What Can the President Do as Commander in Chief

Article 2, Department two, Clause 1:

The President shall be Commander in Principal of the Army and Navy of the U.s., and of the Militia of the several States, when called into the actual Service of the The states; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Bailiwick relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The purely military aspects of the Commander-in-Chiefship were those that were originally stressed. Hamilton said the part "would amount to naught more than the supreme command and direction of the Military and naval forces, every bit first general and admiral of the confederacy." i Story wrote in his Commentaries: "The propriety of albeit the president to exist commander in chief, then far as to give orders, and accept a full general superintendency, was admitted. But it was urged, that information technology would be unsafe to let him command in person, without any restraint, equally he might make a bad employ of information technology. The consent of both houses of Congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the president might, at that place was no necessity that he should, have the control in person; and there was no probability that he would do then, except in extraordinary emergencies, and when he was possessed of superior military talents." two In 1850, Main Justice Taney, for the Courtroom, wrote: "His duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military machine forces placed by law at his command, and to apply them in the fashion he may deem well-nigh effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and bailiwick it to the sovereignty and dominance of the United States. But his conquests do non enlarge the boundaries of this Matrimony, nor extend the operation of our institutions and laws beyond the limits earlier assigned to them by the legislative power. . . ."

"But in the distribution of political power betwixt the great departments of government, there is such a broad departure between the power conferred on the President of the U.s., and the authority and sovereignty which vest to the English crown, that it would be birthday unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other bailiwick where the rights and powers of the executive arm of the authorities are brought into question." 3 Fifty-fifty after the Civil War, a powerful minority of the Courtroom described the role of President as Commander-in-Master but as "the command of the forces and the behave of campaigns." 4

The basis for a broader conception was laid in certain early acts of Congress authorizing the President to apply military force in the execution of the laws.5 -334. Run across also Martin v. Mott, 25 U.Due south. (12 Wheat.) 19, 32–33 (1827), asserting the finality of the President'due south judgment of the existence of a state of facts requiring his do of the powers conferred by the act of 1795. In his famous message to Congress of July 4, 1861,6 Lincoln advanced the merits that the "war power" was his for the purpose of suppressing rebellion, and in the Prize Cases 7 of 1863 a divided Courtroom sustained this theory. The firsthand effect was the validity of the blockade that the President, following the attack on Fort Sumter, had proclaimed of the Southern ports.8 The argument was advanced that a blockade to be valid must be an incident of a "public state of war" validly alleged, and that only Congress could, by virtue of its power "to declare war," constitutionally impart to a war machine situation this character and scope. Speaking for the majority of the Court, Justice Grier answered: "If a war be fabricated by invasion of a foreign nation, the President is non simply authorized but spring to resist force past force. He does not initiate the war, but is spring to accept the challenge without waiting for any special legislative say-so. And whether the hostile party be a foreign invader, or States organized in rebellion, information technology is none the less a war, although the declaration of it exist 'unilateral.' Lord Stowell (1 Dodson, 247) observes, 'It is not the less a war on that account, for war may be without a declaration on either side. It is and then laid down by the best writers of the law of nations. A declaration of war past one state only, is not a mere challenge to exist accustomed or refused at pleasance by the other.'"

"The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the human activity of Congress of May 13, 1846, which recognized 'a land of war as existing past the human activity of the Republic of Mexico.' This deed not only provided for the future prosecution of the war, simply was itself a vindication and ratification of the Deed of the President in accepting the challenge without a previous formal declaration of war by Congress."

"This greatest of civil wars was not gradually developed by pop commotion, tumultuous assemblies, or local unorganized insurrections. Notwithstanding long may have been its previous formulation, information technology still sprung along all of a sudden from the parent brain, a Minerva in the full panoply of state of war. The President was jump to run into it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could modify the fact. . . ."

"Whether the President in fulfilling his duties, as Commander in-master, in suppressing an insurrection, has met with such armed hostile resistance, and a ceremonious war of such alarming proportions as volition hogtie him to accord to them the graphic symbol of belligerents, is a question to be decided by him, and this Court must be governed past the decisions and acts of the political department of the government to which this power was entrusted. 'He must determine what degree of force the crisis demands.' The proclamation of blockade is itself official and conclusive show to the Court that a state of state of war existed which demanded and authorized a recourse to such a measure, nether the circumstances peculiar to the case." 9

In cursory, the powers that may be claimed for the President nether the Commander-in-Principal Clause at a time of widespread insurrection were equated with his powers nether the clause at a time when the United States is engaged in a formally declared strange state of war.10 And, because, peculiarly in the early months of the Ceremonious War, Lincoln performed diverse acts, such as increasing the Army and Navy, that admittedly vicious within Congress's constitutional province, it seems to have been assumed during Globe Wars I and II that the position of Commander-in-Primary carried with it the ability to practice like powers practically at discretion, non just in wartime but even at a time when war became a strong possibility. No attending was given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly had,xi with the exception of his suspension of habeas corpus, a power that many attributed to the President in the situation then existing, by virtue of his duty to have care that the laws be faithfully executed.12 Nor was this the only respect in which state of war or the arroyo of war was deemed to operate to enlarge the scope of power claimable by the President as Commander-in-Primary in wartime.thirteen

In his message to Congress of September seven, 1942, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th,xiv President Roosevelt formulated his conception of his powers as "Commander in Chief in wartime" as follows:

I ask the Congress to take this activity by the first of October. Inaction on your part past that engagement will get out me with an inescapable responsibility to the people of this state to run across to information technology that the state of war effort is no longer imperiled past threat of economic chaos.

In the effect that the Congress should fail to human action, and act adequately, I shall accept the responsibility, and I will act.

At the same time that farm prices are stabilized, wages tin can and will be stabilized besides. This I volition exercise.

The President has the powers, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.

I take given the most thoughtful consideration to coming together this issue without farther reference to the Congress. I take adamant, all the same, on this vital matter to consult with the Congress. . . .

The American people can be sure that I volition employ my powers with a full sense of my responsibleness to the Constitution and to my country. The American people tin too be sure that I shall not hesitate to utilize every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.

