On the Commander in Chief Power

David Luban

My article on the President’s commander in chief power has now been published in the Southern California Law Review, available here; it’s different (hopefully better) than the pre-print on SSRN. The aim of the paper is to understand the nature of the commander in chief power by looking at military history, U.S. founding era history, and the contemporary literature on civilian-military relations. The conclusion is that the commander in chief power should be understood to encompass a rather narrow set of powers to command and supervise the military, not the broad and uncircumscribed power that the Bush Administration has claimed.

The basic idea of the paper is similar to Jack’s post here. Historically, there are two very different reasons for fusing the top civilian leader and the military commander in chief. One reason is military efficiency: it’s to create an empowered warrior-executive who consolidates political authority with military expertise. The other is a separation of powers idea: it’s to head off possible military coups by placing a civilian at the top of the military chain of command. Of course, that creates problems of its own, notably that a civilian commander in chief might abuse his power domestically (think Caesar or Cromwell) or launch military adventures. But, assuming that those problems can be solved by a well-designed constitution, the point of the Commander in Chief Clause is to ensure civilian control of the military, not to create a warrior-king.

I call the first theory “consolidationist,” because it aims to consolidate civilian and military supremacy in a single fighting leader. It’s hardly unfamiliar: it was the prevailing theory in ancient heroic societies – the world depicted in epic poems like Gilgamesh and The Iliad, and (in real life) the world of Alexander the Great. As the military historian John Keegan puts it, military risk-taking legitimized rule. Consolidationism was also the prevailing theory in feudal Europe, where kings and nobles were supposed to display military prowess and honor, and where vassals exchanged loyalty for military protection.

The second theory is “separationist,” because it aims to set up institutional checks and balances against Caesarism; and – no surprise – it was the theory of the constitutional framers. Part of my paper shows how, beginning in the sixteenth and seventeenth centuries, the consolidationist theory began to erode. (Briefly: guns made it too easy to inflict a meaningless, unheroic death on fighting kings, so kings stopped leading the troops; and bigger states meant that kings needed to spend less time fighting and more time governing.) The last British king to lead troops in battle was George II in 1743.

A second part of the paper reviews the constitutional debates to show how the framers and ratifiers had all three of the classic separationist concerns (fear of military coups, fear that the civilian commander would abuse his military command, and fear of reckless military adventurism). Those separationist concerns are reflected in the Constitutional grant of Article I war powers, but also in the militia clauses and the second and third amendments.

Finally, with a tour through contemporary debates about civilian control of the military, the paper argues that the basic separationist concerns are still valid today (so, even if you’re not an originalist, you should still think of the civilian commander in chief the way the framers did). This part of the discussion focuses on contemporary theorists (Samuel Huntington, Peter Feaver, Eliot Cohen, Andrew Bacevic) and draws examples from the Vietnam and Iraq wars showing how dangerous it is for civilian leaders to think of themselves as warrior-executives.

One big difference between the consolidationist and separationist theories of the commander in chief power is that consolidationism offers institutional competence reasons for other branches of the government to defer to the president on military matters. It views the civilian commander in chief as a warrior-executive. Separationism offers just the opposite of an institutional competence argument: it emphasizes that the commander in chief is a civilian – a military amateur. Especially when the President claims commander in chief powers over matters that otherwise don’t look particularly military, other branches of government have no reason to defer to him. Think, for example, of the President’s initial assertion (later rebuffed by the courts) that he had unreviewable C-in-C authority to declare Jose Padilla an unlawful enemy combatant after having Padilla arrested in Chicago. As none other than Michael Mukasey argued at the time (Padilla v. Bush, 233 F.Supp.2d 564, 607-08 , page 95 here), deciding on the basis of evidence which legal pigeonhole a person belongs in is the classic institutional competence of a judge. Where Mukasey (the judge in Padilla’s case) erred was in going on to say that despite institutional competence, the President has the constitutional commission of making such calls.

This paper reaches many of the same conclusions as David Barron’s and Marty Lederman’s magnum opus on “the commander in chief at the lowest ebb,” available here and here. But the argument is different enough that I don’t think they’re redundant.



Posted 2:16 PM by David Luban [link]