Two Concepts of Commander-in-Chief

JB

Under the first theory, the Constitution's designation of the President's as Commander-in-Chief means that the military is and should be ultimately under the control of civilian government and its requirements of republican government and the rule of law. This idea is designed to head off the tendency in many countries that begin as democracies for the military increasingly to dominate civilian authority, eventually, in the limiting case, leading to overt military disobedience of civilian authority and military coups.

The Framers distrusted the idea of standing armies and feared the degeneration of democracies into dictatorships, a distrust that is evidenced in several features of the Constitution-- the requirement that army appropriations must be regularly renewed, the Second Amendment's right to bear arms (so as to counter an oppressive federal army) and civilian control of the military, as embodied in the idea of the President as Commander-in-Chief and Article I section 8's delegation to Congress of law making and appropriations power over military matters.

Implicit in the very notion of civilian control of the military is that the President is a civilian, not a military official; because the President would be subject to the rule of law (including Congressional regulations and appropriations under Article I, section 8), so too would be the military that the President directed.

The second conception of the President as Commander-in-Chief is that the President stands at the head of the armed forces of the United States and therefore that he is and should be entrusted with all important decisions regarding the conduct and use of the armed forces. Under this conception, Congress may not interfere with the President's use of the military (despite textual authority for doing so in Article I, section 8) because this would undermine or interfere with the Presidential chain of command. This idea is analogous to but not identical with the version of unitary executive theory that says that Congress may not regulate an expansive set of inherently executive functions.

The problem with the second conception of Commander-in-Chief is that it turns the Framers' principle of civilian control over the military on its head, realizing the Framers' fears in a different way. The danger now is not that the military will act independently and pressure the civilian government into capitulation but that the President will see the opportunity to use his position as head of the military to escape Congressional and judicial control; he will use control of the military and patriotic appeals to take the country into a series of misguided wars or to establish quasi-dictatorial powers.

Both scenarios are troublesome constitutionally. The Framers feared both Caesars-- military officials who bully republican forces and ultimately take over civilian government-- and monarchs-- who sit at the head of civilian government and use their power over the military to disregard legislative and judicial controls.

In order to secure civilian control of the military, the civilian authority that controls the military must *itself* be subject to legal controls by the other branches; otherwise it will be tempted to use its control over the military to dominate the remainder of civilian government. The President can dominate politics by emphasizing threats-- whether real or imagined-- to national security and by engaging the military in repeated wars, whether wise or unwise. The framers well understood that incompetent or vainglorious leaders have moved from one unwise military conflict to another in order to dominate the political agenda and maintain their political control. Because national security is the source of the President's political independence and rhetorical authority, Presidents who lack good judgment will be tempted to use that independence and that authority for all that they are worth. Such a President will increasingly identify the good of the nation with himself and with his ability to make decisions; he will castigate critics as unpatriotic or as undermining the military chain of command in time of war. This is Caesarism by a different route.

Thus, *precisely* because the President is Commander-in-Chief, and ultimately in control of the military, someone else in civilian government who is not under his control must be able to check his adventures and hold him accountable to law.

That is why the two different theories of "Commander-in-Chief" are inconsistent with each other. You can have the President exercise civilian control over the armed forces. (Theory one). And you can have the President effectively immune from Congressional control over how he uses the armed forces in his control. (Theory two). But you can't have both. Otherwise Presidents may use the military to maximize their political power and to minimize legal constraints on their actions. This lethal combination ultimately destroys republican government. In the alternative, the country may get an incompetent President who gets the country into disastrous and wasteful conflicts with no effective way to stop him. That tempts Congress to turn to the military to discipline or forestall the President, which ultimately undermines civilian control of the military. What the Congress gains by stopping a runaway President it loses by weakening the principle of civilian control in encouraging the military to act as a counterweight to the White House.

All this came to mind as I considered this despairing analysis by James Fallows, who is greatly worried that the Bush Administration may soon find an excuse to attack Iran:

If we could trust the Administration’s ability to judge America’s rational self-interest, there would be no need to constrain its threatening gestures toward Iran. Everyone would understand that this was part of the negotiation process; no one would worry that the Administration would finally take a step as self-destructive as beginning or inviting a war.

But no one can any longer trust the Administration to recognize and defend America’s rational self-interest — not when the President says he will carry out a policy even if opposed by everyone except his wife and dog, not when the Vice President refuses to concede any mistake or misjudgment in the handling of Iraq. According to the constitutional chain of command, those two men literally have the power to order a strike that would be disastrous for their nation. The Congress has no official way to prevent them from doing so — it is interesting, and alarming, to think that in practice the safety valve might be the professional military, trained to revere the chain of command but faced with what its members would recognize as ruinous instructions.

It is true that the President sometimes needs to make threats that he does not intend to carry out in order to be a credible bargainer on the international stage. But to do this he must also have credibility at home-- people have to trust that he will act reasonably and not get the country into a disastrous conflict-- as he has before-- and disregard wise counsel and recalcitrant evidence-- as he has before. The President must regain the trust of Congress before he can usefully engage in saber rattling. Until he does so, Congress must rein him in. The current Democratic strategy of nonbinding resolutions, I fear, will not be enough. They will be too easily disregarded. The Democrats have assumed that nonbinding resolutions will signal to the President that he is isolated politically. That will do nothing. This President already knows that he is isolated politically. He already knows that the public is against him and he plans to proceed in any case. Like any headstrong individual, this President needs to understand that there will be real consequences for not acting responsibly.

This Administration has undermined the constitutional system in general and the Presidency in particular. Executive discretion in a system of separated powers requires trust and confidence in the quality of executive leadership by the other branches and by the American people themselves. The Administration has been so insistent on maximizing executive authority through foolish decisions that it has destroyed those elements of trust and confidence. As a result, the other branches must now check the President. The Administration that sought to increase Presidential authority may well end up diminishing it.