Stopping Executive Overreach in the U.S. Military: Congressional Approval for Judge Advocate General’s Dismissals

Writer: Connor “Joe” Daniels

Article Editor: Cassandra Torres

Associate Editors: Patrick Noble & Leona Rindle

I. Introduction

Pete Hegseth’s recent replacement of the Judge Advocates General (TJAGs), the top attorneys for each branch of the United States military, has exposed a longstanding vulnerability within United States military law.¹ The secretary of defense and the president each have the ability to bypass internal military procedure without congressional approval by dismissing TJAGs and executing military orders without regard for legality.² However, U.S. Supreme Court precedent could cease this practice. Humphrey’s Executor v. United States suggests Congress could serve as a mechanism for regulating military law’s neutrality within the JAG system.³ Accordingly, requiring congressional approval of TJAG firings is both possible and necessary as it would align with court precedent and reinforce proper checks and balances between military law and the executive branch, eliminating this circumvention of proper military law procedure. 

II. Administrative Actions

On February 1st, 2025, United States Secretary of Defense Pete Hegseth announced the opening of three TJAG positions in the American military and, as a result, the dismissals of the three current TJAG officers.⁴ The Navy TJAG, Vice Admiral Christopher French, had coincidentally just announced his retirement, meaning two of the replacements, Army TJAG Lt. Gen. Joseph B. Berger III and Navy TJAG Lt. Gen. Charles Plummer, were out-of-term firings.⁵ The Judge Advocate General position is inherently a sought-after, well-respected position with a four-year term limit, with terms that cycle differently compared to the presidential cycles.⁶ This allows for the TJAG to advise two presidents during their term, not just one. Furthermore, their appointment also requires Senate approval and other statutory requirements.⁷

After these firings, Hegseth said he aimed for new TJAGs “who give sound constitutional advice and don’t exist to be roadblocks to anything.”⁸ This statement contradicts the nature of the TJAG role. A TJAG, and JAGs in general, are active duty military members and thus are not allowed to have political affiliation.⁹ They advise military officials, commanders, and civilian officers within the Department of Defense on the legality of planned military actions to prevent breaking U.S. and/or international law.¹⁰ Thus, these dismissals and the subsequent appointments of TJAGs Hegseth seemingly desires to be more politically aligned with the Trump Administration expose a weakness in the appointment model that allows for the president to execute military orders without a nod to legality.¹¹ 

One such example is the Trump Administration’s authorization of lethal strikes in the Caribbean Sea and South American waters since July 2025.¹² National security and human rights specialists believe the strikes violate, among other statutes, Article 6 of the International Covenant on Civil and Political Rights,¹³ a United Nations treaty to which the U.S. is a member.¹⁴ This document and various International Court of Justice and U.S. government statutes establish both right-to-life and due process precedents contradictory to the strikes, showing how the Trump Administration is degrading legal precedent after the TJAG firings.¹⁵

III. The Legal Case for Congressional Approval of TJAGs

The illegal nature of the strikes in the Caribbean signifies the Trump Administration’s aim to push or break internal legal boundaries in the military with diminished internal resistance.¹⁶ This poses questions surrounding potential solutions to this breach of military neutrality.¹⁷ A practical solution is congressional approval of out-of-term TJAG dismissals. This would allow for an additional check on the president’s military power and, more specifically, a check on the president’s ability to push the limits of military law. Both Article I of the Constitution and the 1935 U.S. Supreme Court case Humphrey’s Executor v. United States support this check. 

