Deciphering the Commander-in-Chief Clause
abstract. The conventional wisdom is that the Commander-in-Chief Clause arms the President with a panoply of martial powers. By some lights, the Clause not only equips the President with exclusive control over military operations, but also conveys the powers to start wars, create military courts, direct and remove officers, and wield emergency wartime powers. Under such readings, the meaning of “commander in chief” is as obvious as it is unequivocal—it confers some measure of absolute and unchallengeable authority upon the President. Yet, seemingly paradoxically, proponents of this stance cannot say where the Commander in Chief’s power begins and ends. In particular, establishing the Clause’s limits is an acute and persistent problem.
Using eighteenth-century understandings as a yardstick, this Article topples the orthodox reading of the Clause and demarcates the Clause’s elusive frontiers. In contrast to modern assumptions, the Article reveals that eighteenth-century commanders in chief enjoyed neither sole nor supreme authority over the military. Throughout the seventeenth and eighteenth centuries, there were, at any one time, a multitude of British and American commanders in chief, and both assemblies and other military officials consistently directed these commanders, often in quite intrusive ways. By borrowing a familiar expression, the Constitution incorporated the modest, contemporary conception. Rather than being a sui generis military potentate, the President is nothing more than a chief commander, or what Alexander Hamilton called the “first General and Admiral.” The Commander in Chief of the Army and Navy lacks a vast arsenal of military authority but instead possesses only the constrained powers of a general and admiral. Crucially, the Clause does not grant any exclusive authority over peacetime operations or even the conduct of war. Nothing about the term “commander in chief” would have suggested such autonomy because previous chief commanders had lacked such independence. Indeed, early Presidents never objected to congressional bills that sought to regulate military operations pervasively, including wars. Rather, they signed the proposals into law and, thereafter, sought to faithfully execute them.
To be sure, the President is more than a mere general and admiral. Due to the rest of Article II and the Presentment Clause, the President wields considerable authority and influence over the military, far more than a generic commander in chief would. These other sources of power convey authority over the appointment, direction, and removal of military officers and substantial influence on which military bills will become law. In the grand scheme of things, the Commander-in-Chief Clause is far less significant than these other clauses.
How we read the Commander-in-Chief Clause matters. Without a sense of the Clause’s alpha and omega, Presidents will continue to cite it to evade, minimize, and commandeer congressional powers. If this Article’s assertions are correct, however, Presidents will no longer be able to insist that the Founders established a chief commander that can start wars or one that enjoys exclusive authority over operations. By decrypting the Clause, this Article highlights the extent to which Presidents have amassed power untethered from constitutional moorings and also may help fend off further executive overreach. Although some puzzles remain, this Article takes some initial strides in the long march towards deciphering the Commander-in-Chief Clause.
author. James Monroe Distinguished Professor of Law; Albert Clark Tate, Jr., Professor of Law; and Miller Center Senior Fellow, University of Virginia. Thanks to the wonderful students in my Fall 2022 Presidential Powers Class. Gratitude to participants in the Virginia and Yale faculty workshops and to Bruce Ackerman, Justin Driver, William N. Eskridge, Jr., Jack Landman Goldsmith, John C. Harrison, Adam Hirsch, Harold Hongju Koh, John D. Morley, Daniel R. Ortiz, Claire Priest, Robert C. Post, Reva Siegel, Paul B. Stephan, and James Q. Whitman. Thanks to the research librarians at the University of Virginia Law Library for their guidance in finding and accessing materials. Thanks to Shannon Bader, Ben Buell, Will Bleveans, Aquila Maliyekkal, Harper North, Jacob Rinear, and Riley Segars for excellent and enthusiastic research assistance. Finally, my hearty thanks to the editors of the Yale Law Journal for superb suggestions and edits, particularly Nathaniel S. Hay, Jordan A. Kei-Rahn, Karina M. Shah, and Dena M. Shata.
The Commander-in-Chief Clause is chock-full of absolute and exclusive military powers,1 or so our modern Executive insists. And, like a procrastinator’s to-do list, the catalog of such powers grows ever longer. In peace and in war, with something approaching the regularity of a military march, the Executive invokes the Clause to commandeer more power.
