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Barron & Lederman on Exclusive Article II Powers:
David Barron & Marty Lederman have published a new article on war powers, The Commander In Chief At The Lowest Ebb — Framing The Problem, Doctrine, And Original Understanding. From the introduction:
This Article. . . is the first of a two-part effort to determine how the constitutional argument for preclusive executive war powers, now being pressed so boldly, is best conceived. Is it properly understood to be rooted in fidelity to the founding generation? Does it reflect instead the principles established by a longstanding constitutional tradition that, although concededly at odds with that early understanding, has emerged over time as exigencies presented themselves? Or is it instead dependent on the stark contention that the world has changed, due to either the advent of nuclear weapons or the rise of terrorism, in such a way as to render obsolete and intolerable the constitutional mechanisms for checking the Commander in Chief that earlier generations consistently accepted?
The conclusion: The Bush Administration's constitutional vision is all about a living, breathing Article II.
PersonFromPorlock:
Once again I offer my entirely unqualified opinion that the Commander-in-Chief is an entirely separate office, subordinate to Congress's Article I powers to regulate the military, that is held by the person who is also the President. Therefore the powers of the CinC, whatever they may be, have no bearing on the Presidency.
1.18.2008 5:27pm
KenB (mail):
I am generally sympathetic to the argument that the threat we face is such that we need to respond in nontraditional ways. But how can you fail to appreciate the irony that those usually calling for "strict construction" may be relying on a "living constitution" concept while those who ordinarily scorn anything but "living constitution" arguments may now see virtue in "original meaning" arguments?
1.18.2008 5:41pm
Kazinski:
PersonFromPorlock:
So it is your contention that the Chairman of the Constitutional Convention, fresh from commanding the Army for 8 years, helping to write the job description for his next gig, goes along wholeheartedly without a peep to running the army as the gofer for a body of know-nothings.

I think not.

I think it is more likely that Washington told the convention: "This is how its going to work. Any questions? Well, now that we have that settled, on to Article III."
1.18.2008 6:01pm
Steve H. (mail):
I tried to read it, but mostly I was reminded of why I usually avoid reading law review articles. It seemed like there were 35+ pages of throat-clearing before the authors even pointed out that the Constitution grants Congress the power "To make Rules for the Government and Regulation of the land and naval Forces." To me, that's a pretty critical point.

I would suggest that academics focus more on what they are trying to say, and less on explaining why they are saying it.
1.18.2008 6:25pm
Waldensian (mail):

So it is your contention that the Chairman of the Constitutional Convention, fresh from commanding the Army for 8 years, helping to write the job description for his next gig, goes along wholeheartedly without a peep to running the army as the gofer for a body of know-nothings.

Wow, your apparent assumptions about Washington are just totally wrong. Washington very clearly understood, during the Revolution, that he ran the Army as the gofer for a body of know-nothings. Indeed, Washington was often at pains to emphasize the supremacy of civilian leadership of the military. It's really what made him such a great American.
1.18.2008 6:26pm
Dilan Esper (mail) (www):
So it is your contention that the Chairman of the Constitutional Convention, fresh from commanding the Army for 8 years, helping to write the job description for his next gig, goes along wholeheartedly without a peep to running the army as the gofer for a body of know-nothings.

Kazinski, despite your derision, Porlock's position is expressly mandated by the language of the document. All the war powers (other than the commander in chief clause) are included in Article I and with specificity, and the President is required at all times to take care that the laws be faithfully executed. That indicates that the "know-nothings" will regulate the military and the President will command the military within the limitations set by Congress.
1.18.2008 6:26pm
frankcross (mail):
Actually, I thought Washington was notorious for not speaking during the Convention or taking any strong positions.
1.18.2008 6:28pm
Kazinski:
I certainly know that Washington, and the rest of the Constitutional convention strictly believed in civilian control of the military, and congressional control of the regulation and purse strings. That is not what PersonfromPorlock said, he said it was a separate office under the direct control of Congress.

That is wrong. If Congress authorizes war against Iraq, Congress may not order the CIC to march up the left side of the Euphrates to Baghdad instead of the right side. If the CIC orders the army to go up the left side the generals better do it or resign.

That is the point I was making and I stick by it.
1.18.2008 6:57pm
Steve H. (mail):
Kazinski, can you cite any contemporaneous authority for whether the founders believed that Congress had no authority over what side of the river to march on? Your position makes sense to me (but didn't Julius Caesar cause an uproar by crossing a river?), but I'm not aware of any authority from the 1780s or thereabouts supporting that view.

Absent authority one way or the other, I think the Commander-in-Chief clause may just mean that the generals and admirals have to listen to the President, not that the President need not listen to Congress.
1.18.2008 7:02pm
frankcross (mail):
Actually, if you read the article you'll see that the Continental Congress gave directions much like "which side of the river" and that Washington followed them.
1.18.2008 7:13pm
John A. Fleming (mail):
I've been reading the article. So far my main thinking is, (to extend the saying), you go to war with the laws that were put in place after the last war. The Executive has an understandable focus of "just win, baby". It's gonna take a while to sort out which, if any laws need to be changed to at least not hinder effective prosecution of the war. Both the Judiciary and Congress act slow. So what's the Army to do in the meantime, hmm?

Washington's example IS instructive. He communicated often by letter to the Congress, asking for supplies and changes to the Articles of War, but since letters were subject to intercept, he didn't inform them of ongoing or planned operations. And they in their turn had to trust his military judgement, since he was the best General they could find. So they, like everybody else, learned about the battle results from the newspapers and riders.

Nevertheless, at one point early in the war, the Congress began to wonder if they had made the right choice, and started to look at possible replacements. Washington had to drop what he was doing, go to Philadelphia, and make his case personally.

Would that we would have a Congress and President that communicated with, trusted and deferred to each other in like manner. That would help prevent the current situation where the war is "heavily lawyered, but not well".
1.18.2008 7:34pm
AnonLawStudent:
Frank / Steve H. / PfromP,

The Revolution provided the Framers with empirical evidence for the undesirability of conducting war by committee. As for contemporary evidence, Rufus King rejected giving the Congress the power to "make war" in favor of the power to "declare war" precisely because the former might be misunderstood as granting command of the Armed Forces. Farrand, 2 Records of the Federal Convention of 1787 318-19 (1911). The Supreme Court explicitly acknowledged that Congress cannot make laws commanding the military in Ex Parte Milligan, 71 U.S. 2, 139 (1866) (Chase, C.J., concurring) and Fleming v. Page, 50 U.S. 603, 615 (1850).
1.18.2008 8:03pm
frankcross (mail):
Anon, check the article, the "declare war" is discussed, along with other evidence from Farrand. But the significance of Farrand is pretty debatable, and the article cites more useful ratification history, such as Madison telling the Virginians that the Congress retained the power to "direct" the military in the new Constitution.
1.18.2008 8:23pm
Jagermeister:
I think the issue of "which side of the river" is addressed on page 737:


Indeed, the opinion in Hamdan suggests another, when Justice Stevens quotes directly from Chief Justice Chase's
concurring dictum in Ex parte Milligan147 that Congress may not "direct the conduct of campaigns."


