can tell from dictionaries, "army" was understood in the late 1700s to mean land forces, and "navy" to mean water-borne forces. A navy that uses diesel fuel is still a water-borne force; a water-borne force that is called a Coast Guard is still a water-borne force, and thus fits within the constitutional term "navy"; but an air force is neither a land force nor a water-borne force, so there is a potential problem.

It does not in fact prove to be a problem, for reasons that Ilya mentions, and likely also for others. But at least it's a potential problem in a way that diesel boats in navies are not.
1.28.2007 9:23pm
jrman:
The Marines are considered a "Naval Force." If there is nothing in the constitution that prevents congress from breaking the naval forces down into THE Navy and the USCG then why can't they also break them (either) down into a force of ships and a naval infantry/armor/artillery/etc?
1.28.2007 9:29pm
Boalt 3L:
The constitution uses the singular when talking about the Navy, but talks about plural "Armies". Does this suggest that the Navy must be a single organization? If it doesn't, then why is one plural and one singular?
1.28.2007 10:05pm
Posnerposer (mail):
The marines are a "department" of the navy and "hitched rides" on our ships when I was in the navy. Historically, the marines were part of the British Navy, the fighting part that boarded enemy ships, conducted land raids, and kept shipboard order. They are described as a "naval infantry". Also, I believe that since the Constitution most likely incorporated the understanding of marines from the British Royal Marines, which are a department of the Royal Navy, then the "original intent" of providing and maintaining a navy would support maintaining the Marines. Also, the historic use of the Marines in our country would support that position.
1.28.2007 10:16pm
Ilya Somin:
Could you and Ilya tell us a bit about the context in which these issues were raised? Was someone making a serious argument that these issues undermine originalism, or was it just light-hearted chatter?

No, it wasn't just light-hearted chatter or a joke. The Air Force issue is a standard criticism of originalism and textualism. The Coast Guard and Marines issues were raised in the Conlawprof discussion as an outgrowth of the debate over the Air Force.
1.28.2007 11:02pm
jdmurray:
I'm not a lawyer or professor, but it seems unlikely to me that there would be a constitutional issue with the Coast Guard.

According to the FAQ on the USCG's history site, the service was originally set up as part under the Treasury Department to enforce customs laws. Considering that tariffs were the primary Federal revenue source at the time, it may have been more analogous to the IRS than the Navy.

In war time, it has been temporarily placed under the Navy Department, which certainly has constitutional authority. Those are the only times it has been part of the Department of Defense.

Today it is part of the Department of Homeland Security, along with its original parent, the Customs Service.
1.28.2007 11:06pm
jdmurray:
er "...set up under..."
1.28.2007 11:09pm
Charles Thomas (mail) (www):
A little history might shed some light. The Coast Guard came into being NOT as an armed force, but as a law enforcement agency of the Treasury known as the United States Revenue Cutter Service. The Revenue Cutters enforced customs and tariffs. There was a separate service known as the United States Lifesaving Service that performed rescue operations at sea. These two services merged to become the USCG in 1915.

The Marines were modeled on the Royal Marines, a sea-borne soldiers. As such, they answered to the Royal Navy, and existed outside the Royal Army command chain. There could be no Royal Marines without the Royal Navy, and it was within that context that the USMC was formed.

Constitutionally, I don't think there is any problem at all with either organization. The USCG remains to this day principally a law enforcement and lifesaving agency (although I confess I don't know if that has changed now that they are under Homeland Security). The Marines remain under the control of the Secretary of the Navy.
1.28.2007 11:12pm
Bill Poser (mail) (www):
Boalt 3L: I think that the reason for "armies" but "navy" is that "army" is both the cover term for the land-based forces but also the term used for its largest components. "the army" may consist of multiple "armies". In the Civil War, for example, one reads of "The Army of the Potomac", "The Army of the Southwest", and so forth. The navy, on the other hand, is generally thought of as unitary. A single country does not have "navies". The first order division of the navy is into "fleets".
1.28.2007 11:13pm
CDU (mail):
As jdmurry mentioned, the Coast Guard was originally part of the Treasury Department. The Revenue Cutter Service was founded in 1790 and predates the actually U.S. Navy. It gradually picked up other missions beyond tariff enforcement, merging with the Life-Saving Service in 1915 to form the Coast Guard, adding the Lighthouse Service in 1939, and the Bureau of Marine Inspection and Navigation in 1942.

