Dr. Edwin Vieira, Jr., JD — The Constitution Limits the President Even as “Commander in Chief”
Dr. Edwin Vieira, Jr., Ph.D., J.D.
February 20, 2006
Amidst the flood of propaganda these days on behalf of what must be the most breathtaking expansion of Presidential power since Franklin Roosevelt’s New Deal, especially glaring are the assertions of self-styled “conservative” media personalities that nothing is amiss, because: (i) the President is “Commander in Chief;” (ii) in that capacity he supposedly enjoys “inherent” power to take whatever actions he may deem necessary to protect this country from “terrorism;” (iii) assertion of this Presidential power is especially vital now, with this country engaged in a “war on terror;” and (iv) in any event, Congress has broadly authorized the President to use “force” in “the war on terror.” None of these contentions can withstand even cursory scrutiny.
1. The Constitution does designate the President as “Commander in Chief.” Article II, Section 2, Clause 1. Not, however, as “Commander in Chief” of the country as a whole, with the plenary powers of some Fuhrer or Duce, but only as “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 will be explained below, in this capacity the President exercises, not some limitless “inherent” power, but largely a circumscribed and contingent authority dependent upon mandates from Congress.
2. Merely labeling some situation a “war” cannot call the President’s rightful powers as “Commander in Chief” into operation, let alone boundlessly expand those powers. The so-called “war on terror” is not the unique example of such martial political hyperbole bombarding this country today. Simultaneously, Americans are exhorted to acquiesce in enlarged governmental powers to fight “the war on crime,” “the war on drugs,” “the war on poverty,” and even “the war on obesity.” Does anyone believe, though, that under color of (say) waging a “war on obesity” the President could declare McDonald’s employees “enemy combatants” and its fatty foods “weapons of mass destruction,” could deploy the Armed Forces to occupy its restaurants, or could even tap its phones without submitting to judicial review?
Constitutionally speaking, “war” is a very specific set of legal relations between two or more independent nations. For the most obvious example, in an actual “war” soldiers of one nation may, within certain limits, intentionally kill soldiers of another nation without thereby being guilty of murder. Thus, according to strict constitutional logic, a “war on terror” is an existential impossibility–if only because “terror” is a tactic, not a country; and “terrorists” do not constitute one or more independent nations, but at most are mere bands of private criminals. True, a clandestine or irregular armed force of some nation could employ the tactics of “terrorists” on behalf of that nation. Then, however, any “war” would be waged against that nation as a whole, not against just the “terrorists” as individuals. Thus, not surprisingly, Congress has never exercised its constitutional power “[t]o declare War” to declare a “war on terror.” See Article I, Section 8, Clause 11.
Perhaps even more importantly, Congress has not declared “war” on Iraq, either, even though such a declaration would be formally possible, and notwithstanding that the President has launched an invasion of that independent nation, overthrown its once-legitimate (if obnoxious) government, occupied its territory, and imposed a new regime on its people. This absence of Congressional action is consequential, because only Congress has the power “[t]o declare War.” And the Constitution plainly understands that, absent such a declaration from the only source authorized to pronounce it, a “War” cannot be conducted legally by the United States.
That the Constitution entrusts the power………
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