Reply #19: Contract Law [View All]

ah yes. The bastion of 1L boredom. :P

I will agree that it's a shady area to analyze. However, the Constitution does empower the legislative the power to "raise and support armies" as well as establish "rules for the Government and regulation of the land and naval forces."

See Article I, Section 8, cls. 12-14.

The question that would be posed to the court is - Does Congress have the power to prevent soldiers from leaving?

We all agree that these soldiers entered into a binding agreement by two competent parties, legal in purpose and consideration, and by genuine assent. As stated in the contract, each soldier owes at least eight years of accumulated service. So taken into account that provision, any soldier that has not completed his or her eight years would not have standing to sue.

But what about those who are set to retire after their eight years?

Well, they could argue that the government can't legally keep them in beyond their will because doing so will violate the right afforded to them by contract (promissory estoppel).

I will not argue that point because it is plain as day. There is, in my opinion, a larger precedent here that by constitutional standards should be held as the main factor in determining the majority for this case.

It is nonetheless a constitutional importance for the military, should the occasion arise, to be ready to fight wars and that it is the primary business of the armies and navies to assure this function. Schlesinger v. Ballard, 419 U.S., at 510. How this business is determined rests upon the authority granted to Congress by Art. I, 8 cls. 12-14 of the U.S. Constitution, and with the President. See U.S. Const., Art. II, 2, cl. 1. "We cannot say that, in exercising its broad constitutional power here, Congress has violated the Due Process Clause of the Fifth Amendment" Rostker v. Goldberg, 453 U.S. 57.

"As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice. ... But the proposition simply denies to Congress the power to raise armies which the Constitution gives. That power by the very terms of the Constitution, being delegated, is Supreme." Arver v. United States, 245 U.S. 366

Some have criticized, and rightly so, that this practice (i.e., "stop-loss") is tantamount to a "backdoor draft." I won't argue against this, but surprisingly so, it's legal. The military contract protects the rights of all our services men and women against bureaucratic manipulation. However, after analyzing the Due Process claim by these men and women who feel their rights were violated because their contract was involuntary extended, I will have to kindly disagree with their notion and find the policy legal. The court should dismiss this claim and not overrule the legal principle guaranteed to the government by Art. I, 8. It is superfluous to contend that contract law takes precedent in this matter.

Edit: Another route could allow the plaintiff's to claim that the Department of Defense was not in their power to extend these contracts without enacted law. The statute gives the Legislative, not the Executive, branch the power to make policy for the armies. However, several prior decisions have stated that Congress has empowered the Executive with special powers during this time of "war." A de facto declaration of war being one of those decisions as well.