So if you want constitutional justification for the Coast Guard you can look a lot of other places besides the Navy clause. For instance, the constitution gives congress the power to collect duties and regulate commerce with foreign nations and to punish piracy and felonies on the high seas.
1.28.2007 11:22pm
straightarrow:
Might I remind some so caught up in semantics that Marine refers to the sea.
1.28.2007 11:24pm
Lev:
So. There was this guy I knew, who said he enlisted in the Coast Guard in WW2 because he thought he would discharge his duty in a safe manner etc.


"They didn't tell me the coast I would be guarding was Japan's."


If the Air Force reverted back to the Army Air Force, would that eliminate the problem?
1.28.2007 11:33pm
Paxti:
The term "Leatherneck" refers to the high leather collars early Marines wore to ward off sword blows while boarding ships. Though they have developed an independent and storied history, they do fall under the department of the Navy.

The men's department.
1.28.2007 11:57pm
scouser (mail):
The 1794 congressional statute authorizing the Navy specifies a complement of Marine officers and enlisted for each ship above a certain size. The Marine Corps was then created by a 1798 statute which refers to the "marines who have been enlisted, or are authorized to be raised, for the naval armament." (See, hqinet001.hqmc.usmc.mil/hd/Historical/speeches.htm). The only way Eugene's Constitutional issue could now arise is if the 1794 Navy act, which was to expire at the cessation of the Barbary Coast campaign, was not properly extended and that I do not know.
I do know, however, that tucked away in the 1798 Marine act is a section that "authorizes these same Marines to wallop the living crap out of all Naval personnel utilizing the words 'hitched rides on our ships' or words to the same or similar effect, except when the bridge of such Naval vessel is decorated like a taxicab in which case everything is cool." In case anyone was curious.
1.29.2007 12:05am
Paxti:

I do know, however, that tucked away in the 1798 Marine act is a section that "authorizes these same Marines to wallop the living crap out of all Naval personnel utilizing the words 'hitched rides on our ships' or words to the same or similar effect, except when the bridge of such Naval vessel is decorated like a taxicab in which case everything is cool." In case anyone was curious.


Haha:)
1.29.2007 12:08am
A.S.:
According to the FAQ on the USCG's history site, the service was originally set up as part under the Treasury Department to enforce customs laws.

As noted above, the Coast Guard now has a lot of other duties beside enforcing customs. But I suppose that the duties are all involve interstate commerce, right? That's the Constitutional basis for all of the other federal law enforcement agencies, such as the FBI and Homeland Security, I think.

Of course, that "interstate commerce" thing has been kinda controversial too...
1.29.2007 1:25am
Eugene Volokh (www):
As I understand it, the Marines today often operate well away from all coasts. They are functionally a land fighting force; hence the question I posed.

I'm not by any means an expert on this question, but my vague recollection is that the constitutional distinction between armies and the navy stems from the fact that Englishmen of the time (including the American variety) saw land-based forces as much more dangerous to domestic liberty than sea-based forces, and sea-based forces as much more important to day-to-day national defense. That's also why there was lots of concern about a standing army, but not about a standing navy. Modern Marines are in this respect at least potentially more like "armies" than like the "navy."
1.29.2007 1:31am
Perseus (mail):
The hostility to standing armies was prevalent among (Whig) Britishmen and Americans, who viewed them as instruments of tyranny. For example, Cato's Letters No. 94 is titled, "Against Standing Armies" (while No. 64 is titled, "Trade and Naval Power the Offspring of Civil Liberty only, and cannot subsist without it").

During the Constitutional Convention, the issue of standing armies was raised by Gerry (Aug. 18), who "thought an army dangerous in time of peace &could never consent to a power to keep up an indefinite number" (and therefore suggested a limit on the number of troops during time of peace).
1.29.2007 5:32am
Al Maviva (mail) (www):
But I suppose that the duties are all involve interstate commerce, right?

At times, the Coast Guard will serve under the operational control of the Department of Defense, as in taking an active combat role in defending the U.S. in WWII, or assisting the Navy in clearing enemy harbors and rendering them safe for shipping (as in GWI and OIF). It's members are subject to the Uniform Code of Military Justice. I believe that the Coast Guard would cite to the Commerce Clause as constitutional authority for most of its domestic activities (waterways being channels of interstate and international commerce) and to the two navy clauses* as authority for acting in a national defense capacity under DOD opcon.