A very timely article, especially in view of the discussion over Yoo's "advice" on presidential powers. Many thanks for the link.
1.18.2008 8:29pm
Owen Hutchins (mail):

So it is your contention that the Chairman of the Constitutional Convention, fresh from commanding the Army for 8 years, helping to write the job description for his next gig, goes along wholeheartedly without a peep to running the army as the gofer for a body of know-nothings.

I think not.



Yep. Quite clearly, you are not thinking.

CiC is part of the job of President, not some separate office. Yes, Washington went along with it, because he, like many others at that time, felt that a large, standing army, was anathema.
1.18.2008 8:47pm
PersonFromPorlock:
It's not really very complicated: if the CinC can overrule Congress vis-a-vis the military, then Congress's Article I powers to regulate the same are meaningless. Therefore, the CinC <i>must</i> be subordinate to Congress. Since the President is not subordinate to Congress, they must be separate offices.

Basically, CinC isn't a position of power but of responsibility; and that responsibility answers to Congress.
1.18.2008 10:04pm
AnonLawStudent:
PfromP,

It isn't a black and white issue. It's more appropriate to view Congressional versus Presidential control of the military as a spectrum, with broad regulatory and ex ante authorization powers on the Congressional end, and specific and ex poste authorization powers on the Presidential end. Thus, Congress has a strong power for conditioning authorization on specified Presidential conduct ex ante, such that the President can elect to engage or not engage on those terms, e.g. the Quasi War, but Congress is far more limited once hostilities have begun.

Frank Cross,

I'm curious how you think "the significance of Farrand is pretty debatable" given that it reflects the convention itself, along with its compromises, versus the far more party and idealogically specific statements to the various legislatures. I'm not arguing that the latter aren't worthy of consideration, but I would argue that Farrand should prevail.
1.18.2008 10:52pm
MarkField (mail):
Anon, I think you've misunderstood the dialogue which led to the current language in the Constitution. In the original draft of the Constitution, the power now given to Congress "to declare war" (Article I, Sec. 8, cl. 11) actually read "to make war". It's worth quoting the short debate which resulted in the amendment of that language (I've edited it somewhat from Madison's Notes, August 17, 1787):

"Mr. PINCKNEY opposed ... vesting this power in the Legislature. Its proceedings were too slow. It would meet but once a year. ...
Mr. BUTLER ... was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it. ...
Mr. GERRY never expected to hear in a republic a motion to empower the Executive alone to declare war."

Madison and Gerry moved to amend the clause to its current language. Their reason is very instructive: "Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks." This motion passed unanimously.

Several points appear from this. First, it's clear from Gerry's comment that they were interpreting the term "make war" to be equivalent to "declare war". Thus, the change simply clarified the term. Second, the specific reason Madison and Gerry gave for the change -- "repel sudden attacks" -- does nothing to increase Executive power. Third, Rufus King's statement, interesting as it is, can't define the term because it wasn't his amendment which became the final language, it was the amendment of Madison and Gerry. I doubt you'd find two more unlikely candidates for claims of vast executive power.

Finally, I'd note that the actual practice of the Founding Era provides a better guide than the legislative history (which is bad originalism at best). As others have noted, that actual practice -- i.e., Washington's behavior -- isn't very helpful to proponents of exalted war powers.
1.18.2008 11:34pm
John A. Fleming (mail):
About Washington's service as President of the Convention:
He didn't have to say anything at all. Just by being there, the one indispensable man of the Revolution, he kept everyone else on their best behavior and focused on the task at hand: doing right for all those who had sacrificed their lives and property for the promise of the Revolution, and working together to make the necessary compromises to birth a new nation. Nobody wanted to act like a jerk or argue in bad faith with Washington watching. They knew that Washington would very much like to be at Mt. Vernon, but was here by his sense of duty to the nation. That attitude rubbed off. And finally, knowing that Washington had just won a war against a monarch, and was personally set against monarchial powers, there was little support for the creation of a new kind of one.
1.19.2008 12:08am
David M. Nieporent (www):
First, it's clear from Gerry's comment that they were interpreting the term "make war" to be equivalent to "declare war". Thus, the change simply clarified the term.
That's a little too glib. You don't need to "clarify" unless words can have more than one interpretation. And you don't normally worry about that unless someone is misinterpreting it. If everyone understood that "make war" was equivalent to "declare war," they would have felt no need to change it.

And King's statement illustrates that in fact there was more than one way to understand this.

Madison and Gerry's amendment illustrates that they did not consider the power to declare war to be coextensive with the power to make war.
1.19.2008 12:15am
AnonLawStudent:
Mark,

In addition to David Nierporent's textual comment, I would pick up on your comment "that the actual practice of the Founding Era provides a better guide than the legislative history." War by committee during the Revolution proved to be a disaster, hence the need to place command in a single individual, and the context for Pinkney's comment about legislative proceedings being "too slow." Legislatures craft compromises by agreement; military commanders issue orders for execution.

As for the power to repel attacks, modern scholars have applied this analysis to troops in the field as well, i.e. once Congress has authorized military action, it can't subsequently hamstring the President in a manner which negatively impacts his ability to protect forces in the field. See my 10:52PM comment re: a temporal spectrum, with the critical time being Congressional authorization for use of force.

For anyone in the peanut gallery who wants to read the convention notes for themselves, see LINK and turn to image 318.
1.19.2008 1:11am
MarkField (mail):

That's a little too glib. You don't need to "clarify" unless words can have more than one interpretation. And you don't normally worry about that unless someone is misinterpreting it. If everyone understood that "make war" was equivalent to "declare war," they would have felt no need to change it.


David, you need to read it more carefully. Gerry was clearly responding to Butler, who wanted to vest the power in the Executive. Butler used the term "make", Gerry responded with "declare". Gerry, at least, understood the two terms as equivalent.

