The Commander-in-Chief Clause

The Commander-in-Chief Clause

Every dispute taken up in this chapter begins with a single sentence of Article II. Section 2, clause 1 provides that 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."¹ In ordinary legal usage a commander in chief is the person who holds the highest command of armed forces, so the sentence names one individual as the head of the military.² The Army and Navy come under that command without qualification. The state militia comes under it only on a condition, because the qualifying words mean that a state's forces answer to the President only after the federal government has taken them into service. Perpich v. Department of Defense returns to that condition near the end of this chapter.

The clause reads differently once Article I, section 8 is set beside it, because that section gives Congress the powers that supply the commander with something to command. Congress may declare war, raise and support armies, provide and maintain a navy, and make rules for the government and regulation of the land and naval forces, and it may also define and punish offenses against the law of nations.³ The working division that follows is easy to state: Congress declares and funds war, and the President commands the forces that fight it.⁴ The order of those verbs tracks a logical sequence, since a commander cannot direct an army that no one has raised or paid for.

Against that detailed list of congressional powers, the grant to the President is sparse. Justice Jackson, concurring in Youngstown Sheet & Tube Co. v. Sawyer, called the clause's words cryptic and observed that they imply something more than an empty title. They undoubtedly place the nation's armed forces under presidential command, yet presidential advisers have never been able to say where the authority begins or ends.⁵ That sparseness invites a tempting inference, which is that command of the forces carries power to do anything that can be done with an army or navy, at home as well as abroad. Jackson identified that reading as a loose use of the title and refused to let the office of commander stand in for a general grant of power, a point developed when Youngstown is taken up later in this chapter.⁶ He also pointed out the structural fact that limits the clause from the start: Congress cannot deprive the President of command of the army and navy, but only Congress can provide an army or navy to command.⁷

The clear core of the clause is operational control. The President presides over military decision-making, has broad authority to order troop deployments and develop battle plans, and manages operational matters.⁸ A commander who directs forces that already exist is doing exactly what the title describes, and decisions in the field often cannot wait for a legislature to deliberate. Congress holds the other side of the line, which covers the structure, organization, and broad policies of the military departments. The President therefore cannot, by executive order, amend the Uniform Code of Military Justice, eliminate the Air Force, or double the Army's annual budget.⁹ Each example maps onto an Article I power: the Code is a set of rules for governing the forces, a service branch exists because Congress raised and maintains it, and the money for the military is spent only as Congress appropriates it. The usual exam error is to read the title of commander as a source of authority over the structure and funding of the military, when the title reaches only the direction of the forces Congress has created.

The split between the two branches was deliberate, and the reasons point in different directions for each half. English history had shown how easily a Crown could lead the nation into war without the consent of Parliament, so the Framers assigned the decision to start a war to the legislature that answers to the people.¹⁰ They reinforced that choice with a limit unique to military spending: no appropriation to raise and support armies may run longer than two years. The limit keeps the President's war chest small and forces each new Congress to decide again whether to continue hostilities that an earlier Congress approved.¹¹ Command went to the President for a different reason, because battles call for unified decisions made quickly, and a large legislature cannot make them. Placing the power to start a war, the money to sustain it, and the command to run it in one person's hands would stake the nation's security and liberty on a single judgment, and the divided design is the safeguard against that.

The militia language shows the same pattern in miniature. Congress holds the power to provide for calling forth the militia to execute the laws, suppress insurrections, and repel invasions, and the President commands the militia only after it has been called into service.¹² Congress thus controls whether the President acquires command of the militia, just as it controls whether the President has an army at all. A state militia unit serving its own state therefore stays outside the clause, while the same unit, once called into actual federal service, falls within it.