Recent administrations have depicted the Commander-in-Chief Clause as a source of significant power that stretches across a variety of domains. During the Clinton Administration, the Office of Legal Counsel (OLC) opined on a proposed appropriations rider that sought to limit the President’s ability to place American military forces under United Nations commanders. The OLC proclaimed that “there can be no room to doubt that the Commander-in-Chief Clause commits to the President alone the power to select the particular personnel who are to exercise tactical and operational control over U.S. forces.”2 With the advent of the War on Terror in 2001, the Bush OLC observed that “[t]he power of the President is at its zenith under the Constitution when the President is directing military operations of the armed forces, because the power of Commander in Chief is assigned solely to the President,”3 and claimed “inherent constitutional power” to place troops overseas, order preemptive strikes, initiate retaliatory counterattacks,4 and dictate the conditions of prisoner treatment and detention.5 Although then-candidate Barack Obama balked at such claims,6 his Administration asserted, without explanation, that Congress could not constrain the Commander in Chief’s ability to transfer prisoners from Guantanamo Bay.7 The Trump and Biden Administrations echoed assertions of congressional impotence to impose transfer restrictions.8
Even if they agree on little else, recent Presidents speak with one voice in insisting that they enjoy an array of exclusive military powers. Why do they sing from the same hymnal? Because it suits their purposes, policy and electoral, to claim broad military powers and to rarely, if ever, concede an inch. The Commander-in-Chief Clause, with its brevity, constitutes an ideal instrument to amass more power. If the President cannot grant foreigners tactical control over American units, deploy troops overseas, order the use of coercive interrogation techniques, and release prisoners of war, the President is not a true commander in chief, or so the arguments go.
Despite their repeated and undifferentiated use of the Commander-in-Chief Clause to claim one or another power, modern Executives have been little interested in outlining all the powers encompassed by the Clause and, importantly, all those authorities beyond its scope. In Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson decried the tendency of executive-branch lawyers to cite the Commander-in-Chief Clause relentlessly even though they could not delimit it. “[J]ust what authority goes with the name [of Commander in Chief] has plagued presidential advisers who would not waive or narrow it by nonassertion yet cannot say where it begins or ends.”9 Jackson had succumbed to this tendency when, as Attorney General for President Franklin Roosevelt, he had cited the Clause to evade statutory constraints on the President’s authority to provide military aid to the United Kingdom prior to American entry into World War II.10
Such reticence and caginess have continued since. In 1975, a House committee called upon State Department Legal Advisor Monroe Leigh for testimony about the War Powers Act.11 Leigh cautiously observed that “it is very difficult to lay down any rule of thumb [about the Clause] because . . . our constitutional system . . . constantly produc[es] . . . questions” that even “the brightest people” could not foresee.12 Hence, “[i]t is almost impossible to give a rigid and precise definition of what the President’s constitutional powers are as Commander in Chief[.]”13 The Clinton Administration said that the Clause clearly gave the President exclusive authority over selecting personnel for tactical control, “[w]hatever the scope of this [military] authority in other contexts.”14 In other words, the Clause’s hypothetical limits might be laid bare some other day.15
As far as the Executive is concerned, that day never quite comes. A definition, because it comes with limits, is something of a box. Executive officials, Presidents included, do not wish to box themselves in. From the perspective of advisers, supplying rigid and precise definitions of the Commander in Chief of the Army and Navy (CINCAN) is unwise, for they may live to regret their rigor and strictness. Today’s limiting definition may become tomorrow’s unwanted constraint, one that must be gingerly danced around or openly scorned. Better to say that the President has authority to deal with the matter at hand without defining what is outside the CINCAN’s reach.
In light of recent experience, we must revise James Madison’s trenchant remark that “[w]ar is in fact the true nurse of executive aggrandizement.”16 It now is palpable that in war, in peace, and in the grey area in between, the Commander-in-Chief (CINC) Clause is a steady wellspring of aggrandizement. No one quite knows what it means and what powers it conveys. Yet, paradoxically, it is that deep uncertainty that makes it a powerful trump card in debates about presidential power over wars, foreign affairs, and national security.