Also, if we're going to be discussing this, it's worth quoting the comments of Mason:

Mason "was agst. giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make." Again, Mason's comment clearly indicates that they understood "make" to mean the same as "declare"; if "declare" were narrower, as you suggest, then Mason's reluctance to give power to the Executive makes no sense.

After Madison's and Gerry's amendment passed, Pinckney (who supported giving the power to the Executive) moved to strike the whole clause. He didn't get a second.

All this, of course, has to be understood in the context of the British system. The King had the power to "make" (i.e., "declare": compare Federalist 69 and Blackstone, Book 1, p. 249) war and peace, as well as being CinC. The Constitution thus narrowed the executive power from the British system.
1.19.2008 1:27am
MarkField (mail):

In addition to David Nierporent's textual comment, I would pick up on your comment "that the actual practice of the Founding Era provides a better guide than the legislative history." War by committee during the Revolution proved to be a disaster, hence the need to place command in a single individual, and the context for Pinkney's comment about legislative proceedings being "too slow." Legislatures craft compromises by agreement; military commanders issue orders for execution.


I didn't see this before I posted my response to David, but I think that response covers your first and last points.

I agree with you that the experience of the Revolution demonstrated severe problems with having Congress run a war. That's a bit different, though, from your claim to find textual support in Madison's and Gerry's amendment. For the reasons I gave, I don't think that helps you. Moreover, I don't think the proceedings in Convention meet the current understanding of "original public meaning" or similar phrase. Thus, your point about the experience of the Revolution is much more relevant than the textual argument anyway.

As for how the public viewed the clause, we have some clues from contemporaneous statements:

Butler in the SC Convention: "It was at first proposed to vest the sole power of making peace or war in the Senate; but this was objected to as inimical to the genius of a republic, by destroying the necessary balance they were anxious to preserve. Some gentlemen were inclined to give this power to the President; but it was objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction."

James Wilson in his Lectures on Law: "As the law is now received in England, the king has the sole prerogative of making war. On this very interesting power, the constitution of the United States renews the principles of government, known in England before the conquest. This indeed, as we are told by a well informed writer, may be accounted the chief difference between the Anglo-Saxon and the Anglo-Norman government. In the former, the power of making peace and war was invariably possessed by the wittenagemote; and was regarded as inseparable from the allodial condition of its members. In the latter, it was transferred to the sovereign...."

St. George Tucker, Commentaries on Blackstone: "In England the right of making war is in the king. In Sweden it was otherwise after the death of Charles XII. until the revolution in 1772, when from a limited monarchy, Sweden became subject to a despot. With us the representatives of the people have the right to decide this important question, conjunctively with the supreme executive who may, on this occasion as on every other, (except a proposal to amend the constitution,) exercise a qualified negative on the joint resolutions of congress; but this negative is unavailing if two thirds of the congress should persist in an opposite determination; so that it may be in the power of the executive to prevent, but not to make, a declaration of war."

There are others as well, particularly Story. I picked the ones I did because they show the alternate use of "make" and "declare".
1.19.2008 1:45am
David M. Nieporent (www):
Again, Mason's comment clearly indicates that they understood "make" to mean the same as "declare"; if "declare" were narrower, as you suggest, then Mason's reluctance to give power to the Executive makes no sense.
First, you yourself are the one who agreed that they were "clarifying" it; you don't clarify two things that are understood to be the same by replacing one with the other.

Second, if legislative history is a tough way to determine these things, then the Cliff's Notes of legislative history are even tougher. You're not talking about Mason's comment; you're talking about Madison's summary of Mason's comment.

Third, you yourself quote Mason's position as, "He preferred declare to make." If Mason understood them to be the same, that preference would make no sense.

Fourth, if we're talking about how the words were understood, then it hardly makes sense to discard the usage by others of the time. In other words, you can't ignore King's comment, which gives us insight into that, regardless of whether they passed his amendment or someone else's. And once you look at King's comment, you can see how Mason's reluctance does make sense: the power to declare war is narrower than the power to make war, but not lesser.
1.19.2008 3:13am
Kazinski:
I think it is very clear from the Constitution and the level of technology at the time that the founding fathers envisioned Congress making the decisions that could be made at leisure ahead of time, regulating the army and the militia, provsioning it and declaring war. But that is it, especially at a time when communications were limited to letters, and being with the Army could cause real privation. It is obvious Congress couldn't have any role in commanding the army. Not to mention you can't spend 10 hours debating whether to retreat or advance before or during a battle.

Raising, provisioning and ordering the Army was a plenty big enough of a role for Congress, and really all they are suited for, then and now.
1.19.2008 4:04am
PersonFromPorlock:

Raising, provisioning and ordering the Army was a plenty big enough of a role for Congress, and really all they are suited for, then and now.

Very true, except for leaving out deciding when military force should be used. But it leaves unsettled the question of whether the CinC can act outside the boundaries Congress sets: is he their creature, or his own?
1.19.2008 8:45am
Steve2:
Was "execute the laws faithfully" ever understood by anyone except me to mean the President only has two powers: the Executive power of saying "How high?" when Congress says "Jump" and the veto power of saying "Get a 2/3 vote first, and then tell me how high" when Congress says "Jump!"?
1.19.2008 10:24am
AnonLawStudent:
Steve2,

Their are quite a few powers enumerated in Art. II. Take a look, then let us know if you still think "the President has only two powers . . ." As applied to the current discussion, Congress cannot order the President to undertake military action - it can authorize and appropriate funds, but if the President disagrees with any conditions or restrictions set by Congress, he has no obligation to take action.
1.19.2008 11:01am
MarkField (mail):

In other words, you can't ignore King's comment, which gives us insight into that, regardless of whether they passed his amendment or someone else's. And once you look at King's comment, you can see how Mason's reluctance does make sense: the power to declare war is narrower than the power to make war, but not lesser.


This would be a better point if we could be certain that King had spoken openly on the floor. It's not at all clear that he did. In Madison's Notes, he quotes the debate on the clause (most of which has been quoted here) and then the vote is listed, each state yay or nay. Next to CT is an asterisk (footnote), which reads: "On the remark by Mr. King that "make" war might be understood to "conduct" it which was an Executive function, Mr. Elseworth gave up his objection, and the vote of Cont. was changed to-ay."

Maybe King said it so everyone could hear, maybe he just spoke to Ellsworth and Madison overheard.

