Barron & Lederman on Exclusive Article II Powers:
David Barron & Marty Lederman have published a new article on war powers, The Commander In Chief At The Lowest Ebb — Framing The Problem, Doctrine, And Original Understanding. From the introduction:
This Article. . . is the first of a two-part effort to determine how the constitutional argument for preclusive executive war powers, now being pressed so boldly, is best conceived. Is it properly understood to be rooted in fidelity to the founding generation? Does it reflect instead the principles established by a longstanding constitutional tradition that, although concededly at odds with that early understanding, has emerged over time as exigencies presented themselves? Or is it instead dependent on the stark contention that the world has changed, due to either the advent of nuclear weapons or the rise of terrorism, in such a way as to render obsolete and intolerable the constitutional mechanisms for checking the Commander in Chief that earlier generations consistently accepted?The conclusion: The Bush Administration's constitutional vision is all about a living, breathing Article II.
So it is your contention that the Chairman of the Constitutional Convention, fresh from commanding the Army for 8 years, helping to write the job description for his next gig, goes along wholeheartedly without a peep to running the army as the gofer for a body of know-nothings.
I think not.
I think it is more likely that Washington told the convention: "This is how its going to work. Any questions? Well, now that we have that settled, on to Article III."
I would suggest that academics focus more on what they are trying to say, and less on explaining why they are saying it.
Wow, your apparent assumptions about Washington are just totally wrong. Washington very clearly understood, during the Revolution, that he ran the Army as the gofer for a body of know-nothings. Indeed, Washington was often at pains to emphasize the supremacy of civilian leadership of the military. It's really what made him such a great American.
Kazinski, despite your derision, Porlock's position is expressly mandated by the language of the document. All the war powers (other than the commander in chief clause) are included in Article I and with specificity, and the President is required at all times to take care that the laws be faithfully executed. That indicates that the "know-nothings" will regulate the military and the President will command the military within the limitations set by Congress.
That is wrong. If Congress authorizes war against Iraq, Congress may not order the CIC to march up the left side of the Euphrates to Baghdad instead of the right side. If the CIC orders the army to go up the left side the generals better do it or resign.
That is the point I was making and I stick by it.
Absent authority one way or the other, I think the Commander-in-Chief clause may just mean that the generals and admirals have to listen to the President, not that the President need not listen to Congress.
Washington's example IS instructive. He communicated often by letter to the Congress, asking for supplies and changes to the Articles of War, but since letters were subject to intercept, he didn't inform them of ongoing or planned operations. And they in their turn had to trust his military judgement, since he was the best General they could find. So they, like everybody else, learned about the battle results from the newspapers and riders.
Nevertheless, at one point early in the war, the Congress began to wonder if they had made the right choice, and started to look at possible replacements. Washington had to drop what he was doing, go to Philadelphia, and make his case personally.
Would that we would have a Congress and President that communicated with, trusted and deferred to each other in like manner. That would help prevent the current situation where the war is "heavily lawyered, but not well".
The Revolution provided the Framers with empirical evidence for the undesirability of conducting war by committee. As for contemporary evidence, Rufus King rejected giving the Congress the power to "make war" in favor of the power to "declare war" precisely because the former might be misunderstood as granting command of the Armed Forces. Farrand, 2 Records of the Federal Convention of 1787 318-19 (1911). The Supreme Court explicitly acknowledged that Congress cannot make laws commanding the military in Ex Parte Milligan, 71 U.S. 2, 139 (1866) (Chase, C.J., concurring) and Fleming v. Page, 50 U.S. 603, 615 (1850).
A very timely article, especially in view of the discussion over Yoo's "advice" on presidential powers. Many thanks for the link.
Yep. Quite clearly, you are not thinking.
CiC is part of the job of President, not some separate office. Yes, Washington went along with it, because he, like many others at that time, felt that a large, standing army, was anathema.
Basically, CinC isn't a position of power but of responsibility; and that responsibility answers to Congress.
It isn't a black and white issue. It's more appropriate to view Congressional versus Presidential control of the military as a spectrum, with broad regulatory and ex ante authorization powers on the Congressional end, and specific and ex poste authorization powers on the Presidential end. Thus, Congress has a strong power for conditioning authorization on specified Presidential conduct ex ante, such that the President can elect to engage or not engage on those terms, e.g. the Quasi War, but Congress is far more limited once hostilities have begun.
Frank Cross,
I'm curious how you think "the significance of Farrand is pretty debatable" given that it reflects the convention itself, along with its compromises, versus the far more party and idealogically specific statements to the various legislatures. I'm not arguing that the latter aren't worthy of consideration, but I would argue that Farrand should prevail.
“Mr. PINCKNEY opposed ... vesting this power in the Legislature. Its proceedings were too slow. It would meet but once a year. ...
