Commander in Chief Clause

Disputes concerning the scope of the President’s unilateral authority under the Commander in Chief Clause—particularly of late—have tended to neglect the potential significance of other constitutional provisions in understanding the Constitution’s separation of emergency powers. Perhaps no provision has been more neglected in this discourse than the so-called “Calling Forth” Clause of Article I, which empowers Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” As Justice Jackson explained in his Steel Seizure concurrence,  

Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.

And yet, except as it pertains to debates over the original understanding of the Second Amendment and the authority to deploy National Guard units overseas, Congress’s constitutional power to provide for the use of the militia during these three types of domestic crises has been overlooked in almost every contemporary assessment of the President’s inherent war powers, to the point where scholars too numerous to count have accepted without qualification the argument that the President possesses at least some independent authority to use military force in domestic emergencies—assuming that such power derives, most naturally, from the Commander in Chief Clause.

In fact, since 1792, Congress has provided specific statutory authorization for military deployments in the cases contemplated by the Calling Forth Clause, first through the militia (which President Washington called forth to help put down the Whiskey Rebellion) and subsequently through the “regular” federal army (as the unreliability of the militia became increasingly clear). And even in the Prize Cases (1863), in which the Supreme Court famously recognized the President’s power to repel sudden attacks, it attributed at least some of that authority not to the Commander in Chief Clause, but to these statutes, by which “he is authorized to call[] out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.” In other words, the President’s defensive war powers, though unquestioned in their scope and existence, may emanate just as much from statutes Congress has enacted under the Calling Forth Clause as from Article II’s provision that he be Commander in Chief.

The more interesting question is why the Calling Forth Clause has disappeared from our modern view of how the Constitution separates war powers. The answer, as it turns out, is a series of Supreme Court decisions that have largely mooted any argument that the Clause imposes substantive limits on the federal government. Thus, in a pair of 1918 Supreme Court rulings—the Selective Draft Law Cases and Cox v. Wood—the Justices concluded that the Calling Forth Clause does not in fact limit the circumstances in which the government may call out the militia, upholding the constitutionality of a draft designed to recruit soldiers to fight in World War I, a purely foreign conflict. Thus, although the Framers may well have intended the Calling Forth Clause both to cement the militia’s exclusive role in responding to domestic emergencies and to prevent their federalization for other purposes, the 1918 decisions largely vitiated that structural reading by concluding that the militia could also be called forth to fight in foreign wars.

More recently, in Perpich v. Department of Defense (1990), the Supreme Court held that members of the National Guard are, for constitutional purposes, federal regulars when called into the active service of the United States—and, like the militia in the 1918 cases, may therefore be deployed for purposes other than those outlined in the Calling Forth Clause. Perpich therefore suggests that, at least under the Guard’s dual enlistment system, the Calling Forth Clause is effectively a non-starter; the constitutional text simply doesn’t matter because there is virtually no situation today when the “militia,” at least as the Supreme Court has interpreted the term, is actually being “called forth,” and federal regulars may be called forth even in those contexts in which the Calling Forth Clause might otherwise have been read to require utilization of the militia.

But whereas the Supreme Court has largely vitiated the Calling Forth Clause’s potential role as a structural check on other uses of military power, the Clause remains relevant today in helping to cement Congress’s constitutional authority to circumscribe the President’s domestic war powers—authority it has exercised in a number of circumstances, including through the Posse Comitatus Act of 1878, which requires express authorization from Congress before the military may be utilized in a domestic law enforcement capacity. After all, if the militia was initially intended to be the primary (if not exclusive) response force for a domestic emergency, and if Congress was given the power to provide for their calling forth (and, through the other Militia Clause, their regulation), then the Constitution appears to resolve in Congress’s favor any argument that such statutory limitations unconstitutionally infringe upon the President's constitutional authority as Commander in Chief.

So construed, the Calling Forth Clause undermines the ever-more-visible arguments in favor of strong and unilateral domestic presidential war powers. Of course, there can simply be no question that the Constitution empowers the federal government, acting in concert, to act decisively—and expeditiously—during domestic emergencies; the Constitution, after all, “is not a suicide pact.” But it is not nearly as straight a line from accepting that point to accepting a sweeping and potentially preclusive domestic Commander in Chief power. To the contrary, the reality is that the Constitution expressly envisions a role for Congress to play in providing for governmental responses to even the most existential crises at home, however lost to modern eyes. This dramatically undermines arguments evoking a broad and unilateral authority for the Commander in Chief in the circumstances contemplated by the Calling Forth Clause, i.e., “to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

If the United States undertakes military operations, either by authorization from Congress or under the President’s independent powers, the Constitution makes the President Commander in Chief of all U.S. military forces, and Congress cannot give command to any other person. But can Congress itself direct how the President exercises that command by requiring or prohibiting certain military actions?