As for the rest of your points, I'll submit on the papers.
1.19.2008 11:20am
Steve2:
Sorry, AnonLawStudent, I left out the President's other three main powers from Article II, Section 2: granting pardons, nominating judges, and administering subordinate officers in the executive branch. Didn't really think they were relevant to the discussion. I also left out the minor powers (calling Congress into session in an emergency, settling disputes between the House and Senate about when a session ends, and suggesting laws to Congress) and duties (State of the Union speech, getting foreign ambassadors foisted off on him) as irrelevant as well.
1.19.2008 11:34am
frankcross (mail):
Wasn't King's comment translated by Madison, too? All this use of Farrand is unreliable. In part for reasons given, in part because originalists now understand that it's about original "meaning" rather than "intent." So ratification records are the best source. As is contemporary understanding, and the most recent use of the term Commander in Chief was that of the Revolutionary War. In the Federalist Hamilton referred to C-in-C as the chief general, which in a democracy would presumably be subordinate to Congress.
1.19.2008 12:21pm
MarkField (mail):

Wasn't King's comment translated by Madison, too?


Yes. Sorry if my post didn't make that clear. I don't know how it looks on the page in Madison's original notes, but Farrand has it as a footnote to the vote tabulation.


All this use of Farrand is unreliable. In part for reasons given, in part because originalists now understand that it's about original "meaning" rather than "intent."


Agreed.
1.19.2008 2:49pm
Michael Edward McNeil (mail) (www):
Steve2 wrote:
Was “execute the laws faithfully” ever understood by anyone except me to mean the President only has two powers:  the Executive power of saying “How high?” when Congress says “Jump” and the veto power of saying “Get a 2/3 vote first, and then tell me how high” when Congress says “Jump!”?


Lots of people, such as Steve2 here exemplifies, seem to think that the President (the only magistrate in America elected by the people as a whole) should act merely as the lapdog of that coterie of particularist interests known as the Congress.  While some states have historically been set up that way, with an overweening legislature and essentially powerless executive, it’s never been the way of the United States — except perhaps during that constitutional interregnum of dismal failure known as the Articles of Confederation.  The executive of the fledgling United States was not set up that way, particularly when foreign powers are to be encountered in war and peace.

Insightful observer of early American democracy, Alexis de Tocqueville put it well, writing in his famous masterpiece Democracy in America (1835-40):
The American lawgivers had a difficult task to fulfill; they wanted to create an executive power dependent on the majority that yet should be sufficiently strong to act freely on its own within its proper sphere.  […]  The lawgivers of the Union appreciated that the executive power could not worthily and profitably carry out its task unless it was given more stability and strength than were granted in the individual states.  The President was appointed for four years and could be reelected.  With his future to consider, he should have the courage to work in the public interest and the means to do so.

The President was made the one and only representative of the executive power of the Union.  Care was taken not to subordinate his will to that of a council, a dangerous expedient which both clogs government action and lessens the ruler's responsibility.  […]  Some legislatures can act directly on the executive power, and we have seen that the Americans were careful to prevent that.  But their action may be indirect.  The power of the two houses […] with the making of laws at their command, there is always a danger that they will gradually encroach on that share of power which the Constitution intended the President to preserve.

This dependence of the executive power is one of the inherent vices of republican constitutions.  The Americans could not eliminate that tendency which leads legislative assemblies to take over the government, but they did make it less irresistible.

I submit that much of what the Democratic-controlled Congress and the left have been agitating for over many decades time is, in effect, the “incredible shrinking Presidency” — especially with regard to constraining the president’s freedom to act as commander in chief in time of war.  Not only is this quite ahistorical in terms of the powers that the president has constitutionally wielded beyond the frontiers of the country and in time of war, but it’s manifestly dangerous, potentially disastrous, in a world where many tyrants continue to conspire and seek to dominate.

It’s not protecting the Constitution of the United States to seek to turn the president into a eunuch.
1.19.2008 3:53pm
MarkField (mail):
Michael, your own quote from Toqueville demonstrates that you're wrong. It specifically says that Congress can legislate in such a way as to affect the President. It also says that it is inherent in republican government for the executive to be dependent on the legislative, a fact which is clearly true:

John Locke: ""In all Cases ... the Legislative is the Supreme Power. For what can give Laws to another must [necessarily] be superior to him. [A]nd since the Legislative is ... Legislative of the Society, ... by the right it has to make Laws for all the parts and for every Member of the Society, prescribing Rules to their actions and giving power of Execution where they are transgressed, the Legislative must needs be the Supreme, and all other Powers in any Members or parts of the Society, derived from and subordinate to it."

Roger Sherman: the Executive is "nothing more than an institution for carrying the will of the Legislature into effect."

James Wilson: "did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. ... The only powers he conceived strictly Executive were those of executing the laws, and appointing officers...."

Consider, also, just how weak the Executive was at the time Toqueville wrote compared to today. While Hamilton surely would applaud the accretion of power to the Executive, it's hard to picture many other Founders doing so, and pretty easy to picture most of them appalled by it. In any originalist argument, the President would be MUCH weaker than most people today advocate.
1.19.2008 4:05pm
Bart (mail):
Barron and Lederman's article spends an inordinate amount of time exploring the question of whether the President's Article II CiC power may preempt Congress command authority to direct military operations when the Constitution does not in fact grant Congress any such command authority.

I. TEXT

B&L note that the term "Commander in Chief" implies that the President exercises nearly total authority over military matters, but argue that such an implication is limited by Article I's grant of a handful of enumerated powers over military matters. The authors reason quite correctly that to interpret the term commander in chief to grant total authority over military matters would render several provisions of Article I nullities.

However, B&L commit the same sin on behalf of Congress which they justifiably criticize those like Yoo of committing in behalf of the Executive. For example, B&L appear to assume that the Article I clause permitting Congress to regulate the uniformed services and the Necessary and Proper Clause impliedly grant Congress extensive command authority to direct the activities of the military. However, this implication would similarly render the President's CiC power a nullity.

The text of the Constitution does not support either the Presidential supremacy of Yoo or the Congressional supremacy of B&L.

In his book "America's Constitution: A Biography," Professor Amar suggests a superior interpretation of the text of Articles I and II. Article I expressly limits Congress to the specific enumerated powers contained therein. In contrast, Article II makes general grants of Executive and CiC power to the President, implying that the President is not limited to powers specifically enumerated in Article II and may perform all acts which can be reasonably be interpreted to be executive or command in nature.

However, Amar's reasonable interpretation leaves us with areas of overlap between Article I's specifically enumerated powers over the military and the general military command authority of the President.

