Commander in Chief
SECTION 2. Clause 1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Office, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
Development of the Concept
Surprisingly little discussion of the Commander-in-Chief Clause is found in the Convention or in the ratifying debates. From the evidence available, it appears that the Framers vested the duty in the President because experience in the Continental Congress had disclosed the inexpediency of vesting command in a group and because the lesson of English history was that danger lurked in vesting command in a person separate from the responsible political leaders.132 But the principal concern here is the nature of the power granted by the clause.
The Limited View.—The purely military aspects of the Commander-in-Chiefship were those that were originally stressed. Hamilton said the office “would amount to nothing more than the supreme command and direction of the Military and naval forces, as first general and admiral of the confederacy.”133 Story wrote in his Commentaries: “The propriety of admitting the president to be commander in chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it. 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, there was no necessity that he should, take the command in person; and there was no probability that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents.”134 In 1850, Chief Justice Taney, for the Court, 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 forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. . . .”
“But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question.”135 Even after the Civil War, a powerful minority of the Court described the role of President as Commander-in-Chief simply as “the command of the forces and the conduct of campaigns.”136
The Prize Cases.—The basis for a broader conception was laid in certain early acts of Congress authorizing the President to employ military force in the execution of the laws.137 In his famous message to Congress of July 4, 1861,138 Lincoln advanced the claim that the “war power” was his for the purpose of suppressing rebellion, and in the Prize Cases139 of 1863 a divided Court sustained this theory. The immediate issue was the validity of the blockade that the President, following the attack on Fort Sumter, had proclaimed of the Southern ports.140 The argument was advanced that a blockade to be valid must be an incident of a “public war” validly declared, and that only Congress could, by virtue of its power “to declare war,” constitutionally impart to a military situation this character and scope. Speaking for the majority of the Court, Justice Grier answered: “If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be ‘unilateral.’ Lord Stowell (1 Dodson, 247) observes, ‘It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers of the law of nations. A declaration of war by one country only, is not a mere challenge to be accepted or refused at pleasure by the other.’”
“The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the act of Congress of May 13, 1846, which recognized ‘a state of war as existing by the act of the Republic of Mexico.’ This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act 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 popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet 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 change the fact. . . .”
“Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by 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 evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.”141
Impact of the Prize Cases on World Wars I and II.—In brief, the powers that may be claimed for the President under the Commander-in-Chief Clause at a time of widespread insurrection were equated with his powers under the clause at a time when the United States is engaged in a formally declared foreign war.142 And, because, especially in the early months of the Civil War, Lincoln performed various acts, such as increasing the Army and Navy, that admittedly fell within Congress’s constitutional province, it seems to have been assumed during World Wars I and II that the position of Commander-in-Chief carried with it the power to exercise like powers practically at discretion, not merely in wartime but even at a time when war became a strong possibility. No attention was given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly had,143 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 take care that the laws be faithfully executed.144 Nor was this the only respect in which war or the approach of war was deemed to operate to enlarge the scope of power claimable by the President as Commander-in-Chief in wartime.145
132 May, The President Shall Be Commander in Chief, in The Ultimate Decision: The President As Commander In Chief (E. May ed., 1960), 1. In the Virginia ratifying convention, Madison, replying to Patrick Henry’s objection that danger lurked in giving the President control of the military, said: “Would the honorable member say that the sword ought to be put in the hands of the representatives of the people, or in other hands independent of the government altogether?” 3 J. Elliot, The Debates In The Several State Conventions On The Adoption Of The Federal Constitution 393 (1836). In the North Carolina convention, Iredell said: “From the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, dispatch, and decision, which are necessary in military operations can only be expected from one person.” 4 id. at 107.
133 The Federalist, No. 69 (J. Cooke ed. 1961), 465.
134 3 J. Story, Commentaries On The Constitution Of The United States 1486 (1833).
135 Fleming v. Page, 50 U.S. (9 How.) 603, 615, 618 (1850).
136 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866).
137 1 Stat. 424 (1795): 2 Stat. 443 (1807), now 10 U.S.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 act of 1795.
138 7 J. Richardson, supra, at 3221, 3232.
139 67 U.S. (2 Bl.) 635 (1863).
140 7 J. Richardson, supra, at 3215, 3216, 3481.
141 67 U.S. (2 Bl.) at 668–70.
142 See generally, E. Corwin, Total War And The Constitution (1946).
143 12 Stat. 326 (1861).
144 J. Randall, Constitutional Problems Under Lincoln 118–139 (rev. ed. 1951).
145 E.g., Attorney General Biddle’s justification of seizure of a plant during World War II: “As Chief 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 various statutes enacted by the Congress for the purpose of carrying on the war. . . . In time of war when the existence of the nation is at stake, this aggregate of powers includes authority 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 Chief Executive and the Commander-in-Chief of the Army and Navy the power to take steps to protect the nation’s war effort.” 40 Ops. Atty. Gen. 312, 319–320 (1944). Prior to the actual beginning of hostilities, Attorney General Jackson asserted the same justification upon seizure of an aviation plant. E. Corwin, Total War And The Constitution 47–48 (1946).