When the war is won, the powers under which I act automatically revert to the people—to whom they belong.15

While congressional compliance with the President's demand rendered unnecessary an effort on his function to amend the Price Command Act, there were other matters every bit to which he repeatedly took action within the normal field of congressional powers, not simply during the war, only in some instances prior to it. Thus, in exercising both the powers which he claimed every bit Commander-in-Master and those which Congress conferred upon him to see the emergency, Mr. Roosevelt employed new emergency agencies, created past himself and responsible direct to him, rather than the established departments or existing independent regulatory agencies.xvi

The question of the legal condition of the presidential agencies was dealt with judicially merely once. This was in the decision of the United States Court of Appeals for the District of Columbia in Employers Group v. National War Labor Board ,17 . which was a conform to counteract and enjoin a "directive order" of the War Labor Board. The Courtroom refused the injunction on the ground that the time when the directive was issued any action of the Lath was "informatory," "at almost informational." In support of this view the Courtroom quoted approvingly a statement by the chairman of the Board itself: "These orders are in reality mere declarations of the equities of each industrial dispute, as determined by a tripartite trunk in which manufacture, labor, and the public share equal responsibleness; and the appeal of the Lath is to the moral obligation of employers and workers to bide by the nonstrike, no-lock-out agreement and . . . to carry out the directives of the tribunal created nether that agreement by the Commander in Chief." xviii Nor, the Court connected, had the later War Labor Disputes Act vested War Labor Board orders with any greater potency, with the result that they were however judicially unenforceable and unreviewable. Following this theory, the War Labor Board was non an office wielding power, just a purely advisory body, such equally Presidents have frequently created in the past without the assist or consent of Congress. Congress itself, nevertheless, both in its appropriation acts and in other legislation, treated the presidential agencies equally in all respects offices.19

On Feb 19, 1942, President Roosevelt issued an executive club, "by virtue of the dominance vested in me every bit President of the United States, and Commander in Chief of the Army and Navy," providing, as a safeguard against subversion and sabotage, power for his military machine commanders to designate areas from which "whatever person" could exist excluded or removed and to fix up facilities for such persons elsewhere.20 Pursuant to this gild, more than than 112,000 residents of the Western states, all of Japanese descent and more than ii out of every iii of whom were natural-born citizens, were removed from their homes and herded into temporary camps and later on into "relocation centers" in several states.

Information technology was obviously the original intention of the Administration to rely on the general principle of armed services necessity and the power of the Commander-in-Chief in wartime equally authorisation for the relocations. But before whatever activity of importance was taken under the order, Congress ratified and adopted it past the Act of March 21, 1942,21 by which it was fabricated a misdemeanor to knowingly enter, remain in, or leave prescribed military areas contrary to the orders of the Secretarial assistant of War or of the commanding officer of the area. The cases which subsequently arose in effect of the order were decided nether the order plus the Human action. The question at issue, said Chief Justice Rock for the Court, "is not one of Congressional power to delegate to the President the promulgation of the Executive Lodge, only whether, acting in cooperation, Congress and the Executive accept constitutional . . . [power] to impose the curfew restriction here complained of." 22 This question was answered in the affirmative, every bit was the like question later raised by an exclusion society.23

The well-nigh important segment of the home front regulated by what were in event presidential edicts was the field of labor relations. Exactly six months before Pearl Harbor, on June 7, 1941, Mr. Roosevelt, citing his proclamation thirteen days before of an unlimited national emergency, issued an Executive Order seizing the North American Aviation Plant at Inglewood, California, where, on account of a strike, product was at a standstill.24 Attorney Full general Jackson justified the seizure as growing out of the "duty constitutionally and inherently rested upon the President to exert his civil and military as well every bit his moral authority to keep the defense efforts of the United States a going concern," as well every bit "to obtain supplies for which Congress has appropriated the coin, and which it has directed the President to obtain." 25 Other seizures followed, and on Jan 12, 1942, Mr. Roosevelt, by Executive Order 9017, created the National War Labor Board. "Whereas," the order read in office, "by reason of the state of war declared to exist past articulation resolutions of Congress, . . . the national interest demands that there shall be no suspension of any work which contributes to the effective prosecution of the state of war; and Whereas as a result of a conference of representatives of labor and manufacture which met at the phone call of the President on December 17, 1941, information technology has been agreed that for the duration of the war there shall be no strikes or lockouts, and that all labor disputes shall be settled past peaceful ways, and that a National State of war Labor Board exist established for a peaceful adjustment of such disputes. Now, therefore, past virtue of the authority vested in me by the Constitution and the statutes of the United States, it is hereby ordered: ane. There is hereby created in the Office for Emergency Management a National War Labor Board . . . ." 26 In this field, too, Congress intervened by ways of the War Labor Disputes Deed of June 25, 1943,27 which, however, nevertheless left ample footing for presidential activity of a legislative character.28

To implement his directives as Commander-in-Chief in wartime, and especially those which he issued in governing labor disputes, President Roosevelt often resorted to "sanctions," which may be described as penalties lacking statutory authorization. Ultimately, the President sought to put sanctions in this field on a systematic basis. The club empowered the Manager of Economic Stabilization, on receiving a report from the National War Labor Board that someone was not complying with its orders, to result "directives" to the appropriate department or bureau requiring that privileges, benefits, rights, or preferences enjoyed past the noncomplying party be withdrawn.29

Sanctions were also occasionally employed by statutory agencies, such as OPA, to supplement the penal provisions of the Emergency Price Control Human action of Jan xxx, 1942.30 In Steuart & Bro. v. Bowles ,31 the Supreme Courtroom had the opportunity to regularize this blazon of executive emergency legislation. Hither, a retail dealer in fuel oil was charged with having violated a rationing order of OPA by obtaining large quantities of oil from its supplier without surrendering ration coupons, by delivering many thousands of gallons of fuel oil without requiring ration coupons, and so on, and was prohibited past the agency from receiving oil for resale or transfer for the ensuing yr. The offender conceded the validity of the rationing order in back up of which the suspension society was issued merely challenged the validity of the latter every bit imposing a penalty that Congress had not enacted and asked the district court to enjoin it.