Under the basic tenants of statutory interpretation, specific language takes precedence over general language. Consequently, a more reasonable application of Articles I and II would hold that Congress' exercise of a specific Article I power over the military takes precedence over a conflicting exercise of the President's general executive and CiC powers. Thus, the President exercises plenary authority over all executive and CiC matters which are not expressly enumerated in Article I. In any area enumerated in Article I, the President may still exercise his or her executive and CiC authority in the absence of congressional action. However, when Congress exercises a specific Article I power, the general power of the President gives way.

Article II makes the President CiC and Article I nowhere grants Congress command authority over the troops. Consequently, B&L's interpretation of the N&P Clause to imply command authority is contrary to the express grants of authority made in Articles I and II.

Further, Article I's grant to Congress of the power to regulate the uniformed services simply means that Congress can enact legislation like the UCMJ which establishes the rules for the good order and discipline of individual members of the armed services. This clause has never been interpreted to allow Congress to exercise command authority to direct the operations of the military.

Finally, Congress' power to declare war simply means that a President may not start a war without the approval of Congress. The power to declare war no more implies a command authority over the conduct of that war than Congress' power to confirm ambassadors implies that Congress may instruct the ambassador who to conduct his or her business. In footnote 136, B&L cite to some dicta from Bas v. Tigny and Talbot v. Seeman suggesting that Congress has the power to declare a "partial war" limited in place, objects and time. However, the existence of such a power is pure speculation since Congress has never declared a "partial war" (which would make no practical sense) and no Court has had the opportunity to render a ruling finding such a power. In any case, even if Congress had the power to say declare war against Iraq and limit the scope of that war to the geographical confines of Iraq, with the objective of regime change and limit the period of time to complete the task to one year, this is not the power to command and direct troops in the completion of that limited task. Nor is this the power to revisit the declaration of war at a later time and amend it.

Therefore, B&L's premise that Congress has command authority to direct the operations of the military which would lead to a conflict with the President's CiC power does not appear to have a basis in the text of the Constitution.

II. Original Understandings

B&L's citations to the powers of the British Parliament and Continental Congress over their respective militaries are inapposite.

The British Parliament has gradually taken nearly all executive powers from the Crown over the centuries, including the executive power to command the military.

The Continental Congress was even more powerful than Parliament. Britain had a head of state in the King, who still exercised some if not all executive power. In stark contrast, the Colonies did not have a head of state during the Revolution and the Continental Congress exercised all national executive power.

In stark contrast, our Constitution makes the President the sole executive and CiC except for a few enumerated powers reserved to Congress by Article II.

Likewise, B&L's citation to Revolutionary era state constitutions is not particularly availing. Revolutionary era state constitutions that granted the title of CiC also enumerated the CiC powers the governor could exercise. In contrast, the Constitution's Article I enumerates and thus limits the powers of Congress over the military, while Article II makes the President sole executive and CiC without any limiting language apart from the enumerated delegations by Article I to Congress.

B&L then argue that the lack of debate over the respective roles of the President and Congress in military matters is evidence that the Founders did not intend to depart from the practices of the British Parliament or the Continental Congress. This contention does not comport with history. The Constitution was a complete departure from the parliamentary form of government which was the basis of the British Parliament and the Continental Congress. Unlike those prior governments, the Constitution created a branch of government separate from the legislature which was granted all executive power. Indeed, Article II's express grant of CiC power to the President is itself a drastic departure from the preceding Articles of Confederation which granted Congress a circumscribed power to appoint a commander in chief.

The relative roles of the President and Congress over the military which are suggested by the text of the Constitution are the same as the roles pitched to the People during the ratification debates. Hamilton's Federalist 69 argues that the President's CiC power encompasses "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." Hamilton implies here that the President's CiC power to command and direction of the military are distinct and different from Congress' power to regulate the military.

In sum, neither the text or the original intent of the Constitution supports the contention that Congress possesses the power to command and direct military operations.

As a final note, it is unfortunate that Professor Balkin declines to allow criticism of his theories at the his Balkinization threads Barron and Lederman's article spends an inordinate amount of time exploring the question of whether the President's Article II CiC power may preempt Congress command authority to direct military operations when the Constitution does not in fact grant Congress any such command authority.

I. TEXT

B&L note that the term "Commander in Chief" implies that the President exercises nearly total authority over military matters, but argue that such an implication is limited by Article I's grant of a handful of enumerated powers over military matters. The authors reason quite correctly that to interpret the term commander in chief to grant total authority over military matters would render several provisions of Article I nullities.

However, B&L commit the same sin on behalf of Congress which they justifiably criticize those like Yoo of committing in behalf of the Executive. For example, B&L appear to assume that the Article I clause permitting Congress to regulate the uniformed services and the Necessary and Proper Clause impliedly grant Congress extensive command authority to direct the activities of the military. However, this implication would similarly render the President's CiC power a nullity.

The text of the Constitution does not support either the Presidential supremacy of Yoo or the Congressional supremacy of B&L.

In his book "America's Constitution: A Biography," Professor Amar suggests a superior interpretation of the text of Articles I and II. Article I expressly limits Congress to the specific enumerated powers contained therein. In contrast, Article II makes general grants of Executive and CiC power to the President, implying that the President is not limited to powers specifically enumerated in Article II and may perform all acts which can be reasonably be interpreted to be executive or command in nature.

However, Amar's reasonable interpretation leaves us with areas of overlap between Article I's specifically enumerated powers over the military and the general military command authority of the President.

Under the basic tenants of statutory interpretation, specific language takes precedence over general language. Consequently, a more reasonable application of Articles I and II would hold that Congress' exercise of a specific Article I power over the military takes precedence over a conflicting exercise of the President's general executive and CiC powers. Thus, the President exercises plenary authority over all executive and CiC matters which are not expressly enumerated in Article I. In any area enumerated in Article I, the President may still exercise his or her executive and CiC authority in the absence of congressional action. However, when Congress exercises a specific Article I power, the general power of the President gives way.

Article II makes the President CiC and Article I nowhere grants Congress command authority over the troops. Consequently, B&L's interpretation of the N&P Clause to imply command authority is contrary to the express grants of authority made in Articles I and II.

Further, Article I's grant to Congress of the power to regulate the uniformed services simply means that Congress can enact legislation like the UCMJ which establishes the rules for the good order and discipline of individual members of the armed services. This clause has never been interpreted to allow Congress to exercise command authority to direct the operations of the military.

