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?
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 | 12:01 AM
1 Comments:
Great post. That should put the Article II argument to rest.
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