Presidential Power and Commander in Chief Clause

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Article II, Section 2, Clause 1:

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.

The President’s power with regard to the armed forces has long been debated. In defense of executive action in Indochina, the Legal Adviser of the State Department, in a widely circulated document, contended:

Under the Constitution, the President, in addition to being Chief Executive, is Commander in Chief of the Army and Navy. He holds the prime responsibility for the conduct of United States foreign relations. These duties carry very broad powers, including the power to deploy American forces abroad and commit them to military operations when the President deems such action necessary to maintain the security and defense of the United States.

In 1787 the world was a far larger place, and the framers probably had in mind attacks upon the United States. In the 20th century, the world has grown much smaller. An attack on a country far from our shores can impinge directly on the Nation’s security. In the SEATO treaty, for example, it is formally declared that an armed attack against Viet Nam would endanger the peace and security of the United States.

Under our Constitution it is the President who must decide when an armed attack has occurred. He has also the constitutional responsibility for determining what measures of defense are required when the peace and safety of the United States are endangered. If he considers that deployment of U.S. forces to South Viet Nam is required, and that military measures against the source of Communist aggression in North Viet Nam are necessary, he is constitutionally empowered to take those measures.1

Opponents of such expanded presidential powers have contended, however, that the authority to initiate war was not divided between the Executive and Congress but was vested exclusively in Congress. The President had the duty and the power to repeal sudden attacks and act in other emergencies, and in his role as Commander in Chief he was empowered to direct the armed forces for any purpose specified by Congress.2 Though Congress asserted itself in some respects, it never really managed to confront the President’s power with any sort of effective limitation, until the 1970s.

1: Leonard C. Meeker, The Legality of United States Participation in the Defense of Viet Nam, 54 Dep’t State Bull. 474, 484–485 (1966). See also John N. Moore, The National Executive and the Use of the Armed Forces Abroad, 21 Naval War College Rev. 28 (1969); Quincy Wright, The Power of the Executive to Use Military Forces Abroad, 10 Va. J. Int. L. 43 (1969); Documents Relating to the War Powers of Congress, The President’s Authority as Commander in Chief and the War in Indochina, S. Comm. on Foreign Rels., 91st Cong. 1 (1970) (Under Secretary of State Katzenbach), 90 (J. Stevenson, Legal Adviser, Department of State), 120 (Professor Moore), 175 (Asst Att’y Gen. Rehnquist).
2: E.g., F. Wormuth & E. Firmage, To Chain the Dog of War (1989), F.J. Ely, War and Responsibility: Constitutional Lessons of the Vietnam War and its Aftermath (1993); U.S. Commitments to Foreign Powers: Hearings Before the S. Comm. on Foreign Rels., 90th Cong. 9 (1967) (Bartlett); War Powers Legislation: Hearings Before the S. Comm. on Foreign Rels., 92d Cong. 7 (1971).