*To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
1.29.2007 7:55am
Tim (mail):
"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years"

Given the length of some of our recent military conflicts. The end of the sentence can be more interesting than the first.
1.29.2007 8:42am
rbj:
Art. 1 sec. 8 also states "To define and punish piracies and felonies committed on the high seas" so if you are going to use police powers, it might make more sense to have a water born police force (Coast Guard) rather than using a military force (Navy)

What is an interesting issue is whether it is ok, under the Posse Comitatus Act, to at times transfer the CG to be under the Defense Department. (I think with the reorganization, that doesn't happen anymore; the CG stays under DHS.)
1.29.2007 8:53am
J. F. Thomas (mail):
The U.S. Marine Corps officially considers its birthday to be November 10, 1775, when the 2nd Continental Congress authorized 2 Battalions of Marines. So the writers of the constitution were fully aware that a Navy included a Marine element.
1.29.2007 9:03am
Anderson (mail) (www):
As I understand it, the Marines today often operate well away from all coasts. They are functionally a land fighting force; hence the question I posed.

Exactly, &EV's is a good point. I can guaran-dam-tee ya that quite a few Founders would have viewed today's Marines as a massive exploitation of the loophole in "marines" as a naval complement of onboard soldiers.

Of course, those same Founders would have coronaries at so much else that goes on today, that their indignation would be short-lived.

Still, it's amusing to see just when "living Constitution" becomes a little easier to stomach.
1.29.2007 9:25am
jallgor (mail):
"As I understand it, the Marines today often operate well away from all coasts. They are functionally a land fighting force; hence the question I posed."

I find this point interesting and I have always wondered how the original concept of Marines has changed into the fighting force as we know them today. I assume that much of it has to with the development of advanced amphibious landing tactics in WWII but I wonder why the Marines were tasked with that role. What was the Marine Corps like in WWI? Did the Brits use the Royal Marines for the amphibious landings in Turkey for example?
This is the progession as I know it. For a couple hundred years or more Marines are for ship to ship fighting and mainting order on board. Then in WWII they become an amphibious fighting force used to establish and maintain beach heads. Then at some point they seem to have become our shock troops who are thrown into the beginning of every combat whether it involves amphibious landings or not.
Am I wrong here? If not, does anyone know how this came about or have a good book on the subject?
1.29.2007 10:54am
rbj:
jallgor,
The US Marine Corp did see land action vs. the Barbary Pirates in the early 1800s.
1.29.2007 11:09am
Jarhead315 (mail):

This is the progession as I know it. For a couple hundred years or more Marines are for ship to ship fighting and mainting order on board. Then in WWII they become an amphibious fighting force used to establish and maintain beach heads. Then at some point they seem to have become our shock troops who are thrown into the beginning of every combat whether it involves amphibious landings or not.


They still do quite a bit of sea-based deployments, called a "pump" by the grunts. most Marines do 6 month deployments aboard ship every 2-3 years. The Marine Corps is definitely part of the Department of the Navy. The secretary of the Navy is in the chain of command. During Vietnam, it was common for Marine Commanders in the field to appeal MACV's decisions to CINCPAC (obviously, this caused no small amount of friction between the Marines and Army).

Technology plays a role in the modern Marine Corps. The advent of the helicopter more or less rendered the amphibious landing obsolete, but, a MAGTF (a Marine air ground task force) can deploy by ship and operate for a month without resupply, thanks to the Naval deployments and Maritime pre-positioning of supplies and material. So, while the hostile amphibious landing is a thing of the past, the amphibious component is alive and well.

Rarely does the two most defining events in my life-the Marine Corps and the law-intersect. A very interesting thread, IMO.
1.29.2007 11:49am
J. F. Thomas (mail):
What was the Marine Corps like in WWI? Did the Brits use the Royal Marines for the amphibious landings in Turkey for example?

Both the U.S. and British Royal Marines participated extensively in the mostly land campaigns of WWI.
1.29.2007 12:10pm
Dave Wangen (mail):
"I find this point interesting and I have always wondered how the original concept of Marines has changed into the fighting force as we know them today. I assume that much of it has to with the development of advanced amphibious landing tactics in WWII but I wonder why the Marines were tasked with that role."

