I'm the Commander-in-Chief: Whoop-de-doo

You saw it on Scatablog first. Richard Epstein is a well-known University of Chicago Professor of Law who generally associates himself first with the Republican side of things.

First, excerpts from Epstein’s article from Brad DeLong’s Semi-Daily Journal

February 13, 2006
Grownup Republican Watch: Richard Epstein

Richard Epstein appears--on FISA at least--to be a grownup Republican. Welcome:
WSJ.com - Executive Power on Steroids :

I believe our first order of business should be to retool the Foreign
Intelligence Surveillance Act (FISA) to meet the challenges of modern
communications technology. Yet the key legal struggles over domestic spying go
not to its wisdom, but to the thorny issue of whether the president has exceeded
his constitutional powers in disregarding FISA. He has. The Constitution gives
Congress the power to set policy; it gives to the president the right, and the
duty, to execute it. . . .

The administration's more aggressive claim is that an "inherent commander in
chief power" lets the president act on his own. To see why this claim fails, it
is critical to set out -- they're short -- the precise provisions.... Congress
has the explicit power "to make rules for the government and regulation of the
land and naval forces."... Congress's power applies in both peace and wartime,
and is subject to no express limitations on the nature and content of its
general rules. . . .
On the other side of the ledger, "[t]he President shall
be Commander in Chief of the Army and Navy of the United States, and of the
militia when called into actual service of the United States." Note the word
"power" appears no where in this sentence. The operative verb is "shall be."...

The president's defenders insist that any gap in his power is filled because
the Constitution provides that the president "shall take Care that the laws be
faithfully executed." But this clause cuts in exactly the opposite direction.
FISA is one law that the president must "take care" to enforce: He cannot choose
to flout or ignore it....

So who cares about these close textual
and formal arguments? We all do, or should. The major danger with presidential
surveillance does not lie in this particular overreaching of executive power.
It's what comes next.... Over the long haul, we'll do best by sticking to the
original game plan on military matters rather than rewriting the Constitution to
let the president alter the rules of the game. Under our Constitution, that
power belongs to Congress. May it use the power wisely.

And now, what you could find on Scatablog:

The Omnipotent Commander-in-Chief: Material for Your Tool Chest

When you hear these theories about the President’s authority as the “Commander-in-Chief,” it’s good to do a refresher on what the Founding Fathers actually said. The theories are absurd and self-serving. While the power lodged in Congress to declare war is well-known, certain other provisions may be more to the point.

It was established as the job of Congress “[t]o raise and support Armies” (and “provide and maintain a Navy”) – but out of fear of manipulation by the Executive Branch, even Congress was not allowed to fund the army for more than two years.

It is the job of Congress, not the President, “[t]o make Rules for the Government and Regulation of the land and naval Forces”

The President shall be “Commander in Chief of the Army and Navy”

The President “shall take Care that the Laws be faithfully executed”

What did Hamilton have to say in The Federalist Papers? In No. 24: “A stranger to our politics, who was to read our newspapers at the present juncture, …[would not understand]… that the whole power of raising armies was lodged in the legislature, not in the executive.”

What did Hamilton think about the title of Commander-in-Chief? Not much, or at least not as much as Cheney, Alito, Gonzales et al have claimed. The Founding Fathers were extremely suspicious of too much military power being lodged in the President. In No. 69, Hamilton said: “The President is to be commander-in-chief of the army and navy . . . . In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It 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.”

In other words, consistent with what you learned in civics class in the 6th grade, Congress has the sole authority to make the rules and regulations that govern the defense forces, and the President’s responsibility is to enforce those rules. The rules the President can make are only the ones necessary to enforce the rules made by Congress, not new rules that the President would prefer to have in place over those created by Congress.

The President’s authority as Commander in Chief is not an independent source of power, unchecked by any institutional control, that would allow the President to override an Act of Congress. Indeed, to say so is not merely wrong or misguided, but so far off-base within the scheme of separated powers and checks-and-balances as to constitute legal incompetence. But what else is new with this crowd?

posted by KISSWeb, Tuesday February 7, 2006