Mr. BUTLER ... was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it. ...
Mr. GERRY never expected to hear in a republic a motion to empower the Executive alone to declare war.”
Madison and Gerry moved to amend the clause to its current language. Their reason is very instructive: “Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.” This motion passed unanimously.
Several points appear from this. First, it's clear from Gerry's comment that they were interpreting the term "make war" to be equivalent to "declare war". Thus, the change simply clarified the term. Second, the specific reason Madison and Gerry gave for the change -- "repel sudden attacks" -- does nothing to increase Executive power. Third, Rufus King's statement, interesting as it is, can't define the term because it wasn't his amendment which became the final language, it was the amendment of Madison and Gerry. I doubt you'd find two more unlikely candidates for claims of vast executive power.
Finally, I'd note that the actual practice of the Founding Era provides a better guide than the legislative history (which is bad originalism at best). As others have noted, that actual practice -- i.e., Washington's behavior -- isn't very helpful to proponents of exalted war powers.
He didn't have to say anything at all. Just by being there, the one indispensable man of the Revolution, he kept everyone else on their best behavior and focused on the task at hand: doing right for all those who had sacrificed their lives and property for the promise of the Revolution, and working together to make the necessary compromises to birth a new nation. Nobody wanted to act like a jerk or argue in bad faith with Washington watching. They knew that Washington would very much like to be at Mt. Vernon, but was here by his sense of duty to the nation. That attitude rubbed off. And finally, knowing that Washington had just won a war against a monarch, and was personally set against monarchial powers, there was little support for the creation of a new kind of one.
And King's statement illustrates that in fact there was more than one way to understand this.
Madison and Gerry's amendment illustrates that they did not consider the power to declare war to be coextensive with the power to make war.
In addition to David Nierporent's textual comment, I would pick up on your comment "that the actual practice of the Founding Era provides a better guide than the legislative history." War by committee during the Revolution proved to be a disaster, hence the need to place command in a single individual, and the context for Pinkney's comment about legislative proceedings being "too slow." Legislatures craft compromises by agreement; military commanders issue orders for execution.
As for the power to repel attacks, modern scholars have applied this analysis to troops in the field as well, i.e. once Congress has authorized military action, it can't subsequently hamstring the President in a manner which negatively impacts his ability to protect forces in the field. See my 10:52PM comment re: a temporal spectrum, with the critical time being Congressional authorization for use of force.
For anyone in the peanut gallery who wants to read the convention notes for themselves, see LINK and turn to image 318.
David, you need to read it more carefully. Gerry was clearly responding to Butler, who wanted to vest the power in the Executive. Butler used the term "make", Gerry responded with "declare". Gerry, at least, understood the two terms as equivalent.
Also, if we're going to be discussing this, it's worth quoting the comments of Mason:
Mason "was agst. giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make." Again, Mason's comment clearly indicates that they understood "make" to mean the same as "declare"; if "declare" were narrower, as you suggest, then Mason's reluctance to give power to the Executive makes no sense.
After Madison's and Gerry's amendment passed, Pinckney (who supported giving the power to the Executive) moved to strike the whole clause. He didn't get a second.
All this, of course, has to be understood in the context of the British system. The King had the power to "make" (i.e., "declare": compare Federalist 69 and Blackstone, Book 1, p. 249) war and peace, as well as being CinC. The Constitution thus narrowed the executive power from the British system.
I didn't see this before I posted my response to David, but I think that response covers your first and last points.
I agree with you that the experience of the Revolution demonstrated severe problems with having Congress run a war. That's a bit different, though, from your claim to find textual support in Madison's and Gerry's amendment. For the reasons I gave, I don't think that helps you. Moreover, I don't think the proceedings in Convention meet the current understanding of "original public meaning" or similar phrase. Thus, your point about the experience of the Revolution is much more relevant than the textual argument anyway.
As for how the public viewed the clause, we have some clues from contemporaneous statements:
Butler in the SC Convention: "It was at first proposed to vest the sole power of making peace or war in the Senate; but this was objected to as inimical to the genius of a republic, by destroying the necessary balance they were anxious to preserve. Some gentlemen were inclined to give this power to the President; but it was objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction."
James Wilson in his Lectures on Law: "As the law is now received in England, the king has the sole prerogative of making war. On this very interesting power, the constitution of the United States renews the principles of government, known in England before the conquest. This indeed, as we are told by a well informed writer, may be accounted the chief difference between the Anglo-Saxon and the Anglo-Norman government. In the former, the power of making peace and war was invariably possessed by the wittenagemote; and was regarded as inseparable from the allodial condition of its members. In the latter, it was transferred to the sovereign...."
