The president as commander in chief.

• Author: Terry, James P.
• Position: P. 391-423

INTRODUCTION: PRESIDENTIAL AUTHORITY AND THE USE OF FORCE I. CONSTITUTIONAL UNDERPINNINGS: PRESIDENTIAL POWER VERSUS CONGRESSIONAL PREROGATIVE II. THE PRESIDENT'S LEGAL AUTHORITY AS COMMANDER IN CHIEF III. THE ROLE OF CONGRESS IN POLITICAL-MILITARY CRISES A. Withholding or Withdrawing Legislative Authority B. The Use of the Power of the Purse to Restrict Presidential Prerogatives IV. THE DEVELOPMENT OF THE PRESIDENT'S OPERATIONAL AUTHORITY IN WARTIME A. The Early Wartime Presidents 1. James Madison 2. James Polk 3. Abraham Lincoln 4. William McKinley B. The Modern Wartime Presidents 1. Woodrow Wilson 2. Franklin D. Roosevelt 3. Harry S. Truman 4. Lyndon Baines Johnson C. The Gulf War Presidents--The 1990-1991 and 2003-2009 Middle East Crises 1. George Herbert Walker Bush 2. George Walker Bush V. THE THREAT OF TERRORISM AS COMPLICATING THE PRESIDENT'S COMMANDER IN CHIEF AUTHORITY A. President Carter and the Iranian Hostage Crisis B. President Reagan's Response to International Terrorism: The Case of Libya C. President Clinton's Response to Terror-Violence D. President George W. Bush's Response to the al Qaeda Attacks in New York and Washington VI. HUMANITARIAN CRISES ADDRESSED BY PRESIDENTS JOHNSON AND CLINTON A. President Johnson's Intervention in the Congo B. President Clinton's Successful Resolution of the Kosovo Crisis OBSERVATIONS AND CONCLUSIONS: REFLECTIONS ON THE PRESIDENT'S COMMANDER IN CHIEF AUTHORITY INTRODUCTION: PRESIDENTIAL AUTHORITY AND THE USE OF FORCE

The severe economic concerns facing the Obama Administration have not relieved the new President of daunting national security challenges. The ongoing crises in the Middle East and Southwest Asia will continue to challenge the parameters of the President's authority as Commander in Chief in light of differing congressional interests. (1)

Despite the repeated and forceful concerns directed at former President George W. Bush over Iraq, the authority enjoyed by Presidents writ large can actually be said to be on the ascendancy. In the areas of foreign affairs and national defense, all Presidents since James Madison have enjoyed the aggregation of national power at the expense of Congress. This expansion became most pronounced during the Jacksonian period. Only during Vietnam in the case of Lyndon Johnson and following the Watergate affair with Richard Nixon did Congress attempt to regain some form of partnership with the President, most notably in the areas of war powers and declarations of national emergencies. (2)

Despite this occasional assertion of congressional authority over foreign affairs, political necessity (real or perceived) and the status of the United States as a world power and guarantor of the peace have operated to expand the power of the President and to diminish that of Congress. This Article makes three arguments that support a broad constitutional interpretation of the President's powers as Commander in Chief. First, a study of the historical origin of Article II of the Constitution--and of subsequent presidential practice that defined more precisely the scope and meaning of Article II--reveals that the President has sufficient legal authority under the Constitution to take unilateral action as Commander in Chief, even in many cases when his actions defy congressional will. Second, broad presidential authority as Commander in Chief (in conjunction with a correct understanding of the doctrine of preemption) is essential to waging the modern war on terror effectively. Third, because the U.N. Security Council has proven itself powerless to achieve the unanimity among its permanent members necessary for that body to authorize the use of force, the Commander in Chief must be recognized as wielding broad powers under Article II--not only vis-a-vis Congress, but also in relation to the United Nations--to preserve the United States' ability to address egregious international violations of human rights as well as serious and imminent threats to our national security.

Part I of this Article explores the Framers' understanding of presidential war powers vis-a-vis Congress and how that understanding played out in practice, with particular reference to President Jackson's handling of the Nullification Crisis of 1832. Part Il examines the President's constitutional authority as Commander in Chief and reveals that in practice there has been little historical opposition to unilateral executive decision-making in addressing direct threats to the nation. Part III examines Congress's historical role in political-military crises, first, in its power to withhold or withdraw legislative authority, and second, in its ability to restrict presidential action by resort to its power over the purse.

