Interactive Constitution Essay: Commander in Chief Clause

The Commander in Chief Clause of Article II, Section 2 provides that “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.” As Justice Jackson put it in the Steel Seizure case (Youngstown Sheet & Tube Co. v. Sawyer (1952)), “These cryptic words have given rise to some of the most persistent controversies in our constitutional history,” with Presidents at various points claiming that it “vests power to do anything, anywhere, that can be done with an army or navy.”

At a minimum, all agree that the Clause has two separate but related purposes: First, in response to the charge in the Declaration of Independence that the King had “affected to render the Military independent of and superior to the Civil Power,” it ensures civilian superintendence over the military—and, as such, the subordination of the military to civilian (and democratically accountable) control. Second, and in contrast to the experience under the Articles of Confederation, it places such civilian superintendence in the hands of a single person. As David Barron and Martin Lederman’s definitive academic study of the Clause explains, “the textual designation of the President as the Commander in Chief was intended to ensure that that officer, and no other, would be ultimately responsible for performing that role, whatever it was to entail.” To that end, they continue, the Clause “suggests that, at least with respect to certain functions, Congress may not (by statute or otherwise) delegate the ultimate command of the army and navy . . . to anyone other than the President.”

Although that principle, read narrowly, would only prohibit Congress from literally placing someone other than the President atop the U.S. military hierarchy, it presumably also means that Congress cannot insulate parts of the military from the President’s superintendence or interfere with the President’s supervisory role, lest Congress have the power to effectively undermine the President’s command authority—and, in Justice Jackson’s words, convert the Clause into an “empty title.”

Thus, as a case in point, Congress likely violated the Clause in an 1867 appropriations rider that sought to insulate Ulysses S. Grant—then the commanding general of the U.S. Army—from President Andrew Johnson by, among other things, requiring all orders to go through Grant (and voiding all orders that didn’t); precluding Grant’s removal by Johnson without Senate approval; and fixing Grant’s headquarters in Washington (where, presumably, he would be closer to Congress).

As a result of this superintendence principle, when Congress authorizes military operations (such as through a declaration of war), it necessarily puts the President in charge of them. Thus, as Chief Justice Chase explained in his concurring opinion in Ex parte Milligan (1866), the Commander in Chief Clause enshrines the President’s authority not just over “the command of the forces,” but also over “the conduct of campaigns.” And as Barron and Lederman explain, “more than 200 years of usage and court precedents reflect the view that the Commander in Chief Clause does confer broad substantive war powers on the President.”

A more difficult question is how much authority the Clause gives the President beyond operations approved by Congress. In the debates at Philadelphia, James Madison said that giving Congress the power to declare war would leave the President with power to repel sudden attacks. Presumably this power arises from the Commander in Chief Clause, read to convey independent substantive power to the President to direct the military on matters not related to war initiation. On this basis, Presidents have claimed authority over a range of military actions, including attacking pirates, rescuing U.S. citizens abroad, and making military deployments, although this authority is presumably circumscribed by other provisions of the Constitution and perhaps, some have argued, by international law.

In the Steel Seizure case, the Court rejected the President’s argument that the Clause empowered the President to seize steel mills in the United States to support the Korean War, and in Milligan, the Court rejected the argument that the Clause allowed the President to use military commissions to try civilians in areas where civilian courts were still operating. These cases indicate that the independent authority conveyed to the President by the Clause generally does not extend to interference with the rights and duties of U.S. civilians, at least outside the battlefield.

The most controversial aspect of the Clause is whether it limits Congress’s ability to enact statutes directing how military operations are conducted. For example, multiple Presidents have claimed that the War Powers Resolution, which limits the President’s ability to deploy troops into hostilities without Congress’s approval, is unconstitutional on this ground. After the terrorist attacks of September 11, 2001, the Executive Branch argued that, because of the Commander in Chief Clause, various statutory limits on the President’s authority were unconstitutional insofar as they, among other things, forbade the torture of detainees, warrantless surveillance, or the detention of U.S. citizens as enemy combatants. As a controversial 2002 government memorandum argued,

In Hamdan v. Rumsfeld (2006), the Supreme Court appeared to reject this argument in invalidating military tribunals created by President Bush to try non-citizen terrorism suspects. As Justice Stevens wrote for the majority, “[w]hether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” However, the scope of Hamdan remains unclear, and in 2015 President Obama suggested that a statute completely limiting his ability to transfer detainees from the military prison at Guantánamo might unconstitutionally infringe his Commander in Chief powers.

In sum, the Commander in Chief Clause gives the President the exclusive power to command the military in operations approved by Congress; it probably gives the President substantial independent power to direct military operations so long has the President does not infringe exclusive powers of Congress or other provisions of the Constitution; and it may (but may not) limit Congress’ power to pass statutes directing or prohibiting particular military activities.