Legal Commentary

Presidential Salutes and Presidential Precedents

By Jack M. Balkin

On November 1, 2009, Carey Winfrey, who edits Smithsonian Magazine and previously served as a Marine Corps junior officer, had an op-ed in The New York Times offering A Final Verdict on the Presidential Salute. His essay was occasioned by President Obama's rendering of a fine military salute the night he flew to Dover Air Force Base to pay tribute to 15 soldiers and three DEA agents who had died in Afghanistan. The essay observed that President Reagan was "thought to be the first" President to have returned a military salute (in 1981). Mr. Winfrey reported that he had long been ambivalent about the practice, but that President Obama's Dover salute, smartly executed, had brought his ambivalence to an end. "His salute," Mr. Winfrey wrote, "it struck me, was impeccable in every way." Having also served in the military, I at once dashed off an email to the editor, respectfully disagreeing, and suggesting that "[p]residential salutes are an unfortunate innovation and should be abandoned." The Times was kind enough to publish it a few days later, leading to a number of phone calls and emails from both friends and people I'd never met. Some agreed with me, others did not, but all were quite civil. Taken together, they led me to continue to ponder this episode. Was the presidential salute really a Reagan innovation, and was there something deeper at stake?

First, the history. President Reagan was indeed pretty good with his hand-salute, both during his presidency and when leaving office, and encouraged President George H.W. Bush "to keep up the tradition." I have not found evidence that Mr. Bush, a naval hero, took the advice while in office, although he did from time to time return salutes after his term expired. President Clinton regularly offered hand-salutes, but at other times--saluting the flag or at the Tomb of the Unknowns--placed his hand over his heart. President George W. Bush was often photographed rendering a hand-salute, although he too at times would put his hand across his heart, sometimes uncertainly.

Research reveals, however, that, whether he knew it or not, President Reagan did not invent the tradition of presidential hand salutes. Photographs exist of Presidents Eisenhower, Truman, Franklin D. Roosevelt, and (seated, inappropriately) Coolidge executing hand-salutes, although there are also many examples of hand- and hat-over-heart salutes as well. Can you spot President Taft in the crowd?

I'm certain readers will continue to be divided over whether civilian commanders-in-chief should render military-style hand-salutes. Hat-wearing having become less fashionable than it once was, tipping the hat or holding it over the heart is not much of an option. So what is a President to do? My letter to the editor suggested that a simple nod of the head would suffice. Another alternative, when responding to, rather than offering, a salute, is to utter a conventional word of greeting, or, if militarily inclined, quite simply, "carry on" or "as you were."

Is this all a tempest in a teapot? I don't think so and neither, I believe, does Congress. According to 36 U.S.C. 301(b)(1), as amended by section 595 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, when the flag is displayed during the playing of the Star-Spangled Banner, persons in uniform should and members of the armed forces and veterans not in uniform may render the military (hand) salute. Others who are present should merely "face the flag and stand at attention with their right hand over the heart, and men [sic] not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart." Presidents who have never served fall in the "others" category: no hand salute. I am indebted to Prof. Robert F. Turner of the University of Virginia for calling this legislation to my attention, along with then Secretary of Veterans Affairs James B. Peake's statement at the time of enactment that "[t]he military salute is a unique gesture of respect that marks those who have served in our nation's armed forces." Other legislation permits active duty personnel in civilian clothes and all veterans to render the hand salute when the flag is raised, lowered or passes in parade or review. (I hasten to add that Bob and I nonetheless disagree on the presidential salute issue.)

The armed forces play a critical and honored role in our country, but it is important to maintain the distinction between that which is military and that which is civilian. The President is commander in chief of the armed forces, but is not a member of them, is not paid according to the military pay table, is not subject to military justice, and does not wear a uniform. Other democracies may at times blur this line, e.g., when Churchill affected a military or naval uniform in World War II, but we have not done so, even when the president has been a retired officer, as in the cases of Generals Grant and Eisenhower. But see President Charles De Gaulle. Will presidential military salutes standing alone threaten the Republic? Of course not. But as President Reagan once quipped about the fact that no president ever died of overwork, "why take a chance?"

This brings me to my second point, which concerns the role of precedent in executive administration. Certainly in the early days of the Republic, presidents had to be aware that things they did or did not do would become precedents, either expanding or contracting their own power and that of their successors. Familiar examples include deciding whether to testify before Congress or to deliver the required "information of the State of the Union" in person. Less familiar ones which also help set the tone for the institution of the presidency are means of address and the playing of "Hail to the Chief" by the United States Marine Band ("The President's Own"). Those who followed the Nixon Administration will recall his unfortunate and short-lived decision in 1970 to dress White House guards from the Secret Service's Uniformed Division in silly hats and tunics reminiscent of a Franz Lehar operetta. (Eighty of the 150 uniforms, which had been worn only once, were later acquired by Southern Utah State College for its marching band.) Does a president bow to a foreign head of state or appoint a "personal representative" to the Vatican, as FDR did in 1939? Does a president wear a flag lapel pin? Add "So help me God" to the Oath of Office? Walk part of the way during the Inaugural Parade? Should individuals be recognized from the Gallery when a president delivers the State of the Union address? Should a president dispense with wearing a jacket in the Oval Office, introduce a Supreme Court nominee at the White House or meet with the sitting Justices?

Similar matters of practice arise in the other Branches as well. Should Justices attend the Red Mass or the State of the Union? Robes? Robes with stripes? Jabot vel non? Mr. Justice Wilgarten or just plain Justice Wilgarten? Should members of Congress argue before the Supreme Court? Who should be invited to address Joint Sessions of Congress? These may not present legal issues so much as issues of tone and, ultimately, taste.

The saluting business should be considered from this broader perspective. Viewed in isolation, the diverse aspects of the presidency I've noted may seem trivial. Taken as a whole, however, they play a role in setting the tone both for a specific administration and for the institution. Personally, I hope President Obama drops the salute (as well as the flag lapel pin). If not, then I will hope his successor does so.

Full post as published by Balkinization on November 15, 2009 (boomark / email).