St. George Tucker, Commentaries on Blackstone: "In England the right of making war is in the king. In Sweden it was otherwise after the death of Charles XII. until the revolution in 1772, when from a limited monarchy, Sweden became subject to a despot. With us the representatives of the people have the right to decide this important question, conjunctively with the supreme executive who may, on this occasion as on every other, (except a proposal to amend the constitution,) exercise a qualified negative on the joint resolutions of congress; but this negative is unavailing if two thirds of the congress should persist in an opposite determination; so that it may be in the power of the executive to prevent, but not to make, a declaration of war."
There are others as well, particularly Story. I picked the ones I did because they show the alternate use of "make" and "declare".
Second, if legislative history is a tough way to determine these things, then the Cliff's Notes of legislative history are even tougher. You're not talking about Mason's comment; you're talking about Madison's summary of Mason's comment.
Third, you yourself quote Mason's position as, "He preferred declare to make." If Mason understood them to be the same, that preference would make no sense.
Fourth, if we're talking about how the words were understood, then it hardly makes sense to discard the usage by others of the time. In other words, you can't ignore King's comment, which gives us insight into that, regardless of whether they passed his amendment or someone else's. And once you look at King's comment, you can see how Mason's reluctance does make sense: the power to declare war is narrower than the power to make war, but not lesser.
Raising, provisioning and ordering the Army was a plenty big enough of a role for Congress, and really all they are suited for, then and now.
Very true, except for leaving out deciding when military force should be used. But it leaves unsettled the question of whether the CinC can act outside the boundaries Congress sets: is he their creature, or his own?
Their are quite a few powers enumerated in Art. II. Take a look, then let us know if you still think "the President has only two powers . . ." As applied to the current discussion, Congress cannot order the President to undertake military action - it can authorize and appropriate funds, but if the President disagrees with any conditions or restrictions set by Congress, he has no obligation to take action.
This would be a better point if we could be certain that King had spoken openly on the floor. It's not at all clear that he did. In Madison's Notes, he quotes the debate on the clause (most of which has been quoted here) and then the vote is listed, each state yay or nay. Next to CT is an asterisk (footnote), which reads: "On the remark by Mr. King that "make" war might be understood to "conduct" it which was an Executive function, Mr. Elseworth gave up his objection, and the vote of Cont. was changed to-ay."
Maybe King said it so everyone could hear, maybe he just spoke to Ellsworth and Madison overheard.
As for the rest of your points, I'll submit on the papers.
Yes. Sorry if my post didn't make that clear. I don't know how it looks on the page in Madison's original notes, but Farrand has it as a footnote to the vote tabulation.
Agreed.
Was “execute the laws faithfully” ever understood by anyone except me to mean the President only has two powers: the Executive power of saying “How high?” when Congress says “Jump” and the veto power of saying “Get a 2/3 vote first, and then tell me how high” when Congress says “Jump!”?
Lots of people, such as Steve2 here exemplifies, seem to think that the President (the only magistrate in America elected by the people as a whole) should act merely as the lapdog of that coterie of particularist interests known as the Congress. While some states have historically been set up that way, with an overweening legislature and essentially powerless executive, it’s never been the way of the United States — except perhaps during that constitutional interregnum of dismal failure known as the Articles of Confederation. The executive of the fledgling United States was not set up that way, particularly when foreign powers are to be encountered in war and peace.
Insightful observer of early American democracy, Alexis de Tocqueville put it well, writing in his famous masterpiece Democracy in America (1835-40):
I submit that much of what the Democratic-controlled Congress and the left have been agitating for over many decades time is, in effect, the “incredible shrinking Presidency” — especially with regard to constraining the president’s freedom to act as commander in chief in time of war. Not only is this quite ahistorical in terms of the powers that the president has constitutionally wielded beyond the frontiers of the country and in time of war, but it’s manifestly dangerous, potentially disastrous, in a world where many tyrants continue to conspire and seek to dominate.
It’s not protecting the Constitution of the United States to seek to turn the president into a eunuch.
John Locke: "“In all Cases ... the Legislative is the Supreme Power. For what can give Laws to another must [necessarily] be superior to him. [A]nd since the Legislative is ... Legislative of the Society, ... by the right it has to make Laws for all the parts and for every Member of the Society, prescribing Rules to their actions and giving power of Execution where they are transgressed, the Legislative must needs be the Supreme, and all other Powers in any Members or parts of the Society, derived from and subordinate to it.”
Roger Sherman: the Executive is “nothing more than an institution for carrying the will of the Legislature into effect.”
James Wilson: "did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. ... The only powers he conceived strictly Executive were those of executing the laws, and appointing officers....”
Consider, also, just how weak the Executive was at the time Toqueville wrote compared to today. While Hamilton surely would applaud the accretion of power to the Executive, it's hard to picture many other Founders doing so, and pretty easy to picture most of them appalled by it. In any originalist argument, the President would be MUCH weaker than most people today advocate.
