With Chevron Dead, It’s Time To Challenge the Feres Doctrine

Last month the Supreme Court ended the 40-year precedent known as the Chevron Doctrine. When the Chevron v. Natural Resources Defense Council ruling was handed down in 1984 there was nil understanding that it would enable the burgeoning 20^th Century administrative state to dig its foundation down to societal bedrock. This legal precedent tied the hands of lower courts over the next 40 years, forcing them to defer to administrative agencies on how to interpret the law in areas that congress did not offer crystal clarity.

Chevron deserved to go – now for another target

Chevron opened the door for succeeding precedents like the 2005 ruling in the National Cable & Telecommunications Ass’n v. Brand X Internet Services case, which enabled governmental agencies to “override judicial constructions of ambiguous federal laws by promulgating their own conflicting, yet authoritative, interpretations.” In 2020, Supreme Court Associate Justice Clarence Thomas, who wrote the Brand X opinion, lamented the ruling, rightly noting that it further ensconced judicial doctrine to the point of “administrative absolutism.” In essence, Chevron, and subsequent precedent under its umbrella, allowed presidential administrations to legislate around congress through cabinet agency directors.

Though Chevron’s demise is a victory for ordered liberty, a significant portion of the nation’s citizenry feels no relief in its absence: our fellow citizens serving in the military. As commander of the Continental Army, George Washington said that one does not lay aside the citizen in order to become the soldier. His words are etched in stone at Arlington National Cemetery but are not spoken of in today’s military institution. His liberty-inspired viewpoint has been long lost not only to the military as a ‘professional’ institution, but to the courts as well.

Tradition has trumped the Constitution where the military is concerned

Though the military functions according to its own code of law—known as the Uniform Code of Military Justice—that code is theoretically subordinate to the U.S. Constitution and federal legislation. Nevertheless, federal courts give safe harbor for military commanders to violate military members’ basic constitutional rights, owing to a tradition acknowledged by Supreme Court Chief Justice Earl Warren of being hands off when it comes to questioning the military chain of command. That tradition is reinforced judicially through the Feres Doctrine. Resulting from the 1950 Supreme Court ruling in Feres v. United States, this dark precedent prevents military members from suing the U.S. Government for injuries incurred on active duty.

With the exception of pharmaceuticals that produce Covid gene therapy shots, no other line of work is afforded such protections. Thus, military commanders have been legally shielded from the consequences of their decisions over American citizens in the ranks for over seven decades now. In a rare moment of judicial sanity, the 9th U.S. Circuit Court of Appeals ruled that the Feres Doctrine does not prevent a military member from suing another military member for committing sexual assault, the judges noting that “we are confident in our determination that this act of alleged sexual assault was not incident to military service.” This came the year after the Supreme Court refused to hear a case involving a woman who was raped during her time as a cadet at the U.S. Military Academy.

Prior history of military authority over civilians in-country

The totalitarianism of military culture is inward focused at present. However, there have been times in American history when military commanders exercised authority over civilians—a power they wielded enthusiastically. A very small listing of such dark incidents in American military history includes forcing loyal citizens from their homes and into imprisonment camps during WWII, arresting legislators and journalists during the U.S. Civil War, and forcing families off of multi-generational farms—and destroying entire communities—in order to build an increasing number of bases that grew the power and financial holdings of the military-industrial complex. These are among aspects of American military history left out of creeds signaling “selfless service to the nation.”

Though at present, American cities and states are not being administered by generals as military districts—as has happened in the past—members of today’s military still live under a totalitarian authority structure, because the courts continue a long-standing tradition of letting the most heavily armed of the cabinet departments operate with legal autonomy. Pithy statements about troops ‘knowing what they signed up for’ do not make a legitimate legal excuse for the contemporary defense department to override their citizenship.

With Chevron out, a focus on liberty can succeed

With Chevron gone, liberty-focused cases are likely to see a 40-50% chance at succeeding in court, versus the 11% chance under the now deceased doctrine, according to a presentation given by New Civil Liberties Alliance President Mark Chenoweth at Benedictine College earlier this year. But as the slogan goes in military circles, “the Army goes rolling along.”