The court refused to do and so and was sustained by the Supreme Courtroom in its position. Justice Douglas wrote for the Courtroom: "[W]ithout rationing, the fuel tanks of a few would be full; the fuel tanks of many would be empty. Some localities would have plenty; communities less favorably situated would endure. Allocation or rationing is designed to eliminate such inequalities and to treat all alike who are similarly situated. . . . But middlemen—wholesalers and retailers—bent on defying the rationing organisation could raise havoc with it. . . . These middlemen are the chief if non the but conduits between the source of limited supplies and the consumers. From the viewpoint of a rationing system a middleman who distributes the product in violation and disregard of the prescribed quotas is an inefficient and wasteful conduit. . . . Certainly nosotros could non say that the President would lack the power nether this Human activity to take away from a wasteful manufactory and road to an efficient one a precious supply of material needed for the manufacture of articles of war. . . . From the point of view of the factory owner from whom the materials were diverted the action would be harsh. . . . Merely in times of war the national interest cannot look on individual claims to preference. . . . Yet if the President has the power to channel raw materials into the virtually efficient industrial units and thus save scarce materials from wastage information technology is difficult to come across why the same principle is not applicative to the distribution of fuel oil." 32 Sanctions were, therefore, constitutional when the deprivations they wrought were a reasonably implied distension of the noun ability which they supported and were directly conservative of the interests which this power was created to protect and advance. It is sure, nevertheless, that sanctions not uncommonly exceeded this blueprint.33

The end of active hostilities did not cease either the emergency or the Federal Government's response to information technology. President Truman proclaimed the termination of hostilities on Dec 31, 1946,34 and, in July 1947, Congress enacted a articulation resolution that repealed a swell diverseness of wartime statutes and set up termination dates for others.35 Signing the resolution, the President said that the emergencies alleged in 1939 and 1940 continued to exist and that it was "not possible at this time to provide for terminating all war and emergency powers." 36 The hot war was giving mode to the Cold War.

Congress thereafter enacted a new Housing and Rent Act to continue the controls begun in 194237 and continued the war machine typhoon.38 With the outbreak of the Korean State of war, legislation was enacted establishing general presidential control over the economy again,39 and by executive order the President created agencies to exercise the power.forty The Court continued to assume the existence of a state of wartime emergency prior to Korea, but with misgivings. In Wood v. Cloyd Due west. Miller Co. ,41 the Court held ramble the new rent control constabulary on the ground that abeyance of hostilities did not stop the regime'southward war power, but that the power connected to remedy the evil arising out of the emergency. Yet, Justice Douglas noted for the Court, "We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war ability tin can be used in days of peace to care for all the wounds which war inflicts on our gild, it may not only eat upwards all other powers of Congress but largely obliterate the Ninth and Tenth Amendments equally well. In that location are no such implications in today's conclusion." 42 Justice Jackson, though concurring, noted that he found the war ability "the most dangerous one to costless authorities in the whole catalogue of powers" and cautioned that its practise "be scrutinized with care." 43 And, in Ludecke 5. Watkins ,44 four dissenting Justices were prepared to hold that the presumption in the statute under review of continued war with Federal republic of germany was "a pure fiction" and not to be used.

But the postwar period was a time of reaction confronting the wartime practise of power by President Roosevelt, and President Truman was non permitted the same liberties. The Twenty-2nd Amendment, writing into permanent law the ii-term custom, the "Slap-up Debate" about our participation in NATO, the effort to limit the treaty-making power, and other actions, bespoke the reaction.45 The Supreme Courtroom signalized this reaction when it struck down the President's action in seizing the steel industry while information technology was struck during the Korean War.46

Still, the long period of the Cold War and of agile hostilities in Korea and Indochina, in add-on to the upshot of the utilize of troops in the absence of congressional say-so, farther created conditions for consolidation of powers in the President. In particular, a cord of declarations of national emergencies, most, in whole or part, under the Trading with the Enemy Act,47 undergirded the practise of much presidential power. In the storm of response to the Vietnamese conflict, here, also, Congress reasserted legislative power to curtail what it viewed as excessive executive power, repealing the Trading with the Enemy Act and enacting in its place the International Emergency Economical Powers Act,48 -1706. which did not alter most of the range of powers delegated to the President but which did change the scope of the power delegated to declare national emergencies.49 . Congress also passed the National Emergencies Act, prescribing procedures for the declaration of national emergencies, for their termination, and for presidential reporting to Congress in connection with national emergencies. To end the exercise of declaring national emergencies for an indefinite duration, Congress provided that any emergency not otherwise terminated would expire i year afterward its proclamation unless the President published in the Federal Register and transmitted to Congress a observe that the emergency would go on in effect.l

Reaction after Earth State of war II did non persist, merely soon ran its course, and the necessities, real and perceived, of the Usa' role equally globe power and chief guarantor of the peace operated to aggrandize the powers of the President and to diminish congressional powers in the foreign relations arena. President Truman did not seek congressional authorization before sending troops to Korea, and subsequent Presidents similarly acted on their own in putting troops into many foreign countries, including the Dominican Republic, Lebanon, Grenada, Panama, and the Persian Gulf, and most notably Indochina.51 Eventually, public opposition precipitated another constitutional debate whether the President had the authority to commit troops to foreign gainsay without the approving of Congress, a debate that went on inconclusively betwixt Congress and Executive52 and 1 which the courts were content by and large to consign to the exclusive consideration of those two bodies. The substance of the debate concerns many facets of the President'southward powers and responsibilities, including his obligations to protect the lives and property of The states citizens abroad, to execute the treaty obligations of the Nation, to farther the national security interests of the Nation, and to deal with aggression and threats of aggression every bit they face him. Defying neat summarization, the considerations nevertheless merit at least an historical survey and an attempted categorization of the arguments.