I. TEXT
B&L note that the term "Commander in Chief" implies that the President exercises nearly total authority over military matters, but argue that such an implication is limited by Article I's grant of a handful of enumerated powers over military matters. The authors reason quite correctly that to interpret the term commander in chief to grant total authority over military matters would render several provisions of Article I nullities.
However, B&L commit the same sin on behalf of Congress which they justifiably criticize those like Yoo of committing in behalf of the Executive. For example, B&L appear to assume that the Article I clause permitting Congress to regulate the uniformed services and the Necessary and Proper Clause impliedly grant Congress extensive command authority to direct the activities of the military. However, this implication would similarly render the President's CiC power a nullity.
The text of the Constitution does not support either the Presidential supremacy of Yoo or the Congressional supremacy of B&L.
In his book "America's Constitution: A Biography," Professor Amar suggests a superior interpretation of the text of Articles I and II. Article I expressly limits Congress to the specific enumerated powers contained therein. In contrast, Article II makes general grants of Executive and CiC power to the President, implying that the President is not limited to powers specifically enumerated in Article II and may perform all acts which can be reasonably be interpreted to be executive or command in nature.
However, Amar's reasonable interpretation leaves us with areas of overlap between Article I's specifically enumerated powers over the military and the general military command authority of the President.
Under the basic tenants of statutory interpretation, specific language takes precedence over general language. Consequently, a more reasonable application of Articles I and II would hold that Congress' exercise of a specific Article I power over the military takes precedence over a conflicting exercise of the President's general executive and CiC powers. Thus, the President exercises plenary authority over all executive and CiC matters which are not expressly enumerated in Article I. In any area enumerated in Article I, the President may still exercise his or her executive and CiC authority in the absence of congressional action. However, when Congress exercises a specific Article I power, the general power of the President gives way.
Article II makes the President CiC and Article I nowhere grants Congress command authority over the troops. Consequently, B&L's interpretation of the N&P Clause to imply command authority is contrary to the express grants of authority made in Articles I and II.
Further, Article I's grant to Congress of the power to regulate the uniformed services simply means that Congress can enact legislation like the UCMJ which establishes the rules for the good order and discipline of individual members of the armed services. This clause has never been interpreted to allow Congress to exercise command authority to direct the operations of the military.
Finally, Congress' power to declare war simply means that a President may not start a war without the approval of Congress. The power to declare war no more implies a command authority over the conduct of that war than Congress' power to confirm ambassadors implies that Congress may instruct the ambassador who to conduct his or her business. In footnote 136, B&L cite to some dicta from Bas v. Tigny and Talbot v. Seeman suggesting that Congress has the power to declare a "partial war" limited in place, objects and time. However, the existence of such a power is pure speculation since Congress has never declared a "partial war" (which would make no practical sense) and no Court has had the opportunity to render a ruling finding such a power. In any case, even if Congress had the power to say declare war against Iraq and limit the scope of that war to the geographical confines of Iraq, with the objective of regime change and limit the period of time to complete the task to one year, this is not the power to command and direct troops in the completion of that limited task. Nor is this the power to revisit the declaration of war at a later time and amend it.
Therefore, B&L's premise that Congress has command authority to direct the operations of the military which would lead to a conflict with the President's CiC power does not appear to have a basis in the text of the Constitution.
II. Original Understandings
B&L's citations to the powers of the British Parliament and Continental Congress over their respective militaries are inapposite.
The British Parliament has gradually taken nearly all executive powers from the Crown over the centuries, including the executive power to command the military.
The Continental Congress was even more powerful than Parliament. Britain had a head of state in the King, who still exercised some if not all executive power. In stark contrast, the Colonies did not have a head of state during the Revolution and the Continental Congress exercised all national executive power.
In stark contrast, our Constitution makes the President the sole executive and CiC except for a few enumerated powers reserved to Congress by Article II.
Likewise, B&L's citation to Revolutionary era state constitutions is not particularly availing. Revolutionary era state constitutions that granted the title of CiC also enumerated the CiC powers the governor could exercise. In contrast, the Constitution's Article I enumerates and thus limits the powers of Congress over the military, while Article II makes the President sole executive and CiC without any limiting language apart from the enumerated delegations by Article I to Congress.
B&L then argue that the lack of debate over the respective roles of the President and Congress in military matters is evidence that the Founders did not intend to depart from the practices of the British Parliament or the Continental Congress. This contention does not comport with history. The Constitution was a complete departure from the parliamentary form of government which was the basis of the British Parliament and the Continental Congress. Unlike those prior governments, the Constitution created a branch of government separate from the legislature which was granted all executive power. Indeed, Article II's express grant of CiC power to the President is itself a drastic departure from the preceding Articles of Confederation which granted Congress a circumscribed power to appoint a commander in chief.
