Commander in Chief Means Less Than Presidents Claim and More Than Critics Say

Every president gets the same title in the Constitution, and every president, sooner or later, tries to wear it two sizes too large. The title is Commander in Chief. Read the way some of his lawyers read it, it means he may do anything with a soldier that he could do with a chess piece. Read the way some of his critics read it, it means he may do nothing until a committee finds its glasses.

Both readings are wrong, and I would like to show you why with the only evidence that should settle the matter: the words, the men who wrote them, and the way the republic actually behaved for its first century and a half.

The text, exactly

Article II, Section 2, Clause 1 begins:

The President shall be 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;

Look at what is there. The president commands the Army and Navy of the United States: forces that exist because Congress created them. The militia is his to command only "when called into the actual Service." Nothing in the clause says he may raise an army, declare a war, fund a campaign or decide that a conflict is a "police action." Those appear elsewhere, in Article I, Section 8, which gives Congress the powers "To declare War," "To raise and support Armies," "To provide and maintain a Navy," and "To make Rules for the Government and Regulation of the land and naval Forces."

So the structure is plain. Congress creates the forces, funds the forces, regulates the forces and decides whether the nation goes to war. The president directs them once they exist. That is a division of labour, and it is the whole design.

Three terms to define

Before the argument, three definitions, because most of the confusion lives in the words.

• Command is the authority to direct forces in the field: where they go, what they target, what tactics they use. It is operational and it belongs to the president.
• War power is the authority to decide whether the nation is at war, and to authorize the use of force beyond self-defense. The Constitution puts that in Congress.
• Sudden attack is an invasion or assault that does not wait for a vote. The Framers left the president room to meet it.

With those terms, the argument is easy to state.

The argument in five premises

1. The Framers knew what a king was. They had just fought one, and they wrote the Commander in Chief Clause to be narrower than his office.
2. Hamilton said so in print. In Federalist 69, Hamilton took the claim that the president would be a king and took it apart on this exact point.
3. The Convention deliberately moved the decision to begin war to Congress. Madison's notes show a change of one word that carried a whole philosophy.
4. The president keeps the power to repel sudden attacks. The Framers said so, and a nation that could not defend itself for the weeks Congress took to assemble would not remain a nation.
5. Everything between "repel" and "declare" is Congress's to authorize. That is where the modern fight lives, and it is where the president's lawyers push the hardest.

Let me take them in order.

Premise one and two: Federalist 69

In Federalist 69, Hamilton set out to calm the fear that the new president would be a monarch in republican dress. He took the powers of the British king, one by one, and compared them. On command of the army and navy he wrote that the president's authority "would be nominally the same with that of the king of Great Britain, but in substance much inferior to it." He went on to say that it "would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy," while the British king's authority "extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."

That passage should be taped to the inside of every White House counsel's desk. The man who defended the strongest executive in the Founding generation told the voters that the president would have supreme command and direction, and would not have the power to declare war or to raise armies, because those would belong to the legislature. If the clause had given the president the king's war power, Hamilton would have been making a false promise to the ratifying conventions. It is not plausible that the best lawyer in New York lied about the single clause on which the argument turned.

Premise three: the word that changed

On August 17, 1787, the Convention took up the power of Congress "to make war." Madison's notes record that Madison and Elbridge Gerry moved to insert "declare" in place of "make," leaving to the executive the power to repel sudden attacks. Roger Sherman of Connecticut said the executive should be able to repel and not to commence war. The motion carried.

Why does the change matter? Because "make war" could be read to include conducting war, which would have given the legislature the generals' work. Changing it to "declare" gave Congress the decision and left the conduct to the executive. And it did something else: it left a gap, a narrow one, in which the president could act without a declaration to meet an attack that would not wait.

That gap is the hinge of every later argument. The imperial view says the gap is as wide as the president's discretion. The restrictive view says it is as narrow as a landing on the beach. The text and the notes support something between the two.