In 1912, the Section of State published a memorandum prepared past its Solicitor which set out to justify the Right to Protect Citizens in Strange Countries past Landing Forces.53 In addition to the justification, the memorandum summarized 47 instances in which strength had been used, in most of them without any congressional potency. Twice revised and reissued, the memorandum was joined by a 1928 contained report and a 1945 work past a former government official in supporting conclusions that drifted abroad from the original justification of the use of The states forces abroad to the apply of such forces at the discretion of the President and free from control by Congress.54

New lists and revised arguments were published to support the actions of President Truman in sending troops to Korea and of Presidents Kennedy and Johnson in sending troops first to Vietnam and then to Indochina more often than not,55 and new lists take been propounded.56 The peachy bulk of the instances cited involved fights with pirates, landings of modest naval contingents on barbarous or semibarbarous coasts to protect commerce, the dispatch of small-scale bodies of troops to hunt bandits beyond the Mexican border, and the similar, and some incidents supposedly without authorization from Congress did in fact have underlying statutory or other legislative authorization. Some instances, due east.g., President Polk's use of troops to precipitate war with Mexico in 1846, President Grant'south endeavour to annex the Dominican Commonwealth, President McKinley's dispatch of troops into Cathay during the Boxer Rebellion, involved considerable exercises of presidential power, simply in general purposes were express and congressional authority was sought for the use of troops confronting a sovereign state or in such a mode as to constitute war. The early on years of this century saw the expansion in the Caribbean area and Latin America both of the use of troops for the furthering of what was perceived to be our national interests and of the power of the President to deploy the military strength of the United States without congressional authorization.57

The pre-war actions of Presidents Wilson and Franklin Roosevelt avant-garde in substantial degrees the fact of presidential initiative, although the theory did not brainstorm to catch up with the fact until the "Nifty Argue" over the commitment of troops by the U.s.a. to Europe nether the Atlantic Pact. While congressional authorization was obtained, that fence, the contend over the United Nations charter, and the contend over Commodity 5 of the North Atlantic Treaty of 1949, declaring that "armed attack" confronting one signatory was to be considered as "an attack" against all signatories, provided the occasion for the conception of a theory of contained presidential power to utilize the armed forces in the national involvement at his discretion.58 Thus, Secretary of State Acheson told Congress: "Not but has the President the authority to use the armed forces in carrying out the broad foreign policy of the The states implementing treaties, but information technology is equally clear that this authorisation may not be interfered with by the Congress in the exercise of powers which information technology has under the Constitution." 59

The fullest expression of the presidential power proponents has been in defense of the course followed in Indochina. Thus, the Legal Adviser of the State Department, in a widely circulated document, contended: "Under the Constitution, the President, in addition to beingness Chief Executive, is Commander in Chief of the Army and Navy. He holds the prime number responsibleness for the conduct of United States foreign relations. These duties carry very broad powers, including the power to deploy American forces abroad and commit them to military machine operations when the President deems such action necessary to maintain the security and defense of the United States. . . ."

"In 1787 the world was a far larger place, and the framers probably had in listen attacks upon the U.s.. In the 20th century, the world has grown much smaller. An attack on a country far from our shores can impinge directly on the nation's security. In the SEATO treaty, for example, information technology is formally declared that an armed attack against Viet Nam would endanger the peace and security of the United States."

"Under our Constitution information technology is the President who must decide when an armed attack has occurred. He has as well the constitutional responsibility for determining what measures of defense force are required when the peace and safety of the United States are endangered. If he considers that deployment of U.S. forces to Southward Viet Nam is required, and that armed forces measures against the source of Communist aggression in N Viet Nam are necessary, he is constitutionally empowered to accept those measures." lx

Opponents of such expanded presidential powers have contended, all the same, that the authority to initiate war was not divided between the Executive and Congress but was vested exclusively in Congress. The President had the duty and the power to repeal sudden attacks and human activity in other emergencies, and in his role as Commander in Chief he was empowered to direct the armed forces for any purpose specified by Congress.61 Though Congress asserted itself in some respects, it never really managed to face the President's ability with any sort of effective limitation, until recently.

The Power of Congress to Control the President'southward Discretion

Over the President's veto, Congress enacted the War Powers Resolution,62 -1548. For the congressional intent and caption, run across H. Rep. No. 93-287, S. Rep. No. 93–220, and H. Rep. No. 93-547 (Conference Study), all 93d Congress, 1st sess. (1973). The President's veto message is H. Doc. No. 93-171, 93d Congress. 1st Sess. (1973). All this fabric is collected in The State of war Powers Resolution: Relevant Documents, Reports, Correspondence, Business firm Committee on Foreign Affairs, 103d Cong., second Sess. (Comm. Print) (GPO: 1994), one-46. For a narrative business relationship of passage and an cess of the disputed compliance to date, from the congressional point of view, see The War Powers Resolution, A Special Study of the House Committee on Foreign Diplomacy, 102d Cong., second Sess. (Comm. Print) (GPO: 1982). designed to redistribute the war powers between the President and Congress. Although ambiguous in some respects, the Resolution appears to define restrictively the President'south powers, to require him to report fully to Congress upon the introduction of troops into strange areas, to specify a maximum fourth dimension limitation on the appointment of hostilities absent affirmative congressional action, and to provide a means for Congress to require abeyance of hostilities in accelerate of the time set.

The Resolution states that the President's ability to commit Us troops into hostilities, or into situations of imminent involvement in hostilities, is limited to instances of (1) a announcement of war, (two) a specific statutory potency, or (three) a national emergency created by an attack on the United States, its territories or possessions, or its armed forces.63 (c). In the absence of a declaration of state of war, a President must inside 48 hours report to Congress whenever he introduces troops (ane) into hostilities or situations of imminent hostilities, (2) into a foreign nation while equipped for combat, except in certain nonhostile situations, or (iii) in numbers which substantially enlarge U.s.a. troops equipped for gainsay already located in a foreign nation.64 (a). If the President introduces troops in the first of these iii situations, then he must terminate the utilise of troops within lx days after his report was submitted or was required to be submitted to Congress, unless Congress (i) has alleged war, (ii) has extended the period, or (3) is unable to come across every bit a effect of an assault on the Us, only the period tin can be extended another 30 days by the President's certification to Congress of unavoidable military necessity respecting the safe of the troops.65 (b). Congress may through the passage of a concurrent resolution require the President to remove the troops sooner.66 The Resolution further states that no legislation, whether enacted prior to or subsequent to passage of the Resolution will be taken to empower the President to use troops abroad unless the legislation specifically does so and that no treaty may so empower the President unless it is supplemented by implementing legislation specifically addressed to the issue.67 (a).