The relative roles of the President and Congress over the military which are suggested by the text of the Constitution are the same as the roles pitched to the People during the ratification debates. Hamilton's Federalist 69 argues that the President's CiC power encompasses "the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature." Hamilton implies here that the President's CiC power to command and direction of the military are distinct and different from Congress' power to regulate the military.
In sum, neither the text or the original intent of the Constitution supports the contention that Congress possesses the power to command and direct military operations.
As a final note, it is unfortunate that Professor Balkin declines to allow criticism of his theories at the his Balkinization threads Barron and Lederman's article spends an inordinate amount of time exploring the question of whether the President's Article II CiC power may preempt Congress command authority to direct military operations when the Constitution does not in fact grant Congress any such command authority.
I. TEXT
B&L note that the term "Commander in Chief" implies that the President exercises nearly total authority over military matters, but argue that such an implication is limited by Article I's grant of a handful of enumerated powers over military matters. The authors reason quite correctly that to interpret the term commander in chief to grant total authority over military matters would render several provisions of Article I nullities.
However, B&L commit the same sin on behalf of Congress which they justifiably criticize those like Yoo of committing in behalf of the Executive. For example, B&L appear to assume that the Article I clause permitting Congress to regulate the uniformed services and the Necessary and Proper Clause impliedly grant Congress extensive command authority to direct the activities of the military. However, this implication would similarly render the President's CiC power a nullity.
The text of the Constitution does not support either the Presidential supremacy of Yoo or the Congressional supremacy of B&L.
In his book "America's Constitution: A Biography," Professor Amar suggests a superior interpretation of the text of Articles I and II. Article I expressly limits Congress to the specific enumerated powers contained therein. In contrast, Article II makes general grants of Executive and CiC power to the President, implying that the President is not limited to powers specifically enumerated in Article II and may perform all acts which can be reasonably be interpreted to be executive or command in nature.
However, Amar's reasonable interpretation leaves us with areas of overlap between Article I's specifically enumerated powers over the military and the general military command authority of the President.
Under the basic tenants of statutory interpretation, specific language takes precedence over general language. Consequently, a more reasonable application of Articles I and II would hold that Congress' exercise of a specific Article I power over the military takes precedence over a conflicting exercise of the President's general executive and CiC powers. Thus, the President exercises plenary authority over all executive and CiC matters which are not expressly enumerated in Article I. In any area enumerated in Article I, the President may still exercise his or her executive and CiC authority in the absence of congressional action. However, when Congress exercises a specific Article I power, the general power of the President gives way.
Article II makes the President CiC and Article I nowhere grants Congress command authority over the troops. Consequently, B&L's interpretation of the N&P Clause to imply command authority is contrary to the express grants of authority made in Articles I and II.
Further, Article I's grant to Congress of the power to regulate the uniformed services simply means that Congress can enact legislation like the UCMJ which establishes the rules for the good order and discipline of individual members of the armed services. This clause has never been interpreted to allow Congress to exercise command authority to direct the operations of the military.
Finally, Congress' power to declare war simply means that a President may not start a war without the approval of Congress. The power to declare war no more implies a command authority over the conduct of that war than Congress' power to confirm ambassadors implies that Congress may instruct the ambassador who to conduct his or her business. In footnote 136, B&L cite to some dicta from Bas v. Tigny and Talbot v. Seeman suggesting that Congress has the power to declare a "partial war" limited in place, objects and time. However, the existence of such a power is pure speculation since Congress has never declared a "partial war" (which would make no practical sense) and no Court has had the opportunity to render a ruling finding such a power. In any case, even if Congress had the power to say declare war against Iraq and limit the scope of that war to the geographical confines of Iraq, with the objective of regime change and limit the period of time to complete the task to one year, this is not the power to command and direct troops in the completion of that limited task. Nor is this the power to revisit the declaration of war at a later time and amend it.
Therefore, B&L's premise that Congress has command authority to direct the operations of the military which would lead to a conflict with the President's CiC power does not appear to have a basis in the text of the Constitution.
II. Original Understandings
B&L's citations to the powers of the British Parliament and Continental Congress over their respective militaries are inapposite.
The British Parliament has gradually taken nearly all executive powers from the Crown over the centuries, including the executive power to command the military.
The Continental Congress was even more powerful than Parliament. Britain had a head of state in the King, who still exercised some if not all executive power. In stark contrast, the Colonies did not have a head of state during the Revolution and the Continental Congress exercised all national executive power.
In stark contrast, our Constitution makes the President the sole executive and CiC except for a few enumerated powers reserved to Congress by Article II.
Likewise, B&L's citation to Revolutionary era state constitutions is not particularly availing. Revolutionary era state constitutions that granted the title of CiC also enumerated the CiC powers the governor could exercise. In contrast, the Constitution's Article I enumerates and thus limits the powers of Congress over the military, while Article II makes the President sole executive and CiC without any limiting language apart from the enumerated delegations by Article I to Congress.