Finally, Congress' power to declare war simply means that a President may not start a war without the approval of Congress. The power to declare war no more implies a command authority over the conduct of that war than Congress' power to confirm ambassadors implies that Congress may instruct the ambassador who to conduct his or her business. In footnote 136, B&L cite to some dicta from Bas v. Tigny and Talbot v. Seeman suggesting that Congress has the power to declare a "partial war" limited in place, objects and time. However, the existence of such a power is pure speculation since Congress has never declared a "partial war" (which would make no practical sense) and no Court has had the opportunity to render a ruling finding such a power. In any case, even if Congress had the power to say declare war against Iraq and limit the scope of that war to the geographical confines of Iraq, with the objective of regime change and limit the period of time to complete the task to one year, this is not the power to command and direct troops in the completion of that limited task. Nor is this the power to revisit the declaration of war at a later time and amend it.

Therefore, B&L's premise that Congress has command authority to direct the operations of the military which would lead to a conflict with the President's CiC power does not appear to have a basis in the text of the Constitution.

II. Original Understandings

B&L's citations to the powers of the British Parliament and Continental Congress over their respective militaries are inapposite.

The British Parliament has gradually taken nearly all executive powers from the Crown over the centuries, including the executive power to command the military.

The Continental Congress was even more powerful than Parliament. Britain had a head of state in the King, who still exercised some if not all executive power. In stark contrast, the Colonies did not have a head of state during the Revolution and the Continental Congress exercised all national executive power.

In stark contrast, our Constitution makes the President the sole executive and CiC except for a few enumerated powers reserved to Congress by Article II.

Likewise, B&L's citation to Revolutionary era state constitutions is not particularly availing. Revolutionary era state constitutions that granted the title of CiC also enumerated the CiC powers the governor could exercise. In contrast, the Constitution's Article I enumerates and thus limits the powers of Congress over the military, while Article II makes the President sole executive and CiC without any limiting language apart from the enumerated delegations by Article I to Congress.

B&L then argue that the lack of debate over the respective roles of the President and Congress in military matters is evidence that the Founders did not intend to depart from the practices of the British Parliament or the Continental Congress. This contention does not comport with history. The Constitution was a complete departure from the parliamentary form of government which was the basis of the British Parliament and the Continental Congress. Unlike those prior governments, the Constitution created a branch of government separate from the legislature which was granted all executive power. Indeed, Article II's express grant of CiC power to the President is itself a drastic departure from the preceding Articles of Confederation which granted Congress a circumscribed power to appoint a commander in chief.

The relative roles of the President and Congress over the military which are suggested by the text of the Constitution are the same as the roles pitched to the People during the ratification debates. Hamilton's Federalist 69 argues that the President's CiC power encompasses "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." Hamilton implies here that the President's CiC power to command and direction of the military are distinct and different from Congress' power to regulate the military.

In sum, neither the text or the original intent of the Constitution supports the contention that Congress possesses the power to command and direct military operations. Consequently,

As a final note, it is unfortunate that Professor Balkin declines to allow criticism of his theories at the Balkinization threads like the one I offered above, claiming that such debate will render his thread "unreadable." I will allow others to decide whether my critique makes this thread "unreadable.".
1.19.2008 4:06pm
Bart (mail):
[However, the double post may make my above post "unreadable." Here is a clean single post. Sorry about the error.]

Barron and Lederman's article spends an inordinate amount of time exploring the question of whether the President's Article II CiC power may preempt Congress command authority to direct military operations when the Constitution does not in fact grant Congress any such command authority.

I. TEXT

B&L note that the term "Commander in Chief" implies that the President exercises nearly total authority over military matters, but argue that such an implication is limited by Article I's grant of a handful of enumerated powers over military matters. The authors reason quite correctly that to interpret the term commander in chief to grant total authority over military matters would render several provisions of Article I nullities.

However, B&L commit the same sin on behalf of Congress which they justifiably criticize those like Yoo of committing in behalf of the Executive. For example, B&L appear to assume that the Article I clause permitting Congress to regulate the uniformed services and the Necessary and Proper Clause impliedly grant Congress extensive command authority to direct the activities of the military. However, this implication would similarly render the President's CiC power a nullity.

The text of the Constitution does not support either the Presidential supremacy of Yoo or the Congressional supremacy of B&L.

In his book "America's Constitution: A Biography," Professor Amar suggests a superior interpretation of the text of Articles I and II. Article I expressly limits Congress to the specific enumerated powers contained therein. In contrast, Article II makes general grants of Executive and CiC power to the President, implying that the President is not limited to powers specifically enumerated in Article II and may perform all acts which can be reasonably be interpreted to be executive or command in nature.

However, Amar's reasonable interpretation leaves us with areas of overlap between Article I's specifically enumerated powers over the military and the general military command authority of the President.

Under the basic tenants of statutory interpretation, specific language takes precedence over general language. Consequently, a more reasonable application of Articles I and II would hold that Congress' exercise of a specific Article I power over the military takes precedence over a conflicting exercise of the President's general executive and CiC powers. Thus, the President exercises plenary authority over all executive and CiC matters which are not expressly enumerated in Article I. In any area enumerated in Article I, the President may still exercise his or her executive and CiC authority in the absence of congressional action. However, when Congress exercises a specific Article I power, the general power of the President gives way.

Article II makes the President CiC and Article I nowhere grants Congress command authority over the troops. Consequently, B&L's interpretation of the N&P Clause to imply command authority is contrary to the express grants of authority made in Articles I and II.

Further, Article I's grant to Congress of the power to regulate the uniformed services simply means that Congress can enact legislation like the UCMJ which establishes the rules for the good order and discipline of individual members of the armed services. This clause has never been interpreted to allow Congress to exercise command authority to direct the operations of the military.

Finally, Congress' power to declare war simply means that a President may not start a war without the approval of Congress. The power to declare war no more implies a command authority over the conduct of that war than Congress' power to confirm ambassadors implies that Congress may instruct the ambassador who to conduct his or her business. In footnote 136, B&L cite to some dicta from Bas v. Tigny and Talbot v. Seeman suggesting that Congress has the power to declare a "partial war" limited in place, objects and time. However, the existence of such a power is pure speculation since Congress has never declared a "partial war" (which would make no practical sense) and no Court has had the opportunity to render a ruling finding such a power. In any case, even if Congress had the power to say declare war against Iraq and limit the scope of that war to the geographical confines of Iraq, with the objective of regime change and limit the period of time to complete the task to one year, this is not the power to command and direct troops in the completion of that limited task. Nor is this the power to revisit the declaration of war at a later time and amend it.

Therefore, B&L's premise that Congress has command authority to direct the operations of the military which would lead to a conflict with the President's CiC power does not appear to have a basis in the text of the Constitution.

II. Original Understandings

B&L's citations to the powers of the British Parliament and Continental Congress over their respective militaries are inapposite.