Marines had always had a landing mission. It was not uncommon, back in the days of "Wooden ships and Iron men", for a warship to land a force of troops for raids, or to storm a fortress threatening the ship, or for various other reasons. These landings would be led by the ship's Marine complement, augmented by whatever seamen from the ship were needed to round out the necessary force.
1.29.2007 1:14pm
paulhager (mail) (www):
Acknowledging all of the statements regarding the progression of the role of the Marines from shipboard fighters to amphibious land warriors, were I on the Supreme Court (an impossibility for many, many reasons, not the least of which is that I never went to law school) I would conclude that the Marine Corps should be treated exactly like the Army. (Note: I don't know how the law treats the Marines with respect to funding. Maybe the Marines are already treated like the Army.)

Federalist #41 explains why the Navy is treated differently from the Army:

The palpable necessity of the power to provide and maintain a navy has protected that part of the Constitution against a spirit of censure, which has spared few other parts. It must, indeed, be numbered among the greatest blessings of America, that as her Union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great Britain. The batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties.

The essence of the argument has been overcome by technological events: the modern navy can project coercive power inland, in the service of a "perfidious" or other government, to essentially any place in the U.S. In the 18th century, the Navy could project power only a few hundred yards inland. Even so, I think originalism requires that Congress continue to treat the Navy, generally speaking, the same way it did after the Constitution was ratified. If there is good reason to change this, amend the Constitution.

The Marines, however, clearly fall into the category of Army. There is no question that footsoldiers and their weaponry were and are potential instruments of tyranny. Once the function of the Marines began to increasingly include land operations AND the size of the force increased to the point that the potential existed for Marines to be used for purposes of a coup or imposing the edicts of a dictator, it is proper for Congress to treat the Marines in the same manner as the Army.
1.29.2007 1:32pm
Mikeyes (mail):
During WWII the Marines were tasked with developing amphibious warfare tactics and equipment (the Higgins boats for example) in the Pacific theater, but regular army troops were used more often. In Manchester's book about the Marines, he notes that there were only a few Marines in the landing on the Phillipines but when the photographers saw them they took their picture and the headlines read "Marines land in the Phillipines" even though 99% of the troops were Army. Any decent Marine Corps history will outline all of this for you.

In WWI the 5th and 6th regiments of Marines were part of the 2nd Division best known at Belleau Wood where their marksmanship skills won the day, especially if you are reading an Marine Corps history.

Marines are naval infantry which means that they are ready to deploy usually from ships and are often the first troops that the president sends to hot spots because they are often in the area to begin with ready to go. There is a distinct difference in training, philosophy, equipment, and attitude between the Marines and all other forces, just ask any Marine.

As an aside, the US Army maintains its own force of ships and boats which is quite large. But they are not Navy.
1.29.2007 1:35pm
Ted McClure (mail):
I submit that the Air Force is constitutional under any system of interpretation. It is a land-based force, like an army. Air Force aircraft are staged from air bases on land. Naval aviation (including Marine Corps aviation) is part of the Navy.

The Posse Comitatus Act has never been applied to the Navy, Marine Corps, or Coast Guard. It also has never been applied to the National Guard (militia) when under state control. DoD historically has applied it to the Air Force under the theory that the Air Force is a successor to the Army.

I suggest that the only parts of our armed forces subject to any constitutional question are the Reserves of the Army and Air Force. A militia by any other name is still a militia. However, at the time of the framing of our Constitution the system of placing surplus Regular Army officers on half-pay in peacetime, relieved from active duty but subject to recall, was already in place. If the Reserves are deemed to be the successors of those half-pay officers then there should be no question of their constitutionality.

However, quare, were half-pay officers considered to be members of the unorganized militia where they lived? Could they become members of the organized militia without resigning their Regular Army commissions?

What about FBI SWAT teams? Are they an "army" (albeit a tiny one)? I suggest that, as with the Coast Guard, we apply a law enforcement agency character to them, even though they have military characteristics.