B&L then argue that the lack of debate over the respective roles of the President and Congress in military matters is evidence that the Founders did not intend to depart from the practices of the British Parliament or the Continental Congress. This contention does not comport with history. The Constitution was a complete departure from the parliamentary form of government which was the basis of the British Parliament and the Continental Congress. Unlike those prior governments, the Constitution created a branch of government separate from the legislature which was granted all executive power. Indeed, Article II's express grant of CiC power to the President is itself a drastic departure from the preceding Articles of Confederation which granted Congress a circumscribed power to appoint a commander in chief.
The relative roles of the President and Congress over the military which are suggested by the text of the Constitution are the same as the roles pitched to the People during the ratification debates. Hamilton's Federalist 69 argues that the President's CiC power encompasses "the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature." Hamilton implies here that the President's CiC power to command and direction of the military are distinct and different from Congress' power to regulate the military.
In sum, neither the text or the original intent of the Constitution supports the contention that Congress possesses the power to command and direct military operations. Consequently,
As a final note, it is unfortunate that Professor Balkin declines to allow criticism of his theories at the Balkinization threads like the one I offered above, claiming that such debate will render his thread "unreadable." I will allow others to decide whether my critique makes this thread "unreadable.".
Barron and Lederman's article spends an inordinate amount of time exploring the question of whether the President's Article II CiC power may preempt Congress command authority to direct military operations when the Constitution does not in fact grant Congress any such command authority.
I. TEXT
B&L note that the term "Commander in Chief" implies that the President exercises nearly total authority over military matters, but argue that such an implication is limited by Article I's grant of a handful of enumerated powers over military matters. The authors reason quite correctly that to interpret the term commander in chief to grant total authority over military matters would render several provisions of Article I nullities.
However, B&L commit the same sin on behalf of Congress which they justifiably criticize those like Yoo of committing in behalf of the Executive. For example, B&L appear to assume that the Article I clause permitting Congress to regulate the uniformed services and the Necessary and Proper Clause impliedly grant Congress extensive command authority to direct the activities of the military. However, this implication would similarly render the President's CiC power a nullity.
The text of the Constitution does not support either the Presidential supremacy of Yoo or the Congressional supremacy of B&L.
In his book "America's Constitution: A Biography," Professor Amar suggests a superior interpretation of the text of Articles I and II. Article I expressly limits Congress to the specific enumerated powers contained therein. In contrast, Article II makes general grants of Executive and CiC power to the President, implying that the President is not limited to powers specifically enumerated in Article II and may perform all acts which can be reasonably be interpreted to be executive or command in nature.
However, Amar's reasonable interpretation leaves us with areas of overlap between Article I's specifically enumerated powers over the military and the general military command authority of the President.
Under the basic tenants of statutory interpretation, specific language takes precedence over general language. Consequently, a more reasonable application of Articles I and II would hold that Congress' exercise of a specific Article I power over the military takes precedence over a conflicting exercise of the President's general executive and CiC powers. Thus, the President exercises plenary authority over all executive and CiC matters which are not expressly enumerated in Article I. In any area enumerated in Article I, the President may still exercise his or her executive and CiC authority in the absence of congressional action. However, when Congress exercises a specific Article I power, the general power of the President gives way.
Article II makes the President CiC and Article I nowhere grants Congress command authority over the troops. Consequently, B&L's interpretation of the N&P Clause to imply command authority is contrary to the express grants of authority made in Articles I and II.
Further, Article I's grant to Congress of the power to regulate the uniformed services simply means that Congress can enact legislation like the UCMJ which establishes the rules for the good order and discipline of individual members of the armed services. This clause has never been interpreted to allow Congress to exercise command authority to direct the operations of the military.
Finally, Congress' power to declare war simply means that a President may not start a war without the approval of Congress. The power to declare war no more implies a command authority over the conduct of that war than Congress' power to confirm ambassadors implies that Congress may instruct the ambassador who to conduct his or her business. In footnote 136, B&L cite to some dicta from Bas v. Tigny and Talbot v. Seeman suggesting that Congress has the power to declare a "partial war" limited in place, objects and time. However, the existence of such a power is pure speculation since Congress has never declared a "partial war" (which would make no practical sense) and no Court has had the opportunity to render a ruling finding such a power. In any case, even if Congress had the power to say declare war against Iraq and limit the scope of that war to the geographical confines of Iraq, with the objective of regime change and limit the period of time to complete the task to one year, this is not the power to command and direct troops in the completion of that limited task. Nor is this the power to revisit the declaration of war at a later time and amend it.
Therefore, B&L's premise that Congress has command authority to direct the operations of the military which would lead to a conflict with the President's CiC power does not appear to have a basis in the text of the Constitution.