Aside from its utilize as a rhetorical device, the War Powers Resolution has been of little worth in reordering presidential-congressional relations in the years since its enactment. All Presidents operating under information technology take expressly or implicitly considered it to exist an unconstitutional infringement on presidential powers, and on each occasion of use abroad of United States troops the President in reporting to Congress has done so "consistent[ly] with" the reporting section but non pursuant to the provision.68 Upon the invasion of Kuwait by Iraqi troops in 1990, President Bush sought not congressional authorization merely a United Nations Security Council resolution authorizing the employ of force past member Nations. Simply at the last moment did the President seek authorization from Congress, he and his officials contending that he had the power to act unilaterally.69 After intensive debate, Congress voted, 250 to 183 in the House of Representatives and 53 to 46 in the Senate, to authorize the President to use United states of america troops pursuant to the U.North. resolution and purporting to bring the act inside the context of the War Powers Resolution.70

By contrast, President George W. Bush sought a resolution from Congress in 2002 to corroborate the eventual invasion of Iraq earlier seeking a U.N. Security Council resolution, all the while denying that express authorization from Congress, or for that matter, the U.N. Security Council, was necessary to renew hostilities in Iraq. Prior to adjourning for its midterm elections, Congress passed the Authorization for Employ of Military Force confronting Iraq Resolution of 2002,71 which information technology styled every bit "specific statutory authorization inside the meaning of section 5(b) of the War Powers Resolution." On signing the measure, the President noted that he had sought "an additional resolution of support" from Congress, and expressed appreciation for receiving that support, but stated, "my request for information technology did not, and my signing this resolution does non, constitute whatever alter in the long-standing positions of the executive branch on either the President's constitutional potency to utilize force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution." 72 In the Bush-league assistants's view, the primary benefit of receiving dominance from Congress seems to take been the bulletin of political unity it conveyed to the residuum of the world rather than the fulfillment of whatever constitutional requirements.

Although there is recurrent talk within Congress and without as to alteration the War Powers Resolution to strengthen it, no consensus has emerged, and there is little evidence that there exists within Congress the resolve to practice the responsibility concomitant with strengthening it.73

While the President customarily delegates supreme command of the forces in active service, there is no constitutional reason why he should practice so, and he has been known to resolve personally important questions of armed forces policy. Lincoln early in 1862 issued orders for a general accelerate in the hopes of stimulating McClellan to action; Wilson in 1918 settled the question of an independent American control on the Western Front; Truman in 1945 ordered that the bomb be dropped on Hiroshima and Nagasaki.74 As against an enemy in the field, the President possesses all the powers which are accorded by international constabulary to any supreme commander. "He may invade the hostile land, and bailiwick information technology to the sovereignty and say-so of the The states." 75 In the absence of attempts by Congress to limit his power, he may establish and prescribe the jurisdiction and process of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his authority to do this sometimes survives cessation of hostilities.76 He may employ secret agents to enter the enemy'south lines and obtain information as to its strength, resources, and movements.77 He may, at least with the assent of Congress, authorize commercial intercourse with the enemy.78 He may likewise requisition belongings and compel services from American citizens and friendly aliens who are situated within the theater of military operations when necessity requires, thereby incurring for the United States the obligation to render "only compensation." 79 By the same warrant, he may bring hostilities to a conclusion by arranging an ceasefire, stipulating atmospheric condition that may decide to a peachy extent the ensuing peace.lxxx He may not, however, effect a permanent acquisition of territory,81 though he may govern recently acquired territory until Congress sets upward a more than permanent regime.82

The President is the ultimate tribunal for the enforcement of the rules and regulations that Congress adopts for the authorities of the forces, and that are enforced through courts-martial.83 Indeed, until 1830, courts-martial were convened solely on the President'due south authority as Commander in Primary.84 Such rules and regulations are, moreover, it seems, subject field in wartime to his amendment at discretion.85 Similarly, the power of Congress to "make rules for the authorities and regulation of the land and naval forces" (Art. I, § 8, cl. xiv) did non prevent President Lincoln from promulgating, in April, 1863, a code of rules to govern the conduct in the field of the armies of the Us, which was prepared at his case by a committee headed by Francis Lieber and which subsequently became the ground of all like codifications both hither and abroad.86 I of import power that the President lacks is that of choosing his subordinates, whose grades and qualifications are determined by Congress and whose appointment is ordinarily made past and with the advice and consent of the Senate, though undoubtedly Congress could if it wished vest their engagement in "the President alone." 87 Also, the President'south power to dismiss an officer from the service, in one case unlimited, is today confined by statute in time of peace to dismissal "in pursuance of the sentence of a full general courtroom-martial or in mitigation thereof." 88 . But the provision is not regarded by the Court as preventing the President from displacing an officer of the Regular army or Navy by appointing with the communication and consent of the Senate another person in his place.89 The President's ability of dismissal in fourth dimension of state of war Congress has never attempted to limit.

