A PRIMER ON PRESIDENTIAL POWER

ARTICLE II OF THE CONSITUTION OF THE UNITED STATES OF AMERICA

Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

[Description of the Electoral College omitted]

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section. 2.

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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Federalist No. 69 (Hamilton)

The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York. [Hamilton's purpose in this overview of the Presidency is to show that it is far less powerful than the English crown and more like the governorship of New York. Having left in this passage to give a taste of Hamilton's disdain, I've excised those parts dealing with the execrable nature of the King. DGC]

That magistrate is to be elected for FOUR years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence....

The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.... In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.

The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses....

The President is to be the "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. He is to have power to grant reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them WITH RESPECT TO THE TIME OF ADJOURNMENT, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States." In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: 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 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.... Thirdly. The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction....

The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.... It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from the sovereign power which relates to treaties....

The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor.

The President is to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices....

PUBLIUS.

The Federalist No. 74 (Hamilton)

THE President of the United States is to 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." The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority. [Emphasis added]

"The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers." This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.

He is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance....

The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts.2 In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.

PUBLIUS.

The Debates in the Federal Convention of 1787, reported by James Madison : August 25 (Footnotes are omitted in all quotes from Madison's notes)

Mr. SHERMAN moved to amend the "power to grant reprieves & pardon" so as to read "to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate."

On the question

N. H. no. Mas. no. Ct. ay. Pa. no Md. no. Va. no. N. C. no. S. C. no. Geo. no.

"except in cases of impeachment" inserted nem: con: after "pardon"

On the question to agree to -"but his pardon shall not be pleadable in bar"

N. H. ay. Mas. no. Ct. no. Pa. no. Del. no. Md. ay. Va. no. N. C. ay. S. C. ay. Geo. no.

August 27

Art X. Sect. 2. being resumed.

Mr. L. MARTIN moved to insert the words "after conviction" after the words "reprieves and pardons"

Mr. WILSON objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. He stated the case of forgeries in which this might particularly happen.-

Mr. L. MARTIN withdrew his motion.

September 15

Art: II. Sect. 2. "he shall have power to grant reprieves and pardons for offences against the U. S. &c"

Mr. RANDOLPH moved to "except cases of treason." The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.

Col: MASON supported the motion.

Mr. Govr. MORRIS had rather there should be no pardon for treason, than let the power devolve on the Legislature.

Mr. WILSON. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.

Mr. KING thought it would be inconsistent with the Constitutional separation of the Executive & Legislative powers to let the prerogative be exercised by the latter. A Legislative body is utterly unfit for the purpose. They are governed too much by the passions of the moment. In Massachussets, one assembly would have hung all the insurgents in that State: the next was equally disposed to pardon them all. He suggested the expedient of requiring the concurrence of the Senate in Acts of Pardon.

Mr. MADISON admitted the force of objections to the Legislature, but the pardon of treasons was so peculiarly improper for the President that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. He would prefer to either an association of the Senate as a Council of advice, with the President.

Mr. RANDOLPH could not admit the Senate into a share of the Power. the great danger to liberty lay in a combination between the President & that body.

Col: MASON. The Senate has already too much power. There can be no danger of too much lenity in legislative pardons, as the Senate must con concur, & the President moreover can require 2/3 of both Houses.

On the motion of Mr. Randolph.

N. H. no. Mas. no. Ct. divd. N. J. no. Pa. no. Del. no. Md. no. Va. ay. N. C. no. S. C. no. Geo. ay.

As Hamilton makes clear, the Presidency was designed to be, when compared to the King of England, a relatively weak office. Hamilton and the other Framers, of course, did not foresee that the Presidency would be a hotly contested office, that the Electoral College would become (more or less) a rubber stamp for the clear winner of the popular vote and that, as the holder of the sole national political office, the President would become a symbol of our nationhood. In concept, rather than practice, the President is solely a creature of executive power, with little ability to interfere with the legislature other than his conditional veto. The President only has power to the extent that the federal government has power, and the federal power is, in theory at least, limited. The Presidential term lasts only for four years and, if push comes to shove, the Congress has the power acting alone to remove him and other Executive Branch officials from office. The President's power to pardon does not reach impeachment and conviction. By the standards of the 18th century, a weak executive indeed.