II. Original Understandings
B&L's citations to the powers of the British Parliament and Continental Congress over their respective militaries are inapposite.
The British Parliament has gradually taken nearly all executive powers from the Crown over the centuries, including the executive power to command the military.
The Continental Congress was even more powerful than Parliament. Britain had a head of state in the King, who still exercised some if not all executive power. In stark contrast, the Colonies did not have a head of state during the Revolution and the Continental Congress exercised all national executive power.
In stark contrast, our Constitution makes the President the sole executive and CiC except for a few enumerated powers reserved to Congress by Article II.
Likewise, B&L's citation to Revolutionary era state constitutions is not particularly availing. Revolutionary era state constitutions that granted the title of CiC also enumerated the CiC powers the governor could exercise. In contrast, the Constitution's Article I enumerates and thus limits the powers of Congress over the military, while Article II makes the President sole executive and CiC without any limiting language apart from the enumerated delegations by Article I to Congress.
B&L then argue that the lack of debate over the respective roles of the President and Congress in military matters is evidence that the Founders did not intend to depart from the practices of the British Parliament or the Continental Congress. This contention does not comport with history. The Constitution was a complete departure from the parliamentary form of government which was the basis of the British Parliament and the Continental Congress. Unlike those prior governments, the Constitution created a branch of government separate from the legislature which was granted all executive power. Indeed, Article II's express grant of CiC power to the President is itself a drastic departure from the preceding Articles of Confederation which granted Congress a circumscribed power to appoint a commander in chief.
The relative roles of the President and Congress over the military which are suggested by the text of the Constitution are the same as the roles pitched to the People during the ratification debates. Hamilton's Federalist 69 argues that the President's CiC power encompasses "the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature." Hamilton implies here that the President's CiC power to command and direction of the military are distinct and different from Congress' power to regulate the military.
In sum, neither the text or the original intent of the Constitution supports the contention that Congress possesses the power to command and direct military operations.
As a final note, it is unfortunate that Professor Balkin declines to allow criticism of his theories at the Balkinization threads like the one I offered above, claiming that such debate will render his thread "unreadable." I will allow others to decide whether my critique makes this thread "unreadable."
"To make rules for the government and regulation of the land and naval forces" is a grant of plenary power. Under it, there is simply nothing Congress cannot do with regard to the military so long as it's expressed as a 'rule'. Before this power, the CinC stands mute.
Bart: "To make rules for the government and regulation of the land and naval forces" is a grant of plenary power. Under it, there is simply nothing Congress cannot do with regard to the military so long as it's expressed as a 'rule'. Before this power, the CinC stands mute.
Words have meanings. Regulate and command are not synonymous.
Regulate means to bring order and discipline to something.
Command means to direct something.
The Founders and the Courts have had no trouble understanding these words. The argument that regulating is synonymous to commanding simply has no textual or precedential basis.
I think the power to "regulate" commerce goes beyond bringing order to commerce.
Bart, you're pretty good at authoritative assertions but I don't think that is the correct definition of regulate. From today's M-W: "to govern or direct according to rule."
The first line of the M-W entry merely offers the synonym "government" to help define the term regulate. However, this line does not state what is being governed. The second line of the M-W entry tells us what is being governed by stating that to regulate is "to bring order, method, or uniformity to" something. This is the source of my offered definition.
Think about this for a moment.
You can properly say: "The President commanded the Army to invade Iraq with five divisions on March 19, 2003." However, it is simply incorrect to say: "Congress regulated the Army to invade Iraq with five divisions on March 19, 2003." Regulate simply does not mean to command.
Of course, the originalist key would be the historic definition. I'm under the impression that it's historic definition was as broad or broader, but I don't have any 18th century dictionaries handy.
The application of the term regulate to troops has come up before in the Second Amendment context. The 1690 Oxford English Dictionary gives this definition of "regulated:" "(b) "Of troops: Properly disciplined."
The 1690 definition is something, though it also appears to be the second definition and is from a secondary source. The Constitution provides for the regulation of commerce. What do you think that means? I would presume it implies authority to govern or command. It has certainly been interpreted that way?
And your interpretation is quite odd -- surely it is the Executive that maintains discipline in the Army, a fairly ministerial task. Do you think the Constitution put Congress in charge of Boot Camp?
It was decided very early on (1807) that the power to regulate commerce includes the power to ban it completely. It also includes pretty much any other control. There may be disputes about what constitutes commerce, but there's very little about what Congress can do once we know that it IS commerce.
And your interpretation is quite odd -- surely it is the Executive that maintains discipline in the Army, a fairly ministerial task. Do you think the Constitution put Congress in charge of Boot Camp?
How is this odd?