Is the Commander-in-Chiefship a military machine or a civilian function in the contemplation of the Constitution? Unquestionably the latter. An opinion by a New York surrogate deals fairly, though non authoritatively, with the subject field: "The President receives his bounty for his services, rendered every bit Primary Executive of the Nation, not for the individual parts of his duties. No part of his compensation is paid from sums appropriated for the armed forces or naval forces; and it is every bit clear under the Constitution that the President'south duties as Commander in Main stand for merely a role of duties ex officio equally Chief Executive [Article II, sections 2 and three of the Constitution] and that the latter'due south role is a civil office. [Article II, department 1 of the Constitution . . . .] The President does not enlist in, and he is not inducted or drafted into, the armed forces. Nor, is he subject field to courtroom-martial or other military subject field. On the contrary, Article II, section 4 of the Constitution provides that 'The President, [Vice President] and All Civil Officers of the U.s. shall be removed from Office on Impeachment for, and Confidence of Treason, Bribery or other loftier Crimes and Misdemeanors.' . . . The last two War Presidents, President Wilson and President Roosevelt, both clearly recognized the civilian nature of the President's position as Commander in Chief. President Roosevelt, in his Navy Day Entrada speech at Shibe Park, Philadelphia, on Oct 27, 1944, pronounced this principle as follows:–'It was due to no accident and no oversight that the framers of our Constitution put the command of our armed forces under civilian authorization. It is the duty of the Commander in Chief to appoint the Secretaries of State of war and Navy and the Chiefs of Staff.' It is too to exist noted that the Secretarial assistant of State of war, who is the regularly constituted organ of the President for the administration of the military establishment of the Nation, has been held past the Supreme Courtroom of the Usa to be merely a noncombatant officer, not in military service. ( United states v. Burns,

). On the general principle of civilian supremacy over the military, by virtue of the Constitution, it has recently been said: 'The supremacy of the civil over the armed forces is one of our great heritages.' Duncan five. Kahanamoku, ." xc

Footnotes

1

The Federalist No. 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

2

3 J. Story, Commentaries on the Constitution of the United States 1486 (1833).

3

Fleming v. Page, 50 U.Due south. (9 How.) 603, 615, 618 (1850).

4

Ex parte Milligan, 71 U.Due south. (4 Wall.) 2, 139 (1866).

5

ane Stat. 424 (1795): 2 Stat. 443 (1807), now x U.Southward.C. §§ 331-334. See also Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32–33 (1827), asserting the finality of the President's judgment of the existence of a state of facts requiring his exercise of the powers conferred by the deed of 1795.

6

vii J. Richardson, supra, at 3221, 3232.

vii

67 U.S. (2 Bl.) 635 (1863).

eight

7 J. Richardson, supra, at 3215, 3216, 3481.

9

67 U.S. (2 Bl.) at 668–70 .

10

Run across generally, E. Corwin, Total State of war and the Constitution (1946).

11

12 Stat. 326 (1861).

12

J. Randall, Constitutional Issues Under Lincoln 118–139 (rev. ed. 1951).

13

Due east.m., Chaser General Biddle'south justification of seizure of a plant during Globe War Ii: "As Master Executive and as Commander-in-Chief of the Army and Navy, the President possesses an aggregate of powers that are derived from the Constitution and from diverse statutes enacted past the Congress for the purpose of carrying on the state of war. . . . In time of war when the beingness of the nation is at stake, this aggregate of powers includes dominance to take reasonable steps to prevent nation-wide labor disturbances that threaten to interfere seriously with the conduct of the war. The fact that the initial impact of these disturbances is on the production or distribution of essential civilian goods is not a reason for denying the Main Executive and the Commander-in-Principal of the Ground forces and Navy the power to take steps to protect the nation'south state of war effort." 40 Ops. Atty. Gen. 312, 319-320 (1944). Prior to the actual showtime of hostilities, Chaser General Jackson asserted the same justification upon seizure of an aviation plant. Eastward. Corwin, Full State of war and the Constitution 47-48 (1946).

14

56 Stat. 23 (1942).

15

88 Cong. Rec. 7044 (1942). Congress promptly complied, 56 Stat. 765 (1942), so that the President was non required to act on his ain. But run across Due east. Corwin, supra, 65-66.

16

For a list of the agencies and an account of their creation to the close of 1942, see Vanderbilt, War Powers and Their Administration, in 1942 Annual Survey of American Law 106 (New York Univ.).

17

143 F.second 145 (D.C. Cir. 1944).

18

143 F.second at 149 .

19

E. Corwin, supra at 244, 245, 459.

20

E.O. 9066, 7 Fed. Reg. 1407 (1942).

21

56 Stat. 173 (1942).

22

Hirabayashi v. United States, 320 U.Due south. 81, 91–92 (1943).

23

Korematsu 5. United states, 323 U.S. 214 (1944). Long after, in 1984, a federal court granted a writ of coram nobis and overturned Korematsu'southward conviction, Korematsu five. United States, 584 F. Supp. 1406 (Northward.D.Cal. 1984), and in 1986, a federal court vacated Hirabayashi's conviction for failing to register for evacuation only let stand up the confidence for curfew violations. Hirabayashi v. United states, 627 F. Supp. 1445 (Westward.D.Wash. 1986). Other cases were awaiting, only Congress then implemented the recommendations of the Commission on Wartime Relocation and Internment of Civilians by acknowledging "the key injustice of the evacuation, relocation and internment," and apologizing on behalf of the people of the United States. Pub. L. 100-383, 102 Stat. 903 (1988), fifty United statesC. App. §§ 1989 et seq. Reparations were canonical, and each living survivor of the internment was to be compensated in an amount roughly approximating $20,000.

24

E.O. 8773, 6 Fed. Reg. 2777 (1941).

25

East. Corwin, Total State of war and the Constitution 47–48 (1946).

26

7 Fed. Reg. 237 (1942).

27

57 Stat. 163 (1943).

28

See Vanderbilt, War Powers and their Administration, in 1945 Annual Survey of American Law 254, 271–273 (N.Y. Univ.).

29

E.O. 9370, 8 Fed. Reg. 11463 (1943).

30

56 Stat. 23 (1942).

31

322 U.S. 398 (1944).

32

322 U.S. at 405–06 .

33

Due east. Corwin, supra, at 249-250.

34

Proc. 2714, 12 Fed. Reg. 1 (1947).

35

S.J. Res. 123, 61 Stat. 449 (1947).

36

Woods 5. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948).

37

61 Stat. 193 (1947).

38

62 Stat. 604 (1948).

39

Defence force Production Act of 1950, 64 Stat. 798.

40

E.O. 10161, 15 Fed. Reg. 6105 (1950).

