Recent decisions by the Department of Defense to remove officers from military promotion lists have revealed a significant gap in the statutory framework governing military promotions. Congress has begun considering legislative responses, but the current proposals address only part of the problem. To restore transparency and accountability, Congress should reform both the statutory authority to remove officers from promotion reports and lists (10 U.S.C. §§ 618 and 629) and the separate authority to delay promotions (10 U.S.C. § 624).
At first glance, the Supreme Court’s recent decision in Trump v. Slaughter might appear to leave Congress powerless here. That assumption is mistaken. Slaughter held that the President may fire a Federal Trade Commission commissioner at will, reasoning that for-cause removal protections are constitutionally suspect when applied to officers who exercise substantial executive power within the Executive Branch. While Slaughter certainly limits Congress’s ability to impose removal restrictions on executive officers after appointment, it leaves untouched Congress’s broad Article I authority to structure the military statutory promotion process before appointment. (Indeed, even more so when Senate confirmation is part of that appointment and, in the case of the military, promotion process.) The distinction is straightforward. Congress is regulating eligibility for promotion (through an appointment and Senate confirmation process) within a statutory personnel system; Congress is not restricting the President’s authority to fire officers who already hold executive office. In addition to those distinctions, military promotions are part of Congress’ Article I authorities “[t]o make Rules for the Government and Regulation of the land and naval forces,” which places Congress’s power in this arena well beyond Slaughter.
Rep. Marilyn Strickland (D-WA) introduced an amendment that would block the defense secretary from striking names from officer promotion lists — a flat prohibition rather than a procedural fix. Rep. Pat Ryan’s (D-NY) provision would require the Pentagon to tell Congress within five days why senior military officers were fired or dismissed. Rep. Ryan’s proposal — which received bipartisan support — could be extended, in theory, and should, to promotion-list removals and delays. What authority is available to Congress for regulating the firing and dismissal of senior military officers in the wake of Slaughter is beyond the scope of this article, but a simple reporting requirement like Ryan’s should survive constitutional challenge, if any.
Reform could unfold in any number of ways. At a minimum, Congress should establish a clearer legal standard for removal or delay of any officer selected for promotion, mandate improved congressional notification for any removal or delay (such as requiring any removal decision to be reported to Congress within 48 hours), and specify when such actions can be delegated. These actions are consistent with how Congress has exercised its constitutional authority over the military under its Article I authorities and through existing statutes such as the Defense Officer Personnel Management Act (DOPMA) of 1980. Here’s how this might work.
Amend Promotion Removal Authority: 10 U.S.C. §§ 618 & 629
Section 618 governs review of selection board reports—a statute that governs the President’s authority to remove a name from the board’s report before it is approved. Once the board report is approved, the Secretary of the Military Department places names of officers on a promotion list. Section 629 authorizes the President to remove an individual officer from an already approved promotion list based on information that calls the officer’s fitness for promotion into question. Both 10 U.S.C. § 618 and § 629 are ripe for reform, but I’ll focus my reforms on 10 U.S.C. § 629.
Section 629 states that “[t]he President may remove the name of any officer from a list of officers recommended for promotion by a selection board convened under this chapter. The President shall notify the congressional defense committees not later than 30 days after removing the name of an officer from such list for any reason other than misconduct.” Since 1982, the President has delegated removal authority for O-6-and-below officers to the Secretary of Defense via Executive Order 12,396. There are a few issues with the existing language that are ripe for reform.
First, the President “may remove” selected officers without a clear, legal standard for removal. While Pentagon regulations specify the removal process and articulate standards for removal, these are internal directives that can be changed. Congress should specify objective statutory criteria governing when an officer may be removed from a promotion list.
Second, the statute requires congressional notification, but only after removal from the selection list has taken place. Congress should require that the House and Senate Armed Services Committees receive written, contemporaneous justification with the specific factual basis for the removal before the selection list moves forward to the Senate for its advice and consent. In addition, Congress should mandate that the President provide the officer with a written notice of the proposed grounds for removal and allow the officer to make a written response. Both written notice and responses should be made available to Congress, providing much-needed transparency to a somewhat convoluted and opaque process.