This concept of congressional authority over military power has always existed in the Constitution.¹⁸ Despite recent claims of a unitary executive theory by the president,¹⁹ Congress is given much authority over the military by the Constitution and its Framers.²⁰ While the Constitution does give the president removal power over military officers, it specifies Congress can limit this authority by replacing it with various disciplinary mechanisms. These distinct, effective mechanisms are established by Article 1, Section 8 of the Constitution, where it is stated that “Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which [military society] shall be governed than it is when prescribing rules for [civilian society].”²¹ This section grants Congress the broad power to make rules for the governing of military bodies, supporting the concept of required congressional approval of out-of-term TJAG dismissals.²² 

Humphrey’s Executor establishes that Congress may restrict presidential removal power when constitutionally necessary and that protections for neutral, quasi-judicial government entities are permissible. In Humphrey’s, the Court found that the Federal Trade Commission (FTC) acts as a “master of chancery,” today known as a magistrate, through which it effectuates quasi-judicial powers as an agency of the judicial department of the government.²³ Because of this quasi-judicial structure, the Court decided it was necessary for Congress to isolate the FTC from political pressure. This precedent should similarly allot isolation from executive branch partisan pressure to JAGs, and more specifically TJAGs. Certain JAGs are appointed to handle cases in magistrate courts and work with magistrates similar to those in Humphrey’s.²⁴ These magistrates serve the same role as the agency of the judicial department of government. However, JAGs also serve in non-magistrative-related positions, where they still utilize quasi-judicial power to advise executive officials on military action legality. Furthermore, JAGs also hear cases as military judges over the courts-martial are granted protections ensuring nonpartisanship.²⁵ Both groups fit the description of non-partisan, quasi-judicial entities. Therefore, Humphrey’s Executor permits additional insulation from executive politics by requiring congressional approval for out-of-term dismissals. 

IV. Conclusion

More broadly, the concept of congressional authority over military power has always existed in the Constitution.²⁶ Despite recent claims of a unitary executive theory by the president,²⁷ Congress is given much authority over the military by the Constitution and its Framers.²⁸ While the Constitution does give the president removal power over military officers, it specifies that Congress can limit this authority by replacing it with various disciplinary mechanisms. These distinct, effective mechanisms are established by Article I, Section 8 of the Constitution JAGs, and more specifically TJAGs, work in close proximity with magistrates and work in quasi-judicial positions.²⁹ The Court sees these quasi-judicial positions as necessary to isolate from political pressure in order to ensure the role functions without compromising pressure from outside parties. Furthermore, TJAGs can be counted as quasi-judicial. While they are not the subject matter of Humphrey’s Executor, if taken into their quasi-judicial function, there is a case to support a required congressional approval of their removal. When combining this with the Article I congressional rights to oversee military governance, congressional approval of out-of-term TJAG dismissals is both practical and permissible.