41

333 U.S. 138 (1948).

42

333 U.S. at 143–44 .

43

333 U.S. at 146–47 .

44

335 U.S. 160, 175 (1948).

45

See A. Kelly & Westward. Harbison, The American Constitution: Its Origins and Development, ch. 31 (4th ed. 1970).

46

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

47

§ 301(1), 55 Stat. 838, 839-840 (1941).

48

91 Stat. 1626, 50 U.Due south.C. §§ 1701-1706.

49

Congress authorized the declaration of a national emergency based only on "any unusual and boggling threat, which has its source in whole or substantial office exterior the Us, to the national security, foreign policy, or the economic system of the United States . . . ." fifty U.S.C. § 1701.

50

Pub. 50. No. 94-412, xc Stat. 1255 (1976).

51

See the discussion in National Commitments Resolution, Study of the Senate Committee on Foreign Relations, S. Rep. No. 91-129, 91st Congress, 1st sess. (1969); U.S. Commitments to Strange Powers: Hearings Before the Senate Commission on Foreign Relations, 90th Congress, 1st sess. (1967) at 16–19 (Professor Bartlett).

52

Meet word under Article I, § eight, cls. 11-14.

53

J. Clark, Memorandum by the Solicitor for the Department of Land, in Right to Protect Citizens in Foreign Countries by Landing Forces (1912).

54

Id. (Washington: 1929; 1934); M. Offutt, The Protection of Citizens Abroad by the Military of the Usa (1928); J. Rogers, World Policing and the Constitution (1945). The burden of the final cited book was to establish that the President was empowered to participate in United Nations peacekeeping deportment without having to seek congressional dominance on each occasion; information technology may be said to be 1 of the earliest, if not the primeval, propoundings of the doctrine of inherent presidential powers to utilise troops away exterior the narrow compass traditionally accorded those powers.

55

Eastward.k., H. Rep. No. 127, 82d Congress, 1st Sess. (1951), 55–62; Corwin, Who Has the Power to Make State of war? New York Times Magazine (July 31, 1949), 11; Dominance of the President to Repel the Attack in Korea, 23 Dept. State Balderdash. 173 (1950); Department of State, Historical Studies Partitioning, Armed Actions Taken by the United States Without a Declaration of War, 1789-1967 (Res. Proj. No. 806A (Washington: 1967)). That the compilation of such lists was more than a defense force confronting public criticism can be gleaned from a revealing discussion in Secretary of State Acheson'southward memoirs detailing why the President did not seek congressional sanction for sending troops to Korea. "There has never, I believe, been any serious dubiousness—in the sense of non-politically inspired incertitude—of the President's constitutional authority to do what he did. The basis for this conclusion in legal theory and historical precedent was fully set out in the State Department'south memorandum of July 3, 1950, extensively published. Merely the wisdom of the decision not to ask for congressional approval has been doubted. . . ."

After discussing several reasons establishing the wisdom of the determination, the Secretarial assistant continued: "The President agreed, moved also, I remember, by another passionately held conviction. His smashing office was to him a sacred and temporary trust, which he was adamant to pass on unimpaired past the slightest loss of ability or prestige. This attitude would incline him strongly confronting whatsoever attempt to divert criticism from himself by action that might plant a precedent in derogation of presidential ability to send our forces into battle. The memorandum that nosotros prepared listed eighty-seven instances in the by century in which his predecessors had washed this. And thus yet some other conclusion was made." D. Acheson, Nowadays at the Cosmos 414, 415 (1969).

56

War Powers Legislation: Hearings Earlier the Senate Foreign Relations Committee, 92d Congress, 1st Sess. (1971), 347, 354–355, 359–379 (Senator Goldwater); Emerson, War Powers Legislation, 74 Due west. Va. L. Rev. 53 (1972). The nearly complete list as of the time prepared is Collier, Instances of Use of United states of america War machine Abroad, 1798–1989, Cong. Res. Serv. (1989), which was cited for its numerical total in United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). For an effort to reconstruct the development and continuation of the listings, see F. Wormuth & Eastward. Firmage, To Chain the Dog of War 142–145 (2d ed. 1989).

57

Of form, considerable fence continues with respect to the meaning of the historical record. For reflections of the narrow reading, come across National Commitments Resolution, Study of the Senate Commission on Foreign Relations, S. Rep. No. 91-129, 1st Sess. (1969); J. Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (1993). On the broader reading and finding great presidential power, see A. Sofaer, War, Foreign Diplomacy and Constitutional Power: The Origins (1976); Emerson, Making War Without a Declaration, 17 J. Legis. 23 (1990).

58

For some popular defenses of presidential power during the "Smashing Fence," see Corwin, Who Has the Ability to Brand War? New York Times Magazine (July 31, 1949), eleven; Commager, Presidential Power: The Issue Analyzed, New York Times Magazine (Jan 14, 1951), 11. Cf. Douglas, The Constitutional and Legal Basis for the President's Action in Using Armed forces to Repel the Invasion of Southward Korea, 96 Cong. Rec. 9647 (1950). President Truman and Secretary Acheson utilized the argument from the U.N. Charter in defending the United States actions in Korea, and the Lease defense has been made much of since. See, e.g., Stromseth, Rethinking War Powers: Congress, the President, and the United Nations, 81 Geo. L. J. 597 (1993).

59

Consignment of Basis Forces of the United States to Duty in the European Area: Hearings Earlier the Senate Foreign Relations and Armed Services Committees, 82d Congress, 1st Sess. (1951), 92.

60

Meeker, The Legality of United States Participation in the Defense of Viet Nam, 54 Dept. State Bull. 474, 484–485 (1966). See also Moore, The National Executive and the Employ of the Military machine Abroad, 21 Naval State of war College Rev. 28 (1969); Wright, The Power of the Executive to Use Military machine Forces Away, 10 Va. J. Int. Fifty. 43 (1969); Documents Relating to the State of war Powers of Congress, The President'southward Authority as Commander-in-Chief and the War in Indochina, Senate Committee on Foreign Relations, 91st Congress, 2d sess. (Comm. Print) (1970), i (Under Secretarial assistant of State Katzenbach), 90 (J. Stevenson, Legal Adviser, Section of State), 120 (Professor Moore), 175 (Assistant Chaser General Rehnquist).