Third, the statute is silent on whether (and how far down the chain of command) the President can delegate removal authority. Congress should specify that the removal decision may not be further delegated by the President or specific officials, consistent with how Congress has reined in delegation authorities in other statutes. Congress routinely specifies whether statutory authority may be delegated. Numerous statutes expressly limit redelegation or require action by a specified official. Because the authority to remove officers from promotion lists exists only by statute, Congress may define the extent to which that authority is delegable absent a contrary constitutional command. Nothing in Article II requires Congress to permit unrestricted delegation. Of course, a President may then simply say they are acting on the recommendation of the Secretary, but that is still an accountability-enforcing mechanism placing responsibility on the President’s desk.
Finally, Congress should provide an independent review path for the affected officer, providing an expedited route to the Board for Correction of Military or Naval Records with a tight statutory clock rather than relying on litigation under the Administrative Procedure Act (APA). APA review is often too slow to provide meaningful relief before an officer’s promotion opportunity has effectively passed.
Amend Promotion Delay Authority: 10 U.S.C. § 624
This provision of the U.S. Code authorizes the Secretary of Defense to delay the appointment of officers selected for promotion. While the delay authority has been receiving far less attention than the removal statute in the media, this statute is enormously powerful. This statute authorizes withholding of officer names from the Senate scroll or delaying an officer’s appointment if the Senate scroll has already been signed by the Secretary of Defense or President. These actions can effectively lead to permanent removals if no further action is taken. Because the statute imposes no meaningful deadline, a promotion delay can function as a constructive removal without triggering the procedural protections applicable to formal removal under § 629. Section 624 speaks to several ways in which an officer’s promotion may be lawfully delayed, but more specificity is in order.
First, 10 U.S.C. § 624 (d)(1) authorizes the Secretary of Defense to delay the appointment of an officer in six distinct scenarios (e.g., criminal proceeding or adverse information against the officer).
In contrast, 10 U.S.C. § 624 (d)(2) is much vaguer and should be the focus of reform. It states that the Secretary of Defense may delay the appointment of an officer selected for promotion if the Secretary has “cause to believe that the officer has not met the requirement for exemplary conduct … or is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he was selected for promotion.” Congress never defined what constitutes “cause to believe,” leaving substantial discretion over promotion delays without corresponding procedural safeguards. Exemplary conduct is broadly defined by statute to require that each officer “be a good example of virtue, honor, patriotism, and subordination.” Each officer must “guard against and suppress all dissolute and immoral practices.” Congress never defined these inherently subjective and relatively amorphous standards, leaving the Executive substantial discretion to determine whether an officer satisfies them.
Similar to the removal from promotion authority, there is no notice or reporting requirement (to Congress or the affected officer) baked into the statute, nor is there a time limit on the delay. The absence of a statutory deadline is particularly problematic as it does not incentivize resolving the matter and the affected officer may sit in permanent, unreviewable limbo that leads to a constructive removal.
Congress should require advance notice to the officer and to Congress before the decision to delay the officer’s promotion. Moreover, Congress should impose a time limit on the delay proceeding, for example, mandating that any promotion delay is capped at 180 days unless (1) the delay is resolved in the officer’s favor, or (2) the President initiates a formal removal from promotion procedure.
Finally, the statute should add a section to clarify that any delay action may not be used as a substitute for, or a means of indefinitely avoiding, a removal action under 10 U.S.C. § 629.
Promotion delays also raise separation-of-powers concerns independent of individual fairness. Clear statutory deadlines would therefore protect not only affected officers but Congress’s own constitutional and institutional role in the appointments process. These statutory reforms all remain constitutionally available after Trump v. Slaughter.
Congress Retains Authority Over Military Promotions post-Slaughter
While the President is the Commander in Chief and is afforded some level of national security deference over military affairs and governance, the Constitution envisions a robust role for Congress over the military. For example, Congress has power “[t]o make Rules for the Government and Regulation of the land and naval forces” under the Make Rules Clause (Article I, § 8, clause 14). This Clause provides the textual basis for Congress to pass the Uniform Code of Military Justice (UCMJ). The Supreme Court has repeatedly recognized Congress’s broad authority to regulate the armed forces and address military personnel matters.