The British Parliament has gradually taken nearly all executive powers from the Crown over the centuries, including the executive power to command the military.

The Continental Congress was even more powerful than Parliament. Britain had a head of state in the King, who still exercised some if not all executive power. In stark contrast, the Colonies did not have a head of state during the Revolution and the Continental Congress exercised all national executive power.

In stark contrast, our Constitution makes the President the sole executive and CiC except for a few enumerated powers reserved to Congress by Article II.

Likewise, B&L's citation to Revolutionary era state constitutions is not particularly availing. Revolutionary era state constitutions that granted the title of CiC also enumerated the CiC powers the governor could exercise. In contrast, the Constitution's Article I enumerates and thus limits the powers of Congress over the military, while Article II makes the President sole executive and CiC without any limiting language apart from the enumerated delegations by Article I to Congress.

B&L then argue that the lack of debate over the respective roles of the President and Congress in military matters is evidence that the Founders did not intend to depart from the practices of the British Parliament or the Continental Congress. This contention does not comport with history. The Constitution was a complete departure from the parliamentary form of government which was the basis of the British Parliament and the Continental Congress. Unlike those prior governments, the Constitution created a branch of government separate from the legislature which was granted all executive power. Indeed, Article II's express grant of CiC power to the President is itself a drastic departure from the preceding Articles of Confederation which granted Congress a circumscribed power to appoint a commander in chief.

The relative roles of the President and Congress over the military which are suggested by the text of the Constitution are the same as the roles pitched to the People during the ratification debates. Hamilton's Federalist 69 argues that the President's CiC power encompasses "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." Hamilton implies here that the President's CiC power to command and direction of the military are distinct and different from Congress' power to regulate the military.

In sum, neither the text or the original intent of the Constitution supports the contention that Congress possesses the power to command and direct military operations.

As a final note, it is unfortunate that Professor Balkin declines to allow criticism of his theories at the Balkinization threads like the one I offered above, claiming that such debate will render his thread "unreadable." I will allow others to decide whether my critique makes this thread "unreadable."
1.19.2008 4:11pm
frankcross (mail):
As far as I can tell, that lengthy and detailed post totally begs the question -- which is the meaning of CinC. The article makes a reasonably good case that it was meant to provide civilian control of the military but remain subordinate to Congress. You seem to largely assume that CinC necessarily provides plenary authority but that's just argument by definition, and I see little or no originalist support for that. The Hamilton quote seems to support the opposite position in its reservation of congressional power to regulate the armed forces, a reservation express in the constitutional text.
1.19.2008 6:20pm
PersonFromPorlock:
Bart:

"To make rules for the government and regulation of the land and naval forces" is a grant of plenary power. Under it, there is simply nothing Congress cannot do with regard to the military so long as it's expressed as a 'rule'. Before this power, the CinC stands mute.
1.19.2008 6:54pm
Bart (mail):
PersonFromPorlock:

Bart: "To make rules for the government and regulation of the land and naval forces" is a grant of plenary power. Under it, there is simply nothing Congress cannot do with regard to the military so long as it's expressed as a 'rule'. Before this power, the CinC stands mute.

Words have meanings. Regulate and command are not synonymous.

Regulate means to bring order and discipline to something.

Command means to direct something.

The Founders and the Courts have had no trouble understanding these words. The argument that regulating is synonymous to commanding simply has no textual or precedential basis.
1.19.2008 8:13pm
frankcross (mail):
Bart, you're pretty good at authoritative assertions but I don't think that is the correct definition of regulate. From today's M-W: "to govern or direct according to rule." Of course, the originalist key would be the historic definition. I'm under the impression that it's historic definition was as broad or broader, but I don't have any 18th century dictionaries handy.

I think the power to "regulate" commerce goes beyond bringing order to commerce.
1.19.2008 8:53pm
Bart (mail):
frankcross (mail):

Bart, you're pretty good at authoritative assertions but I don't think that is the correct definition of regulate. From today's M-W: "to govern or direct according to rule."

The first line of the M-W entry merely offers the synonym "government" to help define the term regulate. However, this line does not state what is being governed. The second line of the M-W entry tells us what is being governed by stating that to regulate is "to bring order, method, or uniformity to" something. This is the source of my offered definition.

Think about this for a moment.

You can properly say: "The President commanded the Army to invade Iraq with five divisions on March 19, 2003." However, it is simply incorrect to say: "Congress regulated the Army to invade Iraq with five divisions on March 19, 2003." Regulate simply does not mean to command.

Of course, the originalist key would be the historic definition. I'm under the impression that it's historic definition was as broad or broader, but I don't have any 18th century dictionaries handy.

The application of the term regulate to troops has come up before in the Second Amendment context. The 1690 Oxford English Dictionary gives this definition of "regulated:" "(b) "Of troops: Properly disciplined."
1.19.2008 9:46pm
frankcross (mail):
No. They are two different definitions. It's not first line and second line. The first is the primary definition, the second, the secondary. The same is true of the OED.

The 1690 definition is something, though it also appears to be the second definition and is from a secondary source. The Constitution provides for the regulation of commerce. What do you think that means? I would presume it implies authority to govern or command. It has certainly been interpreted that way?

And your interpretation is quite odd -- surely it is the Executive that maintains discipline in the Army, a fairly ministerial task. Do you think the Constitution put Congress in charge of Boot Camp?
1.19.2008 11:26pm
MarkField (mail):

I think the power to "regulate" commerce goes beyond bringing order to commerce.


It was decided very early on (1807) that the power to regulate commerce includes the power to ban it completely. It also includes pretty much any other control. There may be disputes about what constitutes commerce, but there's very little about what Congress can do once we know that it IS commerce.
1.19.2008 11:50pm
Bart (mail):
frankcross (mail):

And your interpretation is quite odd -- surely it is the Executive that maintains discipline in the Army, a fairly ministerial task. Do you think the Constitution put Congress in charge of Boot Camp?

How is this odd?

Good order and discipline in the military requires a code of conduct to guide the soldiers the same way a criminal code guides civilian behavior. Enacting laws like the Uniform Code of Military Justice is a legislative task.

Enforcing good order and discipline through the UCMJ is indeed a ministerial task belonging to the CiC of the military and his subordinate officers.

I think the power to "regulate" commerce goes beyond bringing order to commerce...The Constitution provides for the regulation of commerce. What do you think that means? I would presume it implies authority to govern or command. It has certainly been interpreted that way?

This is an imperfect, but workable comparison to regulation of the military.

Similar to the military, regulating commerce is simply establishing a code of conduct to enforce order on trade.