Good order and discipline in the military requires a code of conduct to guide the soldiers the same way a criminal code guides civilian behavior. Enacting laws like the Uniform Code of Military Justice is a legislative task.
Enforcing good order and discipline through the UCMJ is indeed a ministerial task belonging to the CiC of the military and his subordinate officers.
I think the power to "regulate" commerce goes beyond bringing order to commerce...The Constitution provides for the regulation of commerce. What do you think that means? I would presume it implies authority to govern or command. It has certainly been interpreted that way?
This is an imperfect, but workable comparison to regulation of the military.
Similar to the military, regulating commerce is simply establishing a code of conduct to enforce order on trade.
And similar to the military, regulating commerce does not involve Congress commanding specific merchants to trade certain goods at a certain price at a certain time and place.
As to the definition of regulate, think "regulations". A commander issues orders to the troops to attack, a commander does not issue regulations to his troops to attack.
Actually, Congress did exactly that, in reverse, to bring our part of the war in Southeast Asia to a close. The regulation in that case was that no further money would be spent for operations there.
Bart: However, it is simply incorrect to say: "Congress regulated the Army to invade Iraq with five divisions on March 19, 2003." Regulate simply does not mean to command.
Actually, Congress did exactly that, in reverse, to bring our part of the war in Southeast Asia to a close. The regulation in that case was that no further money would be spent for operations there.
You have just identified the events which I dare say formed B&L's worldview on these matters.
The period between 1974 and 1980 saw the nadir of 20th Century executive power. Nixon's felonies had destroyed the political power of the Presidency. Concurrently, a radical left Congress was elected in 1974 which had no problem exerting power.
It was during this period when the Congress attempted to unconstitutionally exercise Executive CiC power for the first time in history by enacting legislation ordering the movement of troops, by enacting FISA directing the targets of foreign electronic intelligence gathering and a variety of other restrictions on the prosecution of war and intelligence gathering.
Mr. Bush's efforts over the past few years did not expand executive power to some new historical height. Rather, it has been a battle to reverse Congress' unconstitutional acts during the 70s and restore executive power to where it was prior to 1974.
Likewise, I would suggest that much of the academic backlash against Mr. Bush is by folks whose worldview was formed back in the 60s and 70s and who think that this period was a normal state of affairs, rather than the historical aberration that it was.
I don't really disagree with you about the wisdom of congressional deference to Executive authority (although you left out one of the most egregious examples, the 1993 Somalia resolution, which suggests you are grinding biase ideological axes). But this is an example of the wisdom of the living Constitution, the Founders never anticipated circumstances like the present.
Take away the "regulate" issue, how about the power of the purse? I don't know of any serious constitutional scholar who thinks that the President can override congressional appropriations decisions, and that functionally gives Congress power over military operations. It could just defund them.
But Kazinski, doesn't the commander have to follow the regulations that define what orders, under what conditions, he can give?
Exactly. There's not three coequal branches, there's two coequal branches - Legislature and Judiciary - and a subordinate Executive branch to give effect to their decisions.
Roger Sherman: the Executive is “nothing more than an institution for carrying the will of the Legislature into effect.”
Exactly. There’s not three coequal branches, there’s two coequal branches — Legislature and Judiciary — and a subordinate Executive branch to give effect to their decisions.
So the proponents of an all-powerful legislature would have it, in an attempt, as Tocqueville put it, to “take over the government.” And the aficionados of this view would also have us believe that the result would be ever so much fairer and more “democratic” as well as less likely to result in effective despotism and more likely to continue to allow the country to win its wars and overall keep us safer, right?
Just like the Prime Minister of the U.K. has been oh-so restrained in recent years as he chopped up and reconstituted the centuries-old counties system of Britain (the equivalent of states) without so much as a referendum by-your-leave, much less his basically abolishing (by a mere majority vote of the lower) the nation’s legislative upper house. In actuality the President of the United States — yes, even George W. Bush — wields much less power than the head minister of a parliamentary system of government.
Take away the "regulate" issue, how about the power of the purse? I don't know of any serious constitutional scholar who thinks that the President can override congressional appropriations decisions, and that functionally gives Congress power over military operations. It could just defund them.
You are correct. Congress has the power of the purse. If the Dems were willing to accept the political fallout, they could have defunded the Iraq War.
My point is that, just as Congress has plenary power over the purse which the Executive may not exercise, the President has plenary power over all executive and CiC power which Article I does not expressly grant to Congress.
the Executive is “nothing more than an institution for carrying the will of the Legislature into effect.”
This view of the legislature was abandoned with the Articles of Confederation and the Confederacy.
Governing the military certainly sounds like telling the military what to do and when to do it.
As c-in-c, the President is the officer charged with telling those below him what to do; but as the Porlockian suggested, he may as top dog still be subject to the government of Congress. Think of him as a 6-star general.