61

E.thou., F. Wormuth & Eastward. Firmage, To Chain the Dog of War (2d ed. 1989), F.; J. Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (1993); U.S. Commitments to Foreign Powers: Hearings Before the Senate Committee on Foreign Relations, 90th Congress, 1st sess. (1967), 9 (Professor Bartlett); War Powers Legislation: Hearings Before the Senate Committee on Foreign Relations, 92d Cong., 1st sess. (1971), 7 (Professor Commager), 75 (Professor Morris), 251 (Professor Stonemason).

62

Pub. L. No. 93-148, 87 Stat. 555, 50 United statesC. §§ 1541-1548. For the congressional intent and explanation, run across H. Rep. No. 93-287, S. Rep. No. 93–220, and H. Rep. No. 93-547 (Conference Study), all 93d Congress, 1st sess. (1973). The President's veto message is H. Doc. No. 93-171, 93d Congress. 1st Sess. (1973). All this material is collected in The War Powers Resolution: Relevant Documents, Reports, Correspondence, Firm Commission on Strange Affairs, 103d Cong., 2d Sess. (Comm. Impress) (GPO: 1994), 1-46. For a narrative account of passage and an cess of the disputed compliance to date, from the congressional bespeak of view, see The State of war Powers Resolution, A Special Study of the House Committee on Foreign Affairs, 102d Cong., second Sess. (Comm. Impress) (GPO: 1982).

63

87 Stat. 554, two(c), fifty U.S.C. § 1541(c).

64

l United states of americaC. § 1543(a).

65

50 The statesC. § 1544(b).

66

Id. at § 1544(c). It is the general consensus that, following INS v. Chadha, 462 U.S. 919 (1983), this provision of the Resolution is unconstitutional.

67

l U.S.C. § 1547(a).

68

Encounter the text of the reports in The War Powers Resolution: Relevant Documents, Reports, Correspondence, supra at 47 (Pres. Ford on ship of refugees from Danang), 55 (Pres. Carter on attempted rescue of Iranian hostages), 73 (Pres. Reagan on apply of troops in Lebanon), 113 (Pres. Reagan on Grenada), 144 (Pres. Bush on Panama), 147, 149 (Pres. Bush-league on Persian Gulf), 189 (Pres. Bush on Somalia), 262 (Pres. Clinton on Haiti).

69

See Crisis in the Western farsi Gulf Region: U.S. Policy Options and Implications: Hearings Earlier the Senate Commission on War machine, 101st Cong., 2d Sess. (1990), 701 (Secretary Cheney) (President did not require "any boosted authorization from the Congress" earlier attacking Republic of iraq). On the mean solar day following his request for supporting legislation from Congress, President Bush, in reply to a question nearly the requested action, stated: "I don't think I need information technology. . . . I experience that I have the dominance to fully implement the United Nations resolutions." 27 Weekly Comp. Pres. Doctor. 25 (Jan. 8, 1991).

70

Pub. L. No. 102-i, 105 Stat. 3 (1991).

71

Pub. L. No. 107-243; 116 Stat. 1498 (2002). The Business firm canonical the resolution by a vote of 296-133. The Senate passed the House version of H.J. Res. 114 past a vote of 77-23.

72

See President's Statement on Signing H.J. Res. 114, Oct. xvi, 2002, available at [http://usinfo.state.gov/dhr/Archive/2003/October/09-906028.html].

73

See, on proposals to amend and on congressional responsibility, J. Ely, War and Responsibility: Ramble Lessons of Vietnam and Its Backwash (1993).

74

For a review of how several wartime Presidents take operated in this sphere, run across The Ultimate Decision: The President as Commander in Chief (E. May ed., 1960).

75

Fleming 5. Folio, 50 U.Due south. (nine How.) 603, 615 (1850).

76

Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v. Eisentrager, 339 U.South. 763, 789 (1950).

77

Totten v. United States, 92 U.South. 105 (1876).

78

Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1875); Haver five. Yaker, 76 U.Due south. (9 Wall.) 32 (1869).

79

Mitchell five. Harmony, 54 U.S. (xiii How.) 115 (1852); United States v. Russell, 80 U.S. (13 Wall.) 623 (1871); Totten 5. United States, 92 U.Due south. 105 (1876); 40 Ops. Atty. Gen. 250, 253 (1942).

eighty

Cf. the Protocol of August 12, 1898, which largely foreshadowed the Peace of Paris, 30 Stat. 1742 and President Wilson'southward Xiv Points, which were incorporated in the Armistice of Nov 11, 1918.

81

Fleming v. Page, fifty U.South. (9 How.) 603, 615 (1850).

82

Santiago five. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, see Dooley v. United states of america, 182 U.S. 222, 230–31 (1901).

83

Swaim 5. United States, 165 U.Southward. 553 (1897); and cases in that location reviewed. Run across likewise Givens five. Zerbst, 255 U.South. 11 (1921).

84

15 Ops. Atty. Gen. 297, n; cf. one Ops. Atty. Gen. 233, 234, where the contrary view is stated past Attorney General Wirt.

85

Ex parte Quirin, 317 U.Due south. 1, 28–29 (1942).

86

General Orders, No. 100, Official Records, War Rebellion, ser. III, vol. 3; Apr 24, 1863.

87

Meet, e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); Us v. Corson, 114 U.S. 619 (1885).

88

10 U.S.C. § 804.

89

Mullan v. United states, 140 U.S. 240 (1891); Wallace five. U.s.a., 257 U.South. 541 (1922).

90

Surrogate's Court, Duchess County, New York, ruling July 25, 1950, that the manor of Franklin D. Roosevelt was non entitled to tax benefits under sections 421 and 939 of the Internal Revenue Code, which extends certain revenue enhancement benefits to persons dying in the war machine services of the Us. New York Times, July 26, 1950, p. 27, col. 1.

brentonwilts1977.blogspot.com

Source: https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/commander-in-chief-power-doctrine-and-practice

Share this post