Because the power to pardon is committed wholly to the President, it makes a nice place to start when considering conflicts between Congress and the Presidency. "[H]e shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." If the power to pardon belongs entirely to the President, Congress has no power to regulate pardons. This was brought up several times at the Convention, where it was argued that the President should not be able to pardon treason but should have to gain the consent of the Senate. The argument was always defeated. Thus, it is necessarily the case that any law passed by Congress that purported to regulate the power to pardon -- even if founded in one of Congress' express powers, like the budget authority -- would be a nullity. The President would not have to pay such a statute any attention.

But the pardon power goes beyond this. We think of it as a merciful power; as the power to mitigate harshness in the law. The President has a pardon attorney at the Justice Department, who reviews pardon applications from those convicted of a crime and recommends the worthiest to the President. Even on those rare occasions in which it is abused, the pardon power is thought of as of relatively minor interest. A moments thought, however, shows that we have been lulled into ignoring the great power that this clause puts into the hands of the President.

The pardon power allows the President to ignore any criminal law and to make any dispute a political dispute with Congress.

The first implication of the pardon power -- that the President has the power, if not the right, to ignore any criminal law -- follows from the President's plenary power to pardon "all offenses." The President can pardon himself. The President can pardon those acting in concert with him, or those he directs. The President can pardon even a crime of which the recipient has not been convicted; and thus can pardon even where it is not clear that any crime has been committed. It must also be contemplated, though this has not been tested, that "all offenses" includes future offenses; that the President can pardon a planned crime before it has even been committed.

The only limitation is that the Presidential pardon does not reach impeachment by the House and conviction in the Senate. The power of the Congress to remove any officeholder from office is not subject to the pardon power and is, in its way, equally plenary. But impeachment and trial involves the Congress and Presidency in a political process that is distinct from criminal prosecution. It is, in its way, a greater Congressional lever against the presidency than conviction of a crime. Presidents, after all, do not exercise the pardon power in this way and, with only a few exceptions, act illegally only where they know they have the political upper-hand. Nevertheless, starting at this extreme -- where the raw political power of the Presidency meets the raw political power of the Congress -- helps shape our understanding of the practicalities of presidential power even when we are far from the extreme. As we discuss other, less clear, presidential prerogatives, remember that the President can always "go to the country;" he can always force a political resolution.

Having looked at a grant of presidential power that is clear and plenary, let's look at foreign affairs, an area that is less clear. There is no simple statement in the Constitution setting forth responsibility for foreign affairs. Rather, specific powers are shared between the President and the Congress. Congress has control of foreign trade and tariffs. The President receives foreign ambassodors (passed off by Hamilton as more of a convenience than anything else). The President negotiates treaties and appoints ambassadors, but only with the advice and consent of the Senate. The President is commander in cheif of the armed services, but that, as we shall see, is complicated. Ordinarily, we would think that the federal government would have only the enumerated power. However, as the Supreme Court has explained, the usual rules don't apply to foreign affairs. When it comes to foreign affairs the national government is government of unlimited power and the President is our King:

It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted.

The two classes of powers are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states. That this doctrine applies only to powers which the states had is self-evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source. During the Colonial period, those powers were possessed exclusively by and were entirely under the control of the Crown. By the Declaration of Independence, 'the Representatives of the United States of America' declared the United (not the several) Colonies to be free and independent states, and as such to have 'full Power to levy War, conclude Peace, contract Alliances, establish Commerce and to do all other Acts and Things which Independent States may of right do.'

As a result of the separation from Great Britain by the colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America.... A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union. That fact was given practical application almost at once. The treaty of peace, made on September 3, 1783, was concluded between his Brittanic Majesty and the 'United States of America.' 8 Stat., European Treaties, 80....