This Article describes where the Clause begins and ends by unearthing what it meant to be a commander in chief in the eighteenth century. It provides an exhaustive account of commanders in chief, the Commander-in-Chief Clause, and how that Clause fits into the Constitution. Many of the conclusions about the Clause’s original meaning may seem startling, bordering on implausible. At the Founding, the CINC Clause—“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”17—had a rather modest ambit. We are blind or resistant to a narrow reading because we approach the Clause against the backdrop of more than a century of expansive readings of it. We are conditioned to suppose that it grants the President an array of exclusive and extraordinary military powers. To see the Clause in a different light, we must compartmentalize or shunt aside much of what we imagine it to mean.
We can perhaps move beyond stale assumptions and be open to new possibilities if we stop visualizing a military autarch and instead imagine someone akin to an editor in chief. The commander in chief is the principal commander in the same way that an editor in chief is the principal editor. If you prefer a martial phrase, think of “commander in chief” as nothing more than a “chief commander.” The latter phrase seems generic and perhaps does not suggest any exceptionality or autonomy. Though the component words are essentially the same, the order is different, and that minor change may shake us out of our easy and familiar suppositions.
This Article advances several claims. First, at the time of the Constitution’s creation, commanders in chief were plentiful and unexceptional. Every leader of a military unit was its CINC. A commander in chief of a company served under the commander in chief of a brigade who was subordinate to an army’s commander in chief. Great Britain had hundreds of CINCs, each directing a specific unit and almost all of them subordinate to another CINC. America inherited this tradition. During the Revolutionary War, George Washington was the CINC of the Continental Army. Yet, that Army had many other CINCs. By providing that the President is the CINCAN, the Constitution makes clear that the President is a chief commander. To quote Alexander Hamilton, as CINCAN, the President is akin to a “first General and Admiral.”18 But just as the creation of a first general would hardly preclude a second or third general, the establishment of a CINCAN in the Constitution did nothing to prevent the creation, or recognition, of other CINCs. Indeed, early Congresses and Presidents understood that the military had multiple commanders in chief. Without hyperbole, one can say that the number of CINCs in the eighteenth century rivaled the number of administrators in a modern university.
Second, every CINC was subordinate to other institutions. In England and, later, in Great Britain, the Crown and Parliament could command the numerous commanders in chief. Moreover, because officers operated within a hierarchy, almost every English and British CINC could direct other CINCs. America adopted this framework. Prior to the Constitution, the Continental Congress directed the many army CINCs, including George Washington. Because the Constitution incorporated a CINC and contained nothing suggesting a transformation, the Constitution borrowed the prevailing concept. As before, an obligation to follow the commands of others was wholly consistent with the status of serving as a commander in chief. Further, like every other CINC that preceded it, the Constitution’s CINCAN lacks a sphere of protected operational autonomy.
Third, CINCANs may do what generals and admirals may do. They may set up camps, regulate the conduct of marches, and direct patrolling vessels. Likewise, the CINCAN may set passwords, grant safe passages, and create other interstitial rules of conduct and operations. Because the President is but a general and admiral, there are matters beyond the CINCAN’s reach. The CINCAN cannot formally declare war, nor commence warfare. Further, the CINCAN cannot raise and support armies and navies or create a criminal code for the military. Finally, the CINCAN may not suspend the privilege of the writ of habeas corpus, order the military trial of civilians, seize private property, or declare martial law.
Fourth, Congress enjoys sweeping authority over the military and its CINCs. Congress creates, funds, and equips the military.19 Congress’s power to declare war20 includes the power to command warfare. Hence, Congress can order the military, including the CINCAN, to wage war. Wielding its power to govern and regulate the military,21 Congress can direct voyages, regulate encampments, and choose military targets. Further, Congress can create criminal codes covering personal and military conduct.22 Congress’s power to regulate the military and its conduct of wars makes the CINCAN an intermediary in a hierarchy that has Congress at the apex, the CINCAN in the middle, and officers and the enlisted at the bottom of the pyramid.
