The President and Congres-Operational Control of the Armed Farces

• Author: Lieuteiiant Colonel Beniret S Hollander
• Pages: 02

I INTRODCCTIOK

h EARLY HISTORICAL DEVELOPME.VT Historically, ~n England, for many years subsequent to the Norman conquest, the authority of the king with reaped to the uze of the armed forces was almost unlimited. Gradually, homier, Imitations on this authority developed Nevertheless, prior to 1688 Jnmer I1 had estab-lished 8 standing army ai close to 30.M men. despite constant die-agreement between the crown and parliament regarding the strength of the army As a result. ~n 1688 the "King's Prerogative" which, with respect to this poiver. \\-a8 cansldered so dangerous was limlted in the newly developed Bill of Rights by incorporating therein B clause declaring it illegal to mise or keep B standing army ~n time ai peace without the eonaent of parlmment.' In fact, the very existence of the British Army has actually. thereafter, depended on the passage each year of the "Army rlnnuall Act'' which must be passed each year to authorize the maintenance of troops for mother twelve

Thrs historical background mounts for the dexlopment amonget the oolanisti of a deep founded fear of rcsnding armies in t m e of pesee. Thic ingrained fear wss reinforced by the eircumetanees leading up to the American Reiolutm a The feelinge of the colonlets were reflected in the Declaration 9f Independence aherein protesting that George Ill

COLOXEL

'See Rroars Corrrnrurro~ii LA- 246247 (8th ed 19So1. uhleh also cantalns B dmuaaion of the hiitoriesl derelapment of control mer the armed forces m Great Britain

'TEE F~orm~rir S o 26, at 166 (Coake ad 19611 (Hamilton)

TAOO ,0888

had atreinpted to iendei the milmi'. independent oi and iuipeiioi to the CIWIpower. it was charged ~n nddirion thnr

B COTTROL OF THE .ARMED FORCES [..\-DER THE ARTICLES OF CO.\~FEDERATIOS

The oieia!l muctue of ri.e existing s:stein for national detenre Iml been formulated by the Conmental Congeis and pramulaared ~n rhe ich !laa rarified by the Conrrez. on Sovem. ber 15, 1777, and finall! npp:med by rhe thirteenth state m Jmuary 1781. It i a i Eollmed throughout the Revolutionary T a r cervmg as rhe basis for central government

CONTROL OF ARMED FORCES

rnder the Artielea of Conjederatton. the principal, uncontromrted, war power poaseised by Congrees vas that af declaring Responsibility iar command admmiaration. and supply was confused and divided betireen Congress and the states "All charges of war and d l other expensed that shall be incurred ior the mrnmon defense or general welfare, and allowed by the united states in oangreis aiieinbled ' were defrayed aut of a common treasury, supplied by the several states in proparaon TO the m1ue of all land ii-ithm eaeh itate.: Vhen land forces sere raised by a state for the common defense. &ii officers through the rank of colonel were appointed by the legislature of that state 6 The Cangresa appointed 811 officers of the land forces, in the service of the V'nited States, except regimental officers, appointed all the officers oi the naval forcer. and issued commissions for d l officers ineludmg those appointed by the ststejg The Congress had the "sole and exelui~ve right and power" IO make rules ior the governmnt and regulation of the land snd naval forces. and to direct then operations.1o I! ii-as further provided that:

The united rtaiei m mngrera assembled ehall hare autharlr) to appoint committee to sit m the rems a1 congm3, to be denommared ''A Commlrtee of the Stater. and ta eonaat 01 one delegate from eaeh state; and to &PPOlnt officers BP may be nacesisrr lor managm~ the

the regnmentnl affieers, ralre the men and rloath. arm and equip them ~n B

soldier like manner at the expence of the umted states, and the officers and men so elaathed. armed and equipped ahsll march to the place appointed and uithin the time agreed OD b) the unned m t e b ID congrerr assembled

' A ~ r r c m

OF Ca,r~oirurlo\. mt IS (17811 uhlch pmime8 that' 'The unmd >tatel m congress aicembled. shall haze the sole and exclu~iie right and paver 01 determining on peace and x u " There was however, RD exceptLon to this contained m art VI nhluh praxlded that "So m t e shall engage m anywsi airhout the consent of the umted states ~n mngresa assembled. unless rueh state be actually miaded by enemies or shall hare leeelred cerfaln adrace of a resolution bring farmed by some nation of Indiana to iniade zuch rtate and the danger 18 80 imminent a( not to adm>t 01 a delar till the united .rates m mnmesi

T A W l0dlB 51

Once the Continental Army was m the held. ~rine~pal responsibility

for administering and supplying it rested with Congre~e.'~ The A7ttcles of Confederation granted Congress no specific control 0x1 the militia. ahioh had TO be EO irequently called out to supplement the ending armed forces Xevertheless. Congress had to often mange for the sup-ply and edministratian oi rhore militia farces operating with the army.13