'The states were not 'sovereigns' in the sense contended for by some. They did not possess the peculiar features of sovereignty,-they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war.' 5 Elliot's Debates, 212.1 It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens; and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign. The power to acquire territory by discovery and occupation, the power to expel undesirable aliens, the power to make such international agreements as do not constitute treaties in the constitutional sense, none of which is expressly affirmed by the Constitution, nevertheless exist as inherently inseparable from the conception of nationality. This the court recognized, and in each of the cases cited found the warrant for its conclusions not in the provisions of the Constitution, but in the law of nations. [Quoting Rufus King]

In Burnet v. Brooks, we said, 'As a nation with all the attributes of sovereignty, the United States is vested with all the powers of government necessary to maintain an effective control of international relations.' Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' Annals, 6th Cong., col. 613. The Senate Committee on Foreign Relations at a very early day in our history February 15, 1816), reported to the Senate, among other things, as follows:

'The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution. The committee considers this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.' 8 U.S.Sen.Reports Comm. on Foreign Relations, p. 24.

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment-perhaps serious embarrassment-is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty-a refusal the wisdom of which was recognized by the House itself and has never since been doubted. In his reply to the request, President Washington said:

'The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.' 1 Messages and Papers of the Presidents, p. 194....

United States v. Curtiss-Wright Export Corp., 299 US 304, 316-322 (1936) (citations omitted).

In other words, when it comes to foreign affairs the United States is a government of general powers, equal to any other government. Congress can make laws with solely international effect even in the absence of an an enumerated power in the Constitution because the United States must have all the powers usual to a government acting internationally -- and the President is its sole representative to the world. The President can negotiate treaties and even enter into executive agreements binding the United States without Senate approval because such powers are necessary and can only be negotiated by the President.

Finally, we come to the President's power as Commander in Chief of the armed services. The Constitutional grant of power is broad, like the pardon power: "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." However, certain powers that would otherwise fall to the Commander in Chief have been explicitly carved out and given to Congress: Congress can declare war; Congress can enact regulations covering the military; and Congress has budgetary authority for the armed services. The military power of the United States, like the foreign power, is a general power of government and is inherent in the national government. Neither the states nor the colonies ever had the power to go to war, though the governors of the colonies and the states were usually the commanders of their militias. How do we, then, strike the balance between the President and Congress?

We start with the fact that the President is given a broad grant of power while Congress is given only certain explicit powers. Ordinarily, we would think that the exceptions must be narrowly construed as exceptions to the general grant of Presidential powers. But we must remember that, when dealing with international relations -- hot or cold -- Congress and the President both have the inherent power to act where appropriate. In other words, the President's power as Commander in Chief can, itself, be seen as a carve-out to Congress' general inherent power to legislate over military affairs. While the Constitution's grant of the position of Commander in Chief to the President is unambiguous, the term itself is less clear than "pardon." Queen Elizabeth II is the commander in chief of Great Britain's armed forces, but only a figure head. What are the President's power as Commander in Chief?

Historically, the answer has been the Congress, thorugh its war powers, can set a national goal that the President has the responsibility of achieving militarily through the means that seem best to him.

The designation by the Constiuttion of the President as Commander in Chief of the armed forces confers upon him substantive authoirty in that capacity. This conclusion is suported by not merely countless examples from our nation's history, but by more than one judicial comment on the subject.... "Whether the President in fulfilling his duties, as Commander in Chief, in suppressing an insurrection, has met with ushc armed hostile resistance ... as will compel him to accord to them the character of belligerents is a question to be decided by him [italics in original] and this Court must be governed by the decisions and acts of the political departments of the govenrment to which this power was entrusted. 'He must determine what degreee of force the the crisis demands. [Little v. Barreme, 67 US (2 Black) 635 (1863).] Justice Jackson ... expressed a similar thought: "We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I sould indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our [society]." [The Steel Seizure case.]

The third facet of the power of Commander-in-Chief is the right and obligation to determine how hostilities, once lawfully begun, shall be conducted. This aspect [has] seldom, if ever, been seriously challenged. ... [Congress' power to declare war] necessarily extends to all legislation essential to the presecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns. That power and duty belongs to the President as Commander-in-Chief." [Ex parte Milligan, 71 US (4 Wall) 2 (1866) (emphasis added).]