Finally, despite Congress’s far-reaching legislative authority, the CINCAN will have, as a practical matter, great latitude. As President, the CINCAN enjoys substantial nonmilitary powers that grant the CINCAN greater power and influence over the military. The President can appoint all military officers23 and can, by virtue of the Article II Vesting Clause, direct and remove them.24 The powers to appoint and remove make it more likely that officers will heed the CINCAN’s direction. Furthermore, a President’s considerable sway also reflects Congress’s institutional limits. A bicameral process coupled with a deliberate, qualified veto25 yields few legislative blitzkriegs. This ability to stall and, in many cases, block reforms yields a temporary freedom of action in battle and elsewhere. Furthermore, legislators cannot predict the future and often will be reluctant to impose constraints in a field where discretion seems necessary. In sum, Congress will often be reluctant to micromanage the military and its operations, and when it attempts to do so, its interventions will often be dilatory and fruitless.
This Article proceeds in five parts. Part I parses the Clause. It argues that the Clause’s text does not support many assumptions about its meaning. Many contemporary readings reflect what we have imbibed about the Clause rather than sustained attempts to grapple with it.
Part II underscores the modest original understanding of “commander in chief.” In contrast to the modern view of CINCs as lofty and potent, Part II advances two points: CINCs were numerous, and none enjoyed any operational autonomy. In Britain, her colonies, and America, there were many commanders in chief at any one time and each was subordinate, whether to other CINCs, the Crown, and/or legislatures. With the advent of the Constitution, Americans maintained this practice of multiplicity and subordinacy.26 The CINCAN served as the first general and admiral.27 Just as generals and admirals lacked unicity or a protected sphere of autonomy, so too did the CINCAN. In the Constitution’s early years, the legislative and executive branches recognized that there were multiple CINCs. Furthermore, Congress regulated the military, telling the CINCAN where and how to conduct military operations, and, by implication, which were forbidden.
Because every CINCAN is also President, every CINCAN also enjoys numerous presidential powers that enhance the CINCAN’s military sway. Part III sketches the power of a CINCAN and the authority and influence that the CINCAN enjoys by virtue of being President. The Vesting Clause, the Presentment Clause, and a host of other provisions make the CINCAN far more powerful and influential than most previous CINCs.
Part IV describes various war and military powers that the President lacks. The Commander-in-Chief Clause grants no emergency powers in wartime or otherwise. Nor does it authorize Presidents to wage war. It conveys no exclusive authority over designating subcommanders, holding prisoners of war, or establishing military tribunals.
Part V considers some puzzles. It discusses the functions of the CINC Clause, whether “Commander in Chief” is an office or a status, and whether the Clause establishes civilian control of the military. It enters more speculative territory and considers whether Congress can require the CINCAN to consult others; oblige the CINCAN to secure the consent of others prior to taking certain military actions; create military officers who are independent of the CINCAN; and use its power to regulate the military to override other constitutional powers of the presidency, like the veto and appointment powers.
Some comments about methodology are obligatory. This Article offers an originalist reading of the Commander-in-Chief Clause. Some may deny the relevance of the effort because they believe that what the Commander-in-Chief Clause has become is far more significant than what it once meant in the misty past. As Oliver Wendell Holmes put it, the life of the law is experience, not logic.28 And some would add that the life of the law is certainly not to be found in forgotten practices dredged up by a graying professor in an august journal. But, in the academy and in the courts, the now-dominant groups regard originalist readings as relevant, even essential. For the burgeoning originalist crowd, original meanings are often decisive. For many other scholars and jurists, the original meaning of the CINC Clause is an element in a mélange of Bobbitian factors to be considered and weighed.29 Hence, for numerous scholars and jurists, what the Clause meant in the past is germane to what we should take it to mean today.
How we make sense of the CINC Clause matters. Presidents have deployed the Clause to usurp congressional power to declare wars, to thwart laws that regulate and govern the armed forces, and to ignore statutory conditions on the use of military funds. If this Article’s claims are correct, Presidents and their advisers will have to fight on different terrain. They can continue to rely upon practices and policy arguments for their insistence on broad presidential power and for their claim that Congress cannot intrude upon certain military matters. But they will no longer be able to insist that the Founders constitutionalized a CINCAN that can start wars or a chief commander that enjoys exclusive authority over military operations. Deciphering the Clause helps to disarm and neutralize the Executive’s aggressive and grasping claims.