Could the Framers have thought that time would stand still? That neither society nor technology would change? They recognized that society's attitude towards slavery was changing, explicitly providing a compromise structure for that change. Art. I, Section 9. They provided for amendments, although they may not have contemplated this many states involved in the process. Many were still alive to see the dramatic technology changes of the early 19th Century. Quare, did any of the Framers or the subsequent generation of observers (e.g., Joseph Story) comment on the impact of the steam engine on Constitutional interpretation?

In his Commentaries on the Constitution of the United States, Story makes a useful comment in the context of incidental and implied powers of Congress: "Let the end be legitimate; let it be within the scope of the constitution; and all means, which are appropriate, which are plainly adapted to the end, and which are not prohibited, but are consistent with the letter and the spirit of the instrument, are constitutional." Book III, Ch. XXIV, p. 441.
1.29.2007 1:44pm
JohnO (mail):
I have the agree with the comment that Marines are, to my understanding, permitted by statute to pound on anyone who refers to them as "hitching rides" on the Navy's boats. The same goes for those who fail to capitalize the term "Marine"
1.29.2007 2:38pm
Clayton E. Cramer (mail) (www):
The distinction in the Constitution between armies and navy was, as Professor observes above in a comment, because a navy has only a limited ability to project force inland. It could destroy small towns of the size of New York City or Boston, but only an army could operate for any great period of time inland. Hence the limitation on funding of armies for two years (the term of the House).

There is a very legitimate question as to whether the modern U.S. Navy, with its ability to rain destruction and death on any part of the U.S., would not qualify from a functional standpoint the same as a standing army.

Of course, there's an easy fix for this: amend the Constitution to explicitly recognize that all armed forces are subject to the limitations of Congressional authority to fund standing armies.
1.29.2007 3:01pm
Mark Field (mail):
In his Commentaries on the Constitution of the United States, Story makes a useful comment in the context of incidental and implied powers of Congress: "Let the end be legitimate; let it be within the scope of the constitution; and all means, which are appropriate, which are plainly adapted to the end, and which are not prohibited, but are consistent with the letter and the spirit of the instrument, are constitutional." Book III, Ch. XXIV, p. 441.

That's a quote from M'Culloch v. Maryland.
1.29.2007 3:10pm
Rich Rostrom (mail):
There was another very good reason to have different provisions for the organization and funding of the Army and Navy.

An "army" could be created practically overnight by calling out the "well-regulated militia". An army, at the time consisted, physically, of men with guns. Men and guns existed without the state's provision. All they had to know was how to march and shoot. (In theory; in practice, they needed drill, cannon were almost always needed, and so were professionally trained officers, hence the establishment of West Point. But the basics were still comparatively easy.)

A "navy" was very different. There had to be warships, which only the state could provide, which took years to build, and which required elaborate technical training to operate. While it was possible to supplement the regular Navy with privateers and such, there was no practical alternative to a "standing Navy".

For most of the history of the United States, the peacetime "standing Army" has been much, much smaller than the wartime army. The "standing Navy" has been comparable to, and even, at times, larger than the standing army, but always grew much less in wartime.

Finally, Naval forces sometimes operated in remote parts of the world, months of travel away. Such operations would be impossible if Navy funding could not be settled for long periods.
1.29.2007 3:49pm
Swabbiespook:

I have the agree with the comment that Marines are, to my understanding, permitted by statute to pound on anyone who refers to them as "hitching rides" on the Navy's boats. The same goes for those who fail to capitalize the term "Marine"




Marines when used in the general understanding does not need to be capitalized. If I was stating U.S. Marine Corps or Royal Marines, I would most certainly capitalize, as it is proper, and I have the utmost respect. However, I would like to see the Marines make their own ships or pilot them. Perhaps their bathtubs would have to suffice, if they owned or used any. But in all honesty, have many friends who were marines, and being a swabbie, I have to chide them. That is statutorily prescribed. From a safe distance, however.
1.30.2007 1:50pm
The Wine Commonsewer (mail) (www):
I dunno but every time I look at the Marine Corps seal it seems to say Department of the Navy on top of the Globe &Anchor with United States Marine Corps underneath. When I spent some time with Uncle Sams Misguided Children I noticed it was the Navy guys giving us shots.

OTOH, I never once set foot on a ship though I did get a few plane ride and once borrowed a jeep at Camp Pendleton. Maybe that' why there's so much confusion.

Besides, I thought Truman fixed all that abolish the USMC stuff.
2.1.2007 12:00pm