In the Second World War [decisions were required] that partook as much of political strategy as the did of military strategy. Should the United States concentrate its military and material resources on either the Atlantic or Pacific fronts to the exclusion of the other, or should it pursue the war on both fronts simultaneously? Where should the recongquirest of Allied territories in Europe and Africa which had been captured by the Axis powers begin? What should be the goal of the Allied powers? [D]ecisions such as these were reached by the Allied commanders-in-chief, and chief executireve officers of the Allied nations, without any formal congressional participation.

Remarks of William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, before the Association of the Bar of the City of New York, May 28, 1970.

The grant to the President of the powers of the Commander in Chief of the armed forces of the United States must necessarily have two additional components. It must the case that the President is responsible for preventing attacks on the United States and that he his also responsible for responding to attacks on the United States, albeit in concert with Congress.

Given the President's constitutional powers to respond to national emergencies caused by attacks on the United States, and given also that section 2(c)(3) of the WPR does not attempt to define those powers [Section 2(c)(3) of the War Powers Resolution provides that: The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities ... are exercised only pursuant to ... (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. 50 U.S.C. § 1541(c)], we think that that provision must be construed simply as a recognition of, and support for, the President's pre-existing constitutional authority. Moreover, as we read the WPR, action taken by the President pursuant to the constitutional authority recognized in section 2(c)(3) cannot be subject to the substantive requirements of the WPR, particularly the interrelated reporting requirements in section 4 and the "cut off" provisions of section 5, 50 U.S.C. §§ 1543-1544. (30) Insofar as the Constitution vests the power in the President to take military action in the emergency circumstances described by section 2(c)(3), we do not think it can be restricted by Congress through, e.g., a requirement that the President either obtain congressional authorization for the action within a specific time frame, or else discontinue the action. Were this not so, the President could find himself unable to respond to an emergency that outlasted a statutory cut-off, merely because Congress had failed, for whatever reason, to enact authorizing legislation within that period....

Whatever view one may take of the meaning of section 2(c)(3) of the WPR, we think it clear that Congress, in enacting the "Joint Resolution [t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States," Pub. L. No. 107-40, 115 Stat. 224 (2001), has confirmed that the President has broad constitutional authority to respond, by military means or otherwise, to the incidents of September 11.

First, the findings in the Joint Resolution include an express statement that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Id. This authority is in addition to the President's authority to respond to past acts of terrorism. In including this statement, Congress has provided its explicit agreement with the executive branch's consistent position, as articulated in Parts I-III of this memorandum, that the President has the plenary power to use force even before an attack upon the United States actually occurs, against targets and using methods of his own choosing....

Third, it should be noted here that the Joint Resolution is somewhat narrower than the President's constitutional authority. The Joint Resolution's authorization to use force is limited only to those individuals, groups, or states that planned, authorized, committed, or aided the attacks, and those nations that harbored them. It does not, therefore, reach other terrorist individuals, groups, or states, which cannot be determined to have links to the September 11 attacks. Nonetheless, the President's broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters....

In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President's constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. (32) In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

The President's Constitutional Authority To Conduct Military Operations Against Terrorists And Nations Supporting Them, Memorandum Opinion For The Deputy Counsel To The President (John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001).

Where does all this leave us? The President and Congress share responsiblity for conducting foreign affairs and for defending the country. However, for reasons historical, constitutional and of necessity, the primary responsibility for dealing with other nations, both in times of peace and war, rests with the President. His is the inherent authority and responsibility for the defense of the nation and for achieving our strategic goals, which he sets in combination with Congress. In the end of the day, however, the sharing out of power between the Presidency and Congress is not done according to any constitutional formula, but must instead be hammered out between the political branches. The President will be as powerful as he can be, and as weak as Congress can force him to be. Because this jockeying for power will always be, at its core, political, the final decision is made by the people. As always, we will get the government we deserve.

Posted by David Cohen at February 10, 2006 12:00 AM