Scholarly opinion is sharply divided on this question. One view, principally associated with Professor John Yoo, holds that attempts by Congress to control the military contrary to the President’s desires infringe the Commander in Chief Clause by in effect depriving the President of the full ability to give commands. An opposing view, developed by Professor Saikrishna Prakash in a series of articles and an important 2015 book on executive power, sees Congress as having complete power over the military through various clauses of Article I, Section 8, with the President’s substantive command authority operating only where Congress has not provided specific direction.

Both views seem to overstate. Contrary to the first view, the Constitution expressly gives Congress significant power over the military. Most notably, Congress has power to “make Rules for the Government and Regulation of the land and naval Forces.” Nothing in the Constitution requires these “Rules” to be consistent with the President’s desires (although of course the President can resist them using the veto power). Further, Congress has a long history of regulating the military, including the articles of war (precursor of the modern Uniform Code of Military Justice) enacted in the immediate post-ratification period. Thus, for example, rules regarding how prisoners are to be treated, whether civilians may be targeted and how intelligence may be gathered by the military seem fully within Congress’s enumerated power. If the President’s Commander in Chief power overrode these rules, the Government-and-Regulation Clause would seem almost meaningless. In addition, Congress’s power to declare war likely includes power to set wartime goals and to limit a war’s scope. Prior to the Constitution, other nations routinely issued goal-setting declarations and fought limited wars. And Congress’s power to define the scope of a war seems confirmed by Congress’s statutory limits on the 1798 Quasi-War with France and by the Supreme Court’s approval of those limits in Bas v. Tingy (1800) and Little v. Barreme (1804).

However, contrary to the second view, the Constitution’s enumeration of Congress’s specific military powers indicates that Congress does not have plenary authority over military operations. In particular, although Congress can make general rules regarding military conduct and can define wartime objectives, it lacks enumerated power to direct battlefield operations—a point demonstrated by examining Congress’s powers under the Articles of Confederation.

In contrast to the Constitution, the Articles gave Congress the powers of “making rules for the government and regulation of the said land and naval forces, and of directing their operations” (emphasis added). The former power is carried over directly into the Constitution’s list of congressional powers, but the latter is not. This strongly suggests that Congress’s Government-and-Regulation power does not include power to “direct [military] operations.”

The brief war powers debate at the Philadelphia Convention confirms that this omission was intentional and substantive. As is well known, the Convention’s draft at one point gave Congress the power to “make” war. James Madison proposed changing this to “declare” war— principally, he said, to leave the President with power to repel sudden attacks. Rufus King of Massachusetts then made a related point: “that ‘make’ war might be understood to ‘conduct’ it which was an Executive function.” The Convention adopted the proposed change, suggesting that the delegates did not want Congress to have the power to “conduct” war.

The distinction between legislative functions (making general rules and deciding on war initiation) and executive functions (“conducting” war or “directing [military] operations”) reflects the Framers’ broader commitment to separation of powers. As Alexander Hamilton explained in The Federalist No. 74,

[T]he direction of war 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.

Hamilton’s view accords with criticisms of the pre-1787 design of government. The national government prior to the Constitution lacked separation of powers, combining legislative and executive power in a single multi-member entity, and it was thought defective on that ground. Among other perceived problems, Congress meddled in the tactical direction of the Revolutionary War. For example, when George Washington’s forces retreated from New York City in 1776, Washington wanted to burn the city to deny shelter to the British; Congress directed that “no damage” be done in the retreat—an order Washington resented but followed (although shortly afterward a fire of unknown origin destroyed most of the city). Federalist No. 74 likely had this problem in mind in calling for “directing . . .  the common strength” by a single person.

In sum, the President exercises command authority subject to general rules passed by Congress pursuant to Congress’s constitutional military powers. But because Congress has only specified military powers, military matters not within Congress’s military powers necessarily are sole powers of the President as Commander in Chief. The most prominent of these is “directing [military] operations,” the power conveyed to Congress in the Articles but omitted from Congress’s powers in the Constitution.

To be sure, it may often be difficult to draw a clear line between legislative “Rules” for the conduct of the military, on one hand, and executive “direction” of military operations on the other. But in general, the former power encompasses creating standing directions and punishments that broadly control behavior of the military (such as the articles of war, the Uniform Code of Military Justice, or statutes such as the War Crimes Act); the latter power refers to contingent orders made in response to developments in battles and campaigns. Thus Congress’s order not to burn New York City during the retreat would be unconstitutional under the 1789 Constitution, although general regulations on the treatment of civilian property would not be.