Part IV depicts the development of the Commander in Chief's wartime powers by examining the actions of wartime Presidents. The analysis is divided into early wartime Presidents (Madison, Polk, Lincoln, McKinley) and their modern counterparts (Wilson, Franklin D. Roosevelt, Truman, Johnson, George Herbert Walker Bush, George W. Bush). Part V examines the modern terrorist threat in light of the President's traditional constitutional wartime powers. It examines presidential responses to terrorism by four of our modern Presidents (Carter, Reagan, Clinton, George W. Bush) and concludes that to combat terrorism effectively, the President must be able to exercise broad powers as Commander in Chief, including the power to take preemptive measures to protect national interests. Part V further argues that, as demonstrated by the historical practice of traditional wartime Presidents, the exercise of broad Commander in Chief powers in combating terrorism is constitutional.

Finally, Part VI examines presidential responses to two humanitarian crises under Presidents Johnson and Clinton, and concludes that, where diplomacy has failed, presidential action to prevent the continuation of substantial and fundamental human rights abuses is a legitimate exercise of power, despite the unwillingness of the United Nations Security Council to authorize the use of force.

1. CONSTITUTIONAL UNDERPINNINGS: PRESIDENTIAL POWER VERSUS CONGRESSIONAL PREROGATIVES

   ARTICLE. II. SECTION. 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows ....(3)

   The belief on the part of certain founders that the executive should have broad authority with respect to war powers was not shared by all. Both the broad view espoused by Alexander Hamilton and the narrower view urged by Thomas Jefferson and James Madison were the subject of serious debate. In the end, Hamilton's conception of broad executive war powers prevailed over Madison's. This Part of the Article explores the source of the concepts underlying the language adopted in the final version of the Constitution as well as the arguments presented by those representing an expansive versus a more limited view of the Presidency.

   Articles XVII through XIX of the New York Constitution of 1777 formed the immediate source of Article II of the United States Constitution. (4) Under the New York Constitution, the Governor was elected by the people for a term of three years, he was in charge of the militia, he had pardoning authority, and he was charged with ensuring the laws were faithfully executed. (5) The New York Constitution, coupled with the Virginia Plan, formed the basis of discussion at the 1787 Constitutional Convention in Philadelphia. (6)

   The Virginia Plan called for selection of the executive by the legislature. (7) The executive's salary was to be fixed under this plan and not subject to congressional fiat. Under the Virginia Plan, the executive was precluded from standing for reelection in order that he would not be pressured into deferring to the legislature. (8) During debate on this plan, James Wilson moved that the executive consist of a single person, and further that the executive be elected by the people, rather than the legislature, as the plan originally provided. (9) Consideration of Wilson's former motion was deferred until related questions of powers, term, salary, method of selection, and conditions of removal had been resolved. (10) When Wilson's motion was finally considered, it passed, thus assuring a strong Presidency. (11)

   Equally significant in the Philadelphia debate was consideration of a proposal that would have provided an "Executive Council" to advise the executive in all his executive duties. The Convention ultimately voted down this proposal and vested in the Senate the right to "[a]dvi[s]e and [c]onsent" with regard to several of these matters. (12) A final element related to the designation of the executive as "The President," which resulted from the draft report of the Committee on Detail and was accepted by the Convention without debate. (13)

   The nature of the Presidency would prove to be far more important than its structural contours. From the earliest debate the expansionist views of Alexander Hamilton must be contrasted with the restrictive views of James Madison. Madison's view relied principally on the authority vested in Congress to declare war, thus removing it, in his view, from the executive branch. He likewise argued, on the same grounds, that the President had not the right to determine the nation's neutrality with respect to allies at war. (14) Significant in Madison's argument is the implicit repudiation of the view that Article II, Section 1, bestows powers on the President not specifically vested in subsequent sections. (15)

   Hamilton, in expounding the more expansive position and arguing for a more powerful Presidency, urged that Article II, Section 1, vests true executive power in the President; makes him Commander in Chief of the Army and the Navy; gives him power to make treaties and to receive ambassadors and...