While the Supreme Court has not opined directly on the scope of the specific removal and delay authority in §§ 624 and 629, the Court has repeatedly upheld Congress’s authorities under the Make Rules Clause, while highlighting that congressional authority over military personnel matters is entitled to the Court’s highest level of deference. Consider this trilogy of cases. First, in Rostker v. Goldberg, a 1981 decision challenging the constitutionality of the Military Selective Service Act, the Court upheld the statute while noting that the case arose “in the context of Congress’s authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference.” The Court continued that “judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” Second, in Chappell v. Wallace, decided in 1983, the Court stated that Congress possesses “plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline.” And in Weiss v. United States, decided in 1994, the Court cited to Rostker and Chappell, while noting that Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military. Taken together, these cases confirm that Congress holds enormous, if not plenary, control over the Military Establishment, and that judicial deference to congressional action under the Make Rules Clause is at its apex. Professor Zach Price has explained that Congress has broad authority over military offices, writing that “Congress may establish structures of executive branch accountability that promote key values [and] protect military professionalism.”
Moreover, from the founding until now, Congress has been directly involved in the nitty-gritty of military personnel matters, such as creating the modern promotion system, and, indeed, has long regulated eligibility and promotion procedures without intruding upon the President’s appointment authority. One of the first Acts of Congress in 1789 was the transfer of soldiers in the Continental Army to the newly formed United States, a law passed at the request of George Washington. And Congress was intimately involved in the promotion, tenure, size, and composition of the officer corps throughout the nineteenth and twentieth centuries. Before DOPMA, Congress passed both the National Defense Act of 1920 and the Officer Personnel Act of 1947, key framework statutes organizing the Army and Navy. According to a recent RAND report, “apart from the budgetary aspects of national defense, it is difficult to locate an area in which Congress was not more consistently and intimately involved than management of the officer corps.”
Indeed, the entire promotion list legal architecture—composition of selection boards, time-in-grade eligibility, and the entire DOPMA framework—derives from Congress’s Make Rules power, not executive order or Pentagon regulations alone. Promotion lists are creatures of statute, as outlined in DOPMA—a comprehensive personnel law statute that has governed promotions, delays, appointments, and separation of military officers since 1980.
If Congress can create the candidate pool of officers eligible for promotion, define the criteria for selection boards, and specify the process for officer selection, clarifying conditions for removal from a promotion list and delay in promotions is consistent with Congress’s historic role in military personnel matters. These proposed changes are not an intrusion into the President’s nomination choice but a continuation of Congress regulating the promotion process.
In contrast, Slaughter addressed removal authority for select officers already exercising executive power. Promotion-list officers occupy no constitutional office beyond the rank they presently hold. Congress is regulating the statutory process that precedes nomination, appointment, and Senate confirmation—not restricting removal from an existing office or an officer at an existing rank. And Congress has repeatedly modified DOPMA’s promotion procedures over the past four decades without serious constitutional objection, underscoring that promotion-list administration has long been understood as an area of shared constitutional authority.
In my proposals, Congress is regulating only the statutory pathway to appointment—not the President’s authority to remove an officer from existing executive office. While one can disagree about the wisdom of the President’s and Secretary Hegseth’s decisions to separate officers from military service—as Professor Mike Schmitt recently discussed—the authority to remove existing officers in existing positions is distinct from officers selected for the next rank.
Defining the conditions under which an officer remains eligible for promotion, or requiring procedural safeguards before removal or delay from a statutory promotion list, is entirely different from limiting the President’s constitutional authority to fire an officer already serving in executive office.
Conclusion
In sum, Trump v. Slaughter does not foreclose or much constrain congressional action in this space. Nothing in the Slaughter ruling disturbs Congress’s longstanding Article I authority over military personnel management. As the FY2027 NDAA process gets underway, lawmakers have both the vehicle and the blueprint to provide durable, statutory standards governing removal and delay alike. If Congress wishes to preserve merit-based military promotions while respecting presidential command authority, the solution is not to eliminate executive discretion but to cabin it through clear statutory standards, procedural safeguards, and meaningful congressional oversight.