And similar to the military, regulating commerce does not involve Congress commanding specific merchants to trade certain goods at a certain price at a certain time and place.
1.19.2008 11:54pm
Kazinski:
I think the regulating Commerce clause is an awfully good analogy. Congress is a deliberative body suitable for hashing out rules and regulations that are static. No one is really seriously going suggest that the founding fathers thought a body of politicians is the proper vehicle for exercising the decisive and dynamic nature of command.

As to the definition of regulate, think "regulations". A commander issues orders to the troops to attack, a commander does not issue regulations to his troops to attack.
1.20.2008 2:58am
PersonFromPorlock:
Bart:

However, it is simply incorrect to say: "Congress regulated the Army to invade Iraq with five divisions on March 19, 2003." Regulate simply does not mean to command.

Actually, Congress did exactly that, in reverse, to bring our part of the war in Southeast Asia to a close. The regulation in that case was that no further money would be spent for operations there.
1.20.2008 7:16am
Bart (mail):
PersonFromPorlock:

Bart: However, it is simply incorrect to say: "Congress regulated the Army to invade Iraq with five divisions on March 19, 2003." Regulate simply does not mean to command.

Actually, Congress did exactly that, in reverse, to bring our part of the war in Southeast Asia to a close. The regulation in that case was that no further money would be spent for operations there.


You have just identified the events which I dare say formed B&L's worldview on these matters.

The period between 1974 and 1980 saw the nadir of 20th Century executive power. Nixon's felonies had destroyed the political power of the Presidency. Concurrently, a radical left Congress was elected in 1974 which had no problem exerting power.

It was during this period when the Congress attempted to unconstitutionally exercise Executive CiC power for the first time in history by enacting legislation ordering the movement of troops, by enacting FISA directing the targets of foreign electronic intelligence gathering and a variety of other restrictions on the prosecution of war and intelligence gathering.

Mr. Bush's efforts over the past few years did not expand executive power to some new historical height. Rather, it has been a battle to reverse Congress' unconstitutional acts during the 70s and restore executive power to where it was prior to 1974.

Likewise, I would suggest that much of the academic backlash against Mr. Bush is by folks whose worldview was formed back in the 60s and 70s and who think that this period was a normal state of affairs, rather than the historical aberration that it was.
1.20.2008 10:51am
frankcross (mail):
Bart, it is quite clear that regulation of commerce does include regulating merchants trade of certain goods at a certain time and place. It allows the prohibition of trade in individual goods and the regulation of the circumstances of their sale.

I don't really disagree with you about the wisdom of congressional deference to Executive authority (although you left out one of the most egregious examples, the 1993 Somalia resolution, which suggests you are grinding biase ideological axes). But this is an example of the wisdom of the living Constitution, the Founders never anticipated circumstances like the present.

Take away the "regulate" issue, how about the power of the purse? I don't know of any serious constitutional scholar who thinks that the President can override congressional appropriations decisions, and that functionally gives Congress power over military operations. It could just defund them.
1.20.2008 12:41pm
Steve2:


As to the definition of regulate, think "regulations". A commander issues orders to the troops to attack, a commander does not issue regulations to his troops to attack.


But Kazinski, doesn't the commander have to follow the regulations that define what orders, under what conditions, he can give?


Roger Sherman: the Executive is "nothing more than an institution for carrying the will of the Legislature into effect."


Exactly. There's not three coequal branches, there's two coequal branches - Legislature and Judiciary - and a subordinate Executive branch to give effect to their decisions.
1.20.2008 1:35pm
Michael Edward McNeil (mail) (www):
Steve2 wrote:
Roger Sherman: the Executive is “nothing more than an institution for carrying the will of the Legislature into effect.”

Exactly. There’s not three coequal branches, there’s two coequal branches — Legislature and Judiciary — and a subordinate Executive branch to give effect to their decisions.



So the proponents of an all-powerful legislature would have it, in an attempt, as Tocqueville put it, to “take over the government.” And the aficionados of this view would also have us believe that the result would be ever so much fairer and more “democratic” as well as less likely to result in effective despotism and more likely to continue to allow the country to win its wars and overall keep us safer, right?

Just like the Prime Minister of the U.K. has been oh-so restrained in recent years as he chopped up and reconstituted the centuries-old counties system of Britain (the equivalent of states) without so much as a referendum by-your-leave, much less his basically abolishing (by a mere majority vote of the lower) the nation’s legislative upper house. In actuality the President of the United States — yes, even George W. Bush — wields much less power than the head minister of a parliamentary system of government.
1.20.2008 1:57pm
Bart (mail):
frankcross (mail):

Take away the "regulate" issue, how about the power of the purse? I don't know of any serious constitutional scholar who thinks that the President can override congressional appropriations decisions, and that functionally gives Congress power over military operations. It could just defund them.

You are correct. Congress has the power of the purse. If the Dems were willing to accept the political fallout, they could have defunded the Iraq War.

My point is that, just as Congress has plenary power over the purse which the Executive may not exercise, the President has plenary power over all executive and CiC power which Article I does not expressly grant to Congress.
1.20.2008 4:59pm
Bart (mail):
Roger Sherman:

the Executive is "nothing more than an institution for carrying the will of the Legislature into effect."

This view of the legislature was abandoned with the Articles of Confederation and the Confederacy.
1.20.2008 5:01pm
Anderson (mail):
I am more struck by Congress's power to "govern" the military than I am by its power to "regulate" it.

Governing the military certainly sounds like telling the military what to do and when to do it.

As c-in-c, the President is the officer charged with telling those below him what to do; but as the Porlockian suggested, he may as top dog still be subject to the government of Congress. Think of him as a 6-star general.
1.21.2008 12:21am
Adam J:
Bart- you're attempt to use the most restrictive definition of regulation borders on comical. Do you honestly believe that your definition is the type of regulation to which article refers? First, you should read the entire clause, it talks about making rules for the government, and making regulations for troops. It would be quite strange for these two powers to be placed into a single clause if regulation simply meant it was Congress' job to enforce discipline onto the troops- why would two completely different powers be placed in the same clause? Second, the clause says Congress should make regulations, and in that context it should be quite clear they are not talking about discipline. One does not "make" discipline, conversely one does "make" laws and rules. Also, maybe you are a bit confused, because the USMJ does not regulate or discipline troops, it creates the rules through which the Executive disciplines (or regulates if you prefer) troops. You're confusing the regulation (rules) with discipline (enforcement of these rules). Your argument that regulate merely means to enforce discipline seems quite flawed to me.
1.22.2008 2:47pm