Keeping Faith: The United States Military Enlistment Contract and the Implementation of Stop-Loss Measures

Abstract

This is not an article about the propriety of any of the United States' commitments around the world. This is not an article about foreign policy or about any particular administration's agenda-perceived or propagated. This Article is about those who are the hands and feet of such commitments and agendas; the lives that are committed bravely to the service of the United States of America in recruiting offices of all types in locations all around the country. Soldiers are asked to sign enlistment contracts which create the parameters of their employment. They sign their lives away, placing their liberty in the hands of the government, and all they get in return is a guarantee that the government will comply with the laws of the United States, including those that apply to terms that govern the length of their service. Ultimately, it is up to the federal government how these contracts are served, and seemingly, when they will end, directing the destinies of these brave men and women. This Article examines a particular circumstance in the exercise of that power-what happens when a soldier is denied the right to leave-and concludes that though it may be deemed legal, the United States is just not keeping the faith of its faithful servants when those servants must rely the most.

Section II explains the stop-loss policy and its application. It begins with a look at the military framework within which the stop-loss policy directly operates, followed by the policy's relationship to the political machinery responsible for its implementation. The section ends with an overview of how the policy's application has been challenged in recent history. Section III examines these challenges in detail, illustrating both the past and present state of the law. Section IV analyzes the legal issues common to these challenges, discussing those principles that seem largely established and those that are better suited for further litigation. Section V concludes by asserting that, despite the legal holes in the stop-loss policy which make it ripe for new suits, the courts will continue to affirm the application of stop-loss. Ultimately, if the stop-loss policy is to change, it is not the Judicial branch, but the Executive and Legislative branches which will have to act to keep the faith with the American soldier.