President George W. Bush and his Vice President Dick Cheney have been telling the public all week that the President is the Commander in Chief and that he has the authority to do whatever he chooses with the military.
Our Founding Fathers disagree. In fact they were very careful not to vest such authority in the Executive Branch.
Perhaps someone in Congress would be so kind as to raise this point -- to the President and to the American Public.
Bush & Cheney have been relentless in their assertions that the Executive Branch is the most powerful of the Branches of Government.
History tells us otherwise. There is documented evidence, both implicit and explicit, that indicate that in fact, of all the branches of government, our Founders wished to restrain the power of the Executive Branch the most.
Constitutional Authority of the President vs. Congress Regarding War
First, and just in general, if the Executive Branch were viewed by the Founders as the most powerful branch, then why is it not the first article in the Constitution?
If the President, i.e., executive branch is the most powerful branch, then why is discussed in Article II while Congress is established in Article I?
Similarly, if the Commander in Chief has inherent power to run a war in any manner in which he pleases, why does the Constitution grant Congress the following (Art 1, Sec. 8):
- The Congress shall have the Power to . . . . provide for the common Defence . . .
- 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, and for governing such Part of them as may be employed in the Service of the United States
- No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law
Now, compare the Congressional powers relating to the military to those of the President (Art 2, Sec. 2):
- The President shall be Commander in Chief of the Army and Navy of the United States
Now, I am not an originalist or a strict constructionist. I believe that the Founders intended the Constitution to be read in a manner that is consistent with the time and the world in which it is being implemented. (Otherwise, only white male property owners would be able to vote, own guns, hold office, etc., because that is what they meant at the time when they wrote "all men are created equal".)
But looking at the clear language of the Constitution, the Founders gave the Congress far more responsibilities for the military than they gave to the President.
I think they intended the "Commander in Chief" to operate exactly as they intended the President to operate – in accordance with a series of checks and balances.
If the Founders had intended the "Commander in Chief" to be able to run the military with inherent authority that outweighs the authority of Congress, then they wouldn’t have given Congress such explicit authority over the military.
Congress has the power and duty to "provide for the common defense", to "declare war" when necessary, to "raise and support armies", to "provide and maintain a navy", to issue the rules under which the army and navy will operate, to call the "militia" forth when they deem an army or navy necessary (the founders never envisioned a standing army); to provide for organizing, arming, disciplining, and governing the "militia"; and to provide for the funds necessary to support the army and navy as they see fit.
On the other hand, the President gets the title, "Commander in Chief".
On the face of it, it seems that Congress has a lot more duties and a lot more authority when it comes to the military.
Indeed, this makes sense when considering the time and the place and the fears of the Founders.
Before we had the Constitution, we had the "Articles of Confederation". Those Articles did not include any provisions for an Executive Branch. The "President" merely presided over the legislature.
The Founders feared an Executive Branch. They feared having a single person in charge of a standing army. They feared having a single person in power for too long. They feared creating anything that would resemble the Monarchy from which they had escaped.
When the Founders convened to draft what we know as the Constitution today, the issue of the Executive Branch was a key topic. James Madison recorded the meetings and from his report, on June 1, 1787, he notes that "
The Committee of the whole proceeded to Resolution 7. [FN1] "that a national Executive be instituted, to be chosen by the national Legislature-for the term of ------ years &c to be ineligible thereafter, to possess the executive powers of Congress &c."
Mr. PINKNEY was for a vigorous Executive but was afraid the Executive powers of the existing Congress might extend to peace & war &c., which would render the Executive a monarchy, of the worst kind, to wit an elective one.
Much of the discussion that day centered around the Founders concerns about giving a single person authority over war and peace. Some viewed the Executive Branch as "an institution for carrying the will of the Legislature into effect". Recall that under the original version of the Constitution, the President was elected by the Congress and there was no such thing as a national popular vote or the electoral college. They even considered having more than one person making up the Executive Branch.
The Federalist Papers are instructive on what the Founders were discussing when deciding on the authority of the Executive Branch. When discussing the "Commander in Chief", Federalist Paper 69 states:
First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor.
Secondly. 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, all which, by the Constitution under consideration, would appertain to the legislature. The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States.
Madison himself said:
the power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature . . . .the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.
(From "Helividius" Number 4 (Sept. 14, 1793), in 15 THE PAPERS OF JAMES MADISON106, 108 (Thomas A. Mason et al. eds., 1985)).
In a letter to Thomas Jefferson in, Madison wrote:
The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.
The Commander In Chief is Not Much More Powerful Than a General
The Founders were clear that they did not trust a single person, i.e., the President, to do anything other than act as a General or Admiral. They were not making the "Commander in Chief" into some supreme authority over the military, i.e., where they go and when and who they fight with – that was to be the prerogative of the Congress.
Had they intended the President to have more authority than Congress, then they would have stated it that way.
In short, the role of the Commander in Chief is not nearly as powerful as Bush and Cheney assert.
It would be nice if a member of Congress would review history and bring forth the truth about the role of the Commander in Chief. The American people deserve to hear the truth. We can’t seem to get it from the White House, so that duty falls on the shoulders of the Democratic leaders in Congress.
[UPDATE:] Based on the discussion below, I have done some additional research and have stumbled upon some interesting papers. Some support my premise and others do not. But all are interesting.