Sunday, June 22, 2008

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.


Typo in post title.

What you haven't quite mentioned here is that the American Constitution was based in large part on an idealized version of the Roman constitution. The CinC powers in Rome were split between two consuls, and therefore the US Constitution had to be twice as careful to restrict the ability of a president to wage wars unsupervised. In Rome the right to declare war was vested in the people. The Framers transfered that to Congress presumably in large part because they thought Congress would be much more jealous of that power and therefore more careful than the people might be to circumscribe the president's activities.

Also worth pointing out that the Framers did not envisage permanent armies. They expected that just as the Roman consuls did, the CinC would raise armies for specific campaigns.

it's an impressive analysis prof. luban .. i've only found one small irregularity .. on page 67 you state " if the president centralizes decision making in herself [sic]"

wishful thinking perhaps .. :)

i strongly recommend to all a full reading of the whole 95 pages and notes ...

(a minor request from this commenter)

If you recall House is suing some members of the Cheney/Bush administration in federal courts for not responding to their subpoenas. The issue is rather weighty as the current and future ability of the Congress to fullfill its constitutional duties hinges on it.

It is also not very clear-cut, the Department moved to dismiss on grounds which appear to this layman honestly argued for change. (one of the few benefits of having Mukasey not Yoo there, I guess).

I can only envision some poor "schmuck" of the federal judge sitting there cursing his bad luck. Deciding a case so pregnant with constitutional consequences and with so little out there to support oneself with. The last thing anybody would want to deal with!

So how come there appears to be nothing coming from legal academia. Not even a seminar or symposium! Not even a blog entry for all I know!

I find this a bit puzzling because somebody complained on these pages some time ago about poor morale of legal "professoriat" due to its relative insignificance compared to the federal judiciary. Well there is nothing you can do about their powers, they have it, feudal like, you don't, but you are always free to attempt to force intellectual parametres for the deliberation of the issue which is a power of sorts. So why not use it?

responsibility even I may add!

wg- the contempt case is scheduled to be argued tomorrow. I agree with you that there hasn't been much commentary, which is surprising given the potential ramifications. I have blogged some on the standing question at It is a difficult case, although for reasons that I have tried to explain, I have come to the conclusion that DOJ must be wrong on standing.

if i were congress .. i'd exercise my perogative and simply zero out funding for those positions in the executive which can't testify for the purpose of proper oversight ..

no access .. no funding ..

Jkat said...

it's an impressive analysis prof. luban .. i've only found one small irregularity .. on page 67 you state " if the president centralizes decision making in herself [sic]"

Thanks for the kind words. As you gather, the pronoun choice was deliberate - at the time I was preparing the final draft, it was entirely possible that the next president would be female, and I thought it important to remind readers that leadership isn't just a guy thing.

The military command power was centralized in the President for the purposes of military efficiency. However, that efficiency is more to have a single military commander rather than the joinder of civilian executive and military command authority. The military is not a debating society and requires the agility of a single decision maker.

The Constitution attempts to check Caesarism not so much by dispersing the President's military command power between the elected branches, but primarily by putting Congress in charge of declaring and funding war as well as raising the armies for war. The Founders envisioned a country reliant upon the militia for defense and without a large standing army.

However, after WWII, Congress maintained our first large standing Army and has proven itself unwilling to enforce its powers to declare war or to defund wars. Thus, the primary checks on Presidential military authority are gone.

The solution is not for Congress to unconstitutionally attempt to reduce the President's CiC power, but rather to exercise its own Article I powers. If the Dem Congress wants to stop the Iraq War, provide money for transportation home and defund the operational accounts. No Presidential veto can force Congress to take the affirmative action of appropriating war funding. The problem here is not a lack of constitutional power, but a lack of political will power because Congress fears that the voters will punish them for losing a war.

oh horsehocky .. this was a war of liberation .. or so we're told .. and we deposed saddam .. the iraqis established a constitution ..and held elections .. there's nothing to "lose" except our status as the occupiers of a now sovereign state .. they've been handed their freedom ..what they choose to do with it is their business .. thsi old canard about "losing the war" is purely nonsensical .. there's no one to "lose to" ..

I don't agree with Bart on the scope of presidential war powers (he thinks that the President's powers are plenary except when there is a specific grant of congressional power; I think the grants of power to Congress create a structure not much different from the domestic sphere where the President can act freely but only within the limits set by Congress). However, Bart is absolutely correct that the framers envisioned that Congress would use its appropriations power to stop any unpopular military actions, and that Congress has ceded that power over the years because they don't want to take political responsibility for military failures (it actually started well before WW2 though).

I'm a Canadian and know something, but not as much as I should, about the US Constitution. I'm saying that because I have a question and I hope it sounds just ignorant rather than troll-ish.

How come the Republicans, like Bush, Cheney et al, who supposedly hate the idea of powerful central government having too much control over too many lives and who seem generally suspicious of government, have enabled one branch of government to easily circumvent the Constitution? I understand that there is room for debate about the extent of the powers of each branch, but even before Nixon's shenanigans prompted the Congress to curtail the concentration of power that had developed in the Executive Branch, did other Presidents seek to usurp (perjorative I know but I can't think of another word) so much unchecked power unto themselves?

Hesperis: The short answer is 'yes'. Presidents have always pushed executive power over the power of Congress. The Barron-Lederman articles that I linked in my post demonstrate this in great detail. The current wave of pro-executive push really began with the Truman administration in the early 1950s.

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