Associate Professor, University of Iowa College of Law. J.D., 1995, University of California, Berkeley (Boalt Hall). Thanks to Eric Andersen, Randy Bezanson, Jon Carlson, Bobby Chesney, Judge John Ferren, Mark Osiel, Mark Schantz, Alexander Somek, John Yoo, and attendees of the panel on "The Changing Paradigm of Article II" at the 2006 Annual Meeting of the Southeastern Association of Law Schools, where I presented some of the ideas contained in this Article, and to Amy McHugh (2007), Steven Stickle (2007), Christine Eichinger (2008), and Stephen Thompson (2008) for research assistance.
Under Article II of the Constitution, the President is the Commander-in-Chief of the United States military. Recently, under what this Article shall call the "inherent Commander-in-Chief powers thesis," the Bush Administration has asserted that this constitutional provision grants the President inherent authority (that is, authority independent of any statutory authorization by Congress) to take such controversial actions as detaining American citizens indefinitely without criminal charges, and spying on communications of American citizens inside the country without warrants.1 This thesis presumes that Congress's check on the inherent presidential power is largely limited to its power to control the funding of presidential actions.
Although the nature of the actions justified under the inherent powers thesis may be unprecedented, the underlying theory is consistent with broad claims of executive power throughout history. At least as far back as Harry Truman, presidents have claimed inherent power under the Commander-in-Chief clause to use the military without congressional authorization, including the seizing of steel mills to maintain production of steel that was needed for the Korean War.2 However, despite some impressive recent academic work supporting it,3 the inherentPage 967 Commander-in-Chief powers thesis has yet to gain mainstream acceptance.4
The bulk of criticism of the inherent Commander-in-Chief powers thesis attacks the historical and textual bases of the theory. On the other hand, this Article assumes, for the purposes of argument, the validity of the historical and textual arguments in favor of the theory. Instead the Article raises two structural objections to the present-day operation of the theory to suggest that it does not function neatly to allow Congress and the President to resolve all war powers struggles on a purely political level.
Part I of this Article summarizes the debate over the Constitution's allocation of war powers between Congress and the President, starting with the conventional view that Congress must authorize the President to use military force. This Article next presents the inherent Commander-in-Chief powers thesis along with its historical and textual justifications.
In Part II, this Article discusses two structural objections to the thesis-namely, that (1) quick strike military operations, such as the ill-fated 1980 Iran hostage rescue mission, do not present Congress with an adequate opportunity to exercise its funding control, but still impose on the country the risks associated with aggressive warfare; and (2) secret Executive Branch actions undertaken pursuant to the Commander in Chief Clause (as opposed to a different Article II power) do not provide Congress with adequate notice of the potential need to exercise its funding control.
Article II of the Constitution, which vests the President with executive power, states that "[t]he 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 services of the United States[,]"5 and calls on the President to "take care that the laws be faithfully executed . . . ."6
However, the Constitution also allocates substantial powers to Congress that would be classified as "war powers." Congress isPage 968 empowered to declare war,7 "to make rules concerning captures on land and water,"8 to raise an army and navy,9 to establish a code of military conduct,10 to "provide for calling forth the militia" and to "provide for organizing, arming, and disciplining" the militia.11
Scholars on both sides of the debate over the scope of presidential war powers agree that the Constitution calls for some degree of sharing of war powers by the President and Congress. The dispute is over the relationship between the two branches, particularly with regard to the power to initiate military action against another nation (or non-state entity).
The conventional view, advanced by scholars such as John Hart Ely,12 Harold Koh,13 and Louis Fisher,14 is that the placement of the Declare War Clause15 among Congress's enumerated powers demonstrates the intent of the Framers to give the legislative branch the initial say in whether to commit the nation to war. The President's Commander-in-Chief power, therefore, operates subsequent and subordinate to Congress's decision to unleash military force. The only exception is that the President has the authority to repel imminent attacks, which, though not stated in the Constitution, has been confirmed by the Supreme Court.16
Supporters of this view also point to the historical records of the Constitutional Convention, which they argue are clear.17 As is commonly noted, the original draft of the Constitution allocated to Congress the power to "make war;" however, a motion by James Madison and Elbridge Gerry to change "make war" to "declare war" passed, ostensibly resolving a dispute between those who feared lodging too much power in the President and those who feared binding the President's hands.18 To "make" war, one Framer argued, was to "conduct" war and was therefore a duty appropriately left to the Executive.19
In terms of judicial precedent, these scholars rely heavily on The Steel Seizure Case,20 particularly Justice Jackson's celebrated concurrence.21 The Steel Seizure Case arose during the height of the Korean War. Relying on a United Nations Security Council Resolution, President Truman had committed U.S. armed forces to a "police action" against a North Korean invasion of South Korea.22 On April 4, 1952, after efforts to settle a labor dispute failed, a steelworkers' union called for a strike to begin on April 9.23 In response, President Truman issued Executive Order 10340, which, in effect, directed the Secretary of Commerce to nationalize the steel mills.24 The district court enjoined the Commerce Secretary from continuing to carry out the order, but the court of appeals lifted the stay.25 The Supreme Court granted certiorari and reversed the court of appeals.26
Writing for the Court, Justice Black laid out a formalistic syllogism: (1) the President can act only pursuant to congressional authorization or constitutional authority; (2) Congress did not authorize the President, by statute, to seize the steel mills; (3) no provision of the Constitution explicitly authorized the President to seize the steel mills; and (4) the seizure could not be justified under an implied power because the President had engaged in making law, not executing law created by Congress.27 In short, under Justice Black's approach, the President could only act pursuant to express constitutional provisions, express statutory authority, or an implied power deriving from express statutory authority.
Not all members of the majority agreed with Justice Black's formalistic approach. Justices Frankfurter and Jackson recognized ambiguity in the Constitution's allocation of war powers between the President and Congress that could not be resolved through explicitly formalistic analysis. In Justice Frankfurter's view, the separation of powers between Congress and the President had to be sensitive to real-life practices, such that "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'Executive Power' vested in the President."28
The most significant opinion in The Steel Seizure Case was, of course, Justice Jackson's concurrence. It envisioned three scenarios of presidential and congressional war powers interaction: those in which the President acted (1) pursuant to express congressional authorization; (2) in the face of congressional silence; and (3) contrary to express congressional prohibition.29 Categories (1) and (3) corresponded roughly to Justice Black's view, but category (2) permitted a degree of flexibility in evaluating separation of powers challenges that was absent from the majority opinion. Though only a concurrence, Justice Jackson's three-category analysis has become accepted as the appropriate framework for resolving conflicts between Congress and the President.30
Presidential practice has followed the conventional view inconsistently. In the past half-century, the United States' involvement inPage 971 the Vietnam War (1964),31 the first Gulf War (1991),32 the attack against the Taliban and Al Qaeda in response to the 9/11 terrorist attacks (2001),33 and the second Gulf War (2003),34 were all pursuant to congressional...