Thus, as Chief Justice Chase explained in his concurring opinion in Ex parte Milligan (1866), the Commander in Chief Clause enshrines the President’s authority not just over “the command of the forces,” but also over “the conduct of campaigns.” And as Barron and Lederman explain, “more than 200 years of usage and court precedents reflect the view that the Commander in Chief Clause does confer broad substantive war powers on the President.”Ī more difficult question is how much authority the Clause gives the President beyond operations approved by Congress. Army-from President Andrew Johnson by, among other things, requiring all orders to go through Grant (and voiding all orders that didn’t) precluding Grant’s removal by Johnson without Senate approval and fixing Grant’s headquarters in Washington (where, presumably, he would be closer to Congress).Īs a result of this superintendence principle, when Congress authorizes military operations (such as through a declaration of war), it necessarily puts the President in charge of them. Grant-then the commanding general of the U.S. Thus, as a case in point, Congress likely violated the Clause in an 1867 appropriations rider that sought to insulate Ulysses S. military hierarchy, it presumably also means that Congress cannot insulate parts of the military from the President’s superintendence or interfere with the President’s supervisory role, lest Congress have the power to effectively undermine the President’s command authority-and, in Justice Jackson’s words, convert the Clause into an “empty title.” As David Barron and Martin Lederman’s definitive academic study of the Clause explains, “the textual designation of the President as the Commander in Chief was intended to ensure that that officer, and no other, would be ultimately responsible for performing that role, whatever it was to entail.” To that end, they continue, the Clause “suggests that, at least with respect to certain functions, Congress may not (by statute or otherwise) delegate the ultimate command of the army and navy . . . to anyone other than the President.”Īlthough that principle, read narrowly, would only prohibit Congress from literally placing someone other than the President atop the U.S. Second, and in contrast to the experience under the Articles of Confederation, it places such civilian superintendence in the hands of a single person. Sawyer (1952)), “These cryptic words have given rise to some of the most persistent controversies in our constitutional history,” with Presidents at various points claiming that it “vests power to do anything, anywhere, that can be done with an army or navy.”Īt a minimum, all agree that the Clause has two separate but related purposes: First, in response to the charge in the Declaration of Independence that the King had “affected to render the Military independent of and superior to the Civil Power,” it ensures civilian superintendence over the military-and, as such, the subordination of the military to civilian (and democratically accountable) control. The Commander in Chief Clause of Article II, Section 2 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.” As Justice Jackson put it in the Steel Seizure case ( Youngstown Sheet & Tube Co.

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. 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 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 Offenses against the United States, except in Cases of Impeachment.

What is a commander in chief