At present, members of the military remain beholden to what Justice Warren called the “tradition of our country, from the time of the revolution until now, has supported the military establishment’s broad power to deal with its own personnel.” This is especially pronounced in the area of free speech. Writing for Hastings Law Journal as far back as 1971, assistant professor of law at Indiana University Edward Sherman wrote that military courts have largely ignored constitutionality and case law, preferring instead to create a “distinctive” philosophy in which Washington’s perspective on the citizen-soldier is lost.

Military members have no recourse

When the rights of military members are violated, they have virtually no recourse within the system, despite the significant portion of taxpayer resources used to fund a litany of investigative agencies. The military service branches promulgate an armada of police and criminal investigative commands to employ against military members, an aura of complete control always being dangled above their heads to encourage compliance. In theory, the host of Inspector General (IG) offices across the military command structure exist to hold abusive military authorities accountable. But the IG has no power to act. Its agents merely investigate and report to commanders, who are often the perpetrators of injustice against their subordinates.

It takes the exceptionally rare event (usually of sexual or fiscal nature) for higher-level commanders to hold other commanders to account for abuse of authority or deprivation of rights. But even these kind of cases have been so badly bungled by this generation’s military brass that congress intervened in 2023 to remove military commanders’ authority to adjudicate accusations of sexual abuse, and other serious crimes. Even in the rare cases where a commander’s injustice is overturned by the military or civil legal system, the offending commander suffers no accountability, no repercussions for the unlawful suffering he or she caused to a fellow citizen in uniform. Thus totalitarian-minded commanders have little reason to worry. If they lose an ill-brought case, they won’t lose rank or position for it.

Veterans not safe

The cynic reading this might reply by saying something like “well, just get out then.” Yet even as a civilian, veterans are not safe from the military institution’s reach. The courts allow the service branches to recall retired military members and Navy-Marine Corps Fleet Reservists if a commander doesn’t feel like civilian prosecution is going to achieve the desired result.

During my time as a company commander in Alaska, I saw firsthand how happily some Army prosecutors seek to crush military members for minor infractions, while taking a casual approach to major crimes. When I questioned techniques that trial counselors used against my soldiers, they had my cases removed to a higher level for adjudication, telling me that it wasn’t my place to ask questions—but to rubber stamp attorney recommendations. The colonel who ran that section of attorneys bragged at a hail & farewell dinner how she frequently went over commanders’ heads on matters of military justice. The rule seemingly used by her subordinate attorneys was to seek that option when commanders were not being sufficiently ruthless to the people under their charge, in the eyes of this group of rogue military prosecutors.

From Chevron to Feres

In the era of Covid shot mandates, several lawsuits challenging the defense department’s unchecked authority began working through the courts. Unfortunately, most of those cases were dismissed after the 2023 National Defense Authorization Act became law, requiring Defense Secretary Lloyd Austin to rescind his unlawful mandate.

However, one case remains: Seals v. Biden. Understandably, the Pentagon wishes to settle this case. The current proposed settlement does nothing for the plaintiffs, ensures a payout to their litigating attorneys, and lets the Department of the Navy and the senior officers who persecuted subordinates over the Covid shot to walk away with no consequence whatsoever. This case may be the once-in-a-lifetime opportunity to again challenge the Feres Doctrine. Liberty-minded Americans who claim to support the troops should prove it in action by standing with the troops. You can do that by demanding legislative action and supporting legal challenges to military abuse of authority.

Cheering for those in uniform at parades and putting ‘we support the troops’ bumper stickers on your car makes little difference if civilians remain content to do nothing of practical value to reign in today’s unaccountable military complex. The death of the Chevron doctrine should embolden an end to court deference to the military and renew efforts to bring legislation and legal actions that can begin to chip away at the government’s deference to the unelected and unaccountable military caste. The time is right to turn this ship. Grab an oar.

This article was originally published by RealClearDefense and made available via RealClearWire.