While a great deal of legialatmn WBS required, and ID fact was enacted. this legislation often \\as enacted by the respective state legislatures, frequently on recommendation of the Continental Congress. Ai an illustration. on hovember 22, li77. Congress recarnmendeo to spm-fied state legialaturee that they appoint commimonere "to regulate and iiecer~ain the price of labour. manufacturers. internal produce . and that, on the report of the commissioners. each of the respective legislatures enact auirable lass as to authorize the purchasing commm-saries iar the army to take . . . [from persons poaseesing exeese sup-plies or provieiani] who shall refuse to sell the surplus at the prices to be ascertained 83 aforesaid. paying only such price iar the same "'*

December 20, 1777 the Conunental Congress requested "the reapeetlre legieiaturee of the rnited States. iarthn-ah to enact laws, appointing suitable person8 to seize and take. for the USE ai the continental army of the said states. &I1 noalen clothe, blankets. linens, shoes, stookmgs, hats and other necessary articles of cloathing, suitable for the army , . . "

In some Instances, recommendations were made directly to the colonie~ as on June 10, 1776 when the Continental Congress "earnestly recommended to the several caloniea . that they immediately furnish the Americhn army before Boston nith a6 much powder out of their town and other publie stocks BE they can poeaibly spare , ,

Hamilton summarlied the mtuation BE follows:

Deieeriw a8 +he preeent Confederation has proved to be. rhrs pma~ple appears to hale been iullg reeagnmed by the framers of I[. thoueh they have not made proper or adequate piorision far Its exeieiae Congress hare 80 un-limited dlscrermn io make requmtmnz of men and money-to govern the naib-to direct their weiatmns l e their re~uiiitmns were made oslly binding upon the Stater, rho m e m iaef under the mort mlemn obliestion. 10 furniah the ~uppliei required oi them the mtentmn erldenilv wae, that the United States ahauld command ahstever remur~es *ere by them

CONTROL OF ARMED FORCES

ludged requiiife to "the common defence and eened welfare It aas me- rumed that a iense of their true mierest8 and a regard to the dntatel of good falth. would be found ruffieient pledge? for the punctual performance of the duty of the members to the Federal Head'.

U'hatever executive and legislative power over the armed forces existed was vested in the Continental Congrees. This body had direct charge of the war effort and, !n the early stages of the conflict follaning the asambling of the Second Continental Congress at Phiiadelphia onYay 10, 1776, managed or attempted to manage most military mattere. including mobilization, tactics. and strategy hy ineans of eubcommitteea.'8

Laeking a eeniral executive, the Congress relied on various boards md committees to perform its executive functions.'g Congress set up the Board oi IYar and Ordnance composed of selected members of Can-greea in June of 1776 Later, in 1777 s board composed of selected individuals other than membera of Cangreer was eitabliahed. Neither of these arrangements was effective, and Congress eventuitlly regulated purely administrative mattere by action of the entire membership or by appointing special committees to go to campz0 There developed a proliieratian of subcommittees, each concerned aith some small aspeot of the war ritui*tion, elearly more related to operation8 than policy. and none having authority to do more than investigate. suggest methods and courbe8 of action, and report to "the united states in oongrers msem bled", ahich a d d then take final

The battles oi the Revolution aere fought under the direction of BContinental Congress lacking actual power to control. "Inspired by fear of seizure of political mntrol by mhtary leaders, Cangreee kept a suspiciously s-atehiul eye on the military force and it3 oommanders."12 However, despite this desire of the Continental Congress to retain m&ximum contrd the necessities of the situation often required the grant of considerable ponera to George Kashington. Of particular mteieet in this regard is the resolution beatmn-mg dictatorial powers

" I d at 7 Among. others there *as R dtpetre cemm~tree, a committee on 'pies. 8 hospital committee. L medical committee. B eommitteo on the health and discipline ai the arm?. B clothing eammiftee. a beef committee. and a cam-

CONTROL OF ARMED FORCES

The United States Supreme Court has on many O C C ~ E ~ O ~ described

the broad scope of the war powers In Hone Buddtng 6. Loan A r m ciation L. Blomdell,ZB It stated. xith respect to the war power. that it ' i s not created by the emergency of war, bur is a pairer given to meet that emergency. It is B power to wage ir-ar iueeesaiuliy. and thus I t permits the hainercinp of the entire energies of the people in B supreme cooperative effort to preserve the nation." 27

Again, m Hmbayoshi c. Cnated States,2i the aide scope of the ~ a r power, where Congress and the Executive BCT together, UBE again described:

..material8 and the members oi the armed force% irom ~nlun. and from the dangers...