1. John C. Johnson, The Air Force Judge Advocate: An Independent Legal Advisor, 34 Reporter 18 (Summer 2007). ↩︎
2. Lesley Wexler & Anthony Ghiotto, Let’s Kill All the Lawyers: The Friday Night Massacre of Judge Advocates General, Verdict (Mar. 4, 2025), https://verdict.justia.com/2025/03/04/lets-kill-all-the-lawyers-the-friday-night-massacre-of-judge-advocates-general (on file with the Undergraduate Law Review at FSU). ↩︎
3. Humphrey’s Executor v. United States, 295 U.S. 602 (1935). ↩︎
4. Lolita C. Baldor, Hegseth says he fired the top military lawyers because they weren’t well suited for the jobs, AP News (Feb. 2025), https://apnews.com/article/pentagon-hegseth-firing-chairman-lawyers-6bead3346b1210e45e77648e6cbc3599 (on file with the Undergraduate Law Review at FSU). ↩︎
5. Id. ↩︎
6. Judge Advocate General, Deputy Judge Advocate General, and general officers of Judge Advocate General’s Corps: appointment; duties, 10 U.S.C. § 7037 (1956). ↩︎
7. Wexler & Ghiotto, supra note 2. ↩︎
8. Bennett et al., Retired rear admiral fears Trump replacing military leaders with those ‘loyal to him’, PBS (Feb. 2025), https://www.pbs.org/newshour/show/retired-rear-admiral-fears-trump-replacing-military-leaders-with-those-loyal-to-him (on file with the Undergraduate Law Review at FSU). ↩︎
9. U.S.  Dep’t of Def., Directive No. 1344.10, Political Activities by Members of the Armed Forces (2008) [hereinafter DoDD 1344.10]. ↩︎
10. Judge Advocate General’s Corps (2019), https://api.army.mil/e2/c/downloads/2022/08/08/4cbca29d/2-jag-corps-da-pam-600-3.pdf. ↩︎
11. Bennett et al., supra note 8. ↩︎
12. Jazzlee Cerritos, Authority and Overreach: The Illegality of U.S. Military Strikes in the Caribbean Sea, Colum. L. Rev. (2025), https://www.culawreview.org/current-events-2/authority-and-overreach-the-illegality-of-us-military-strikes-in-the-caribbean-sea (on file with the Undergraduate Law Review at FSU). These strikes have killed at least 157 alleged terrorists and have been met with questions surrounding legality and procedure, considering these boats did not strike first or initiate conflict. See Reuters, US strikes against suspected drug boats have killed 157 people, official says (2026). ↩︎
13. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. ↩︎
14. Michael Schmitt & Marko Milanovic, The International Law Obligation to Investigate the Boat Strikes, Just Security (Dec. 2025), https://www.justsecurity.org/127136/Congressionalinternational-law-obligation-boat-strikes/ (on file with the Undergraduate Law Review at FSU). The ICCPR is a United Nations Treaty, an organization the U.S. is a member of. ↩︎
15. Schmitt & Milanociv, supra note 13; Shiel et al., Murder by Drone: The Legal and Moral Stakes of the Caribbean Strikes, Just Security (Sep. 2025), https://www.justsecurity.org/120794/legal-moral-stakes-caribbean-strike/ (on file with the Undergraduate Law Review at FSU). ↩︎
16. Sarah Harrison & Mark Nevitt, The Caribbean Strikes and the Collapse of Legal Oversight in U.S. Military Operations, Just Security (Oct. 2025). https://www.justsecurity.org/123172/caribbean-strikes-legal-oversight-us-military/ (on file with the Undergraduate Law Review at FSU). ↩︎
17. Mark Nevitt, How the Pentagon Personnel Firings Threaten Our Apolitical Military, Just Security (Feb. 2025), https://www.justsecurity.org/108284/how-the-pentagon-personnel-firings-threaten-our-apolitical-military/ (on file with the Undergraduate Law Review at FSU). ↩︎
18. U.S. Const. art. I § 8, cl. 14. ↩︎
19. Joseph K. Natali, The Unitary Executive Theory in Practice: Bureaucratic Structure as an Obstacle to Executive Unilateralism, 79 Pol. Sci. Q. 204 (2025). Natali recognizes that unitary executive theory (UET) can be articulated in different ways, but broadly it states that all executive power, including power over the federal bureaucracy, rests exclusively with the president. UET presumes only constitutional limitations can restrict presidential power over the bureaucracy and any attempt to otherwise restrict presidential power is unconstitutional. ↩︎
20. Zachary S. Price, Congress’s Power over Military Offices, 99 Tex. L. Rev. 494 (2021). ↩︎
21. U.S. Const. art. I § 8, cl. 14. ↩︎
22. Jennifer K. Elsea, Defense Primer: Congress’s Constitutional Authority with Regard to the Armed Forces (2026), https://www.congress.gov/crs-product/IF10535 (on file with the Undergraduate Law Review at FSU). ↩︎
23. Humphrey’s Executor, 295 U.S. 602 (1935). ↩︎
24. Captain David K. Rolek & Captain Gabriel W. Bush, How to Achieve Success in Federal Magistrate Court, Air Force Judge Advocate General Corps (2019), https://www.afjag.af.mil/Post/Article-Display/Article/4369828/how-to-achieve-success-in-federal-magistrate-court/ (on file with the Undergraduate Law Review at FSU). ↩︎
25. Unlawfully influencing action of court, 10 U.S.C. § 837 (1956) ↩︎
26. U.S. Const. art. I § 8, cl. 14. ↩︎
27. Natali, supra note 18. ↩︎
28. Price, supra note 19. ↩︎
29. U.S. Const. art. I § 8, cl. 14. ↩︎