Presidential Power

Commander in Chief

Commander in Chief

“The 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 Service of the United States”

---Article I Section 2

Hamilton, Federalist 69

• “The President is to be commander-in-chief of the army and navy of the United States. 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; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, gall which, by the Constitution under consideration, would appertain to the legislature.”

The Congress shall have Power:

“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia…”—Article I Section 8

Why put the war power in Congress’ hands?

Why?

“The power of declaring war…is in its nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all of the councils of the nations. War, in its best estate, never fails to impose upon the people the most burthensome taxes and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself…”

--Supreme Court Justice Joseph Story (Fisher p. 4)

Why put the power in the president’s hands?

Hamilton, Federalist 70

• “Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.”

How do we think of the president’s war powers today?

• President George H. W. Bush:• “I don’t have to get permission from some old

goat in the United States Congress to kick Saddam Hussein out of Kuwait.”

• President Bill Clinton:• “I think I have a big responsibility to

appropriately consult with Members of Congress in both parties—whenever we are in the process of making a decision which might lead to the use of force. But I think that, clearly, the Constitution leaves the president, for good and sufficient reasons, the ultimate decision making authority.”

What changed?

• General growth of Presidential prominence• Precedents• Military technology and the Cold War• Secret agencies• Alternative sources of legitimacy (UN, NATO)• Congressional abdication of responsibility

In what ways can Congress fight back?

Why is it difficult for Congress to do so?

War Powers Resolution

Consulting requirement:– “The President in every possible instance

shall consult with Congress before introducing US Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress…”

War Powers Resolution

Reporting requirement– In the absence of a declaration of war, when

troops are introduced• 1) into hostilities or imminent hostilities• 2) into the territory of a foreign nation armed for

combat• 3) In numbers which substantially enlarge the

forces in a nation or region…

War Powers Resolution

• Reporting– The President shall submit within 48 hours to

the Speaker of the House and President of the Senate a report, in writing including

• The circumstances requiring forces• The constitutional and legislative authority under

which troops were introduced• The estimated duration of the hostilities

War Powers Resolution

• Automatic removal– Within 60 days after the report is submitted or

required to be submitted, the President shall terminate any use of United States armed forces unless the Congress

• Declares war• Has extended by law the 60 day period• Is physically unable to meet

In what ways can Congress fight back?

Why is it difficult for Congress to do so?

Can the courts affect this balance of power?

Jackson on Presidential Power

“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate…

--Justice Jackson, Concurrence,

Youngstown Sheet and Tube Co. v. Sawyer

Jackson on Presidential Power

“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

--Justice Jackson, Concurrence,

Youngstown Sheet and Tube Co. v. Sawyer

Jackson on Presidential Power

“When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a ZONE OF TWILIGHT in which he and Congress may have concurrent authority or in which its distribution is uncertain…

--Justice Jackson, Concurrence, Youngstown Sheet and Tube Co. v.

Sawyer

Is there any way to roll back the president’s usurpation of Congress’ war powers?