The imperial view, stated fairly

Here is the strongest case for broad presidential power. The Constitution vests "the executive Power" in the president in Article II, Section 1. The Commander in Chief Clause is an addition to that executive power, and executive power in 1787, as understood from Locke and Montesquieu, included the conduct of foreign affairs and the management of force. Presidents from Jefferson on have used the Navy against pirates and the Army against Indian tribes and border incursions without a declaration. Modern threats are faster than eighteenth-century ones, so a president must act in hours, not weeks. And Congress has often acquiesced: it has funded the operations and said nothing.

That case is not stupid. It has real evidence behind it. Jefferson sent a squadron to the Mediterranean in 1801 against the Barbary states, and Congress later passed statutes authorizing action. Presidents have sent forces abroad for the protection of Americans and of commerce many dozens of times. The idea that every troop movement needs a vote has never been the practice of the republic.

Here is the answer.

1. Acquiescence is not authorization. When Congress funds an operation and says nothing, it may be tolerating it, and it may be avoiding a vote it would rather not cast. The Constitution asks for the vote.
2. Jefferson is a better example for the restrictive view than for the imperial. The record shows him treating the question as one for Congress when force went beyond defense, and Congress passed authorizing statutes for the Barbary wars.
3. Speed explains the repel power, not the declare power. A president may repel an attack in hours because the Framers left him that. That says nothing about a choice to attack a nation that has not attacked us. A planned operation against a state is not sudden. It is planned, which means there was time to go to Congress.
4. If the executive power clause swallowed the war power, Article I, Section 8 would be empty. A reading that makes a clause meaningless is not a reading. It is a repeal.

The restrictive view, stated fairly

Now the other side. The restrictive view says the president may do nothing beyond directing forces Congress has already authorized, except to repel an invasion of the homeland. Any use of force abroad, including limited strikes and rescue missions, needs a prior statute. The Framers feared executive wars, the argument goes, and "declare" was a deliberate brake. Modern presidents have turned a power to repel into a power to initiate, and the checks have collapsed.

The restrictive view is right about the danger and too tidy about the text. Here is the answer.

1. The Framers did not limit the president to the homeland. The notes speak of "sudden attacks," not attacks on the soil only. An attack on an American warship at sea, or on American forces abroad, is an attack on the nation's forces, and a commander in chief who stood still would be a spectator.
2. The Prize Cases (1863) accepted this. When the Confederacy fired on Fort Sumter, Lincoln acted before Congress met, and the Supreme Court upheld his blockade as a response to a war begun by others, saying the president need not wait for a formal declaration to meet an actual war. The case is told in The Prize Cases of 1863 and How Lincoln Fought a War Before Congress Met.
3. Rescue and protective missions have a long pedigree. The early republic used force to protect American ships and citizens without a declaration. A rule that forbids it all would be a rule almost no president, of any party, has followed, and it asks a clause to do more than a clause can.
4. The restrictive view has no answer to a true emergency. And a theory that cannot handle the emergency will be set aside in the first one, which discredits it for every other time.

So the position I would defend, and the one I think the text supports, is this. The president commands the forces Congress creates. He may use them to repel a sudden attack on the nation or its forces. He may direct them in the field without asking permission for each move. And when he wants to go beyond that, to begin or sustain hostilities against a nation or force that has not attacked us, he needs Congress.

Where the line moved: Korea

The turning point came in 1950. When North Korea invaded the South on June 25, President Truman committed American forces within days. He did not ask Congress for a declaration or an authorization. He relied on resolutions of the United Nations Security Council and on his own power as Commander in Chief, and he called the operation a "police action." The war lasted three years, cost American lives by the tens of thousands, and ended in an armistice, with no declaration at any stage.

The political consequence was large. In a striking departure, a president took the country into a major sustained war on the strength of an international body's resolution and his own constitutional office, and the Congress, with some objections from Senator Robert Taft and others, mostly let it happen. Taft objected that the president should have come to Congress before sending troops to Korea, and he lost the argument in practice if not in principle. The precedent was set.

The second consequence came two years later. In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Court held that Truman could not seize the steel mills to keep war production going, and Justice Jackson's concurrence set out the framework still used today: presidential power is at its highest when he acts with congressional authorization, in a "zone of twilight" when Congress is silent, and at its lowest when he acts against the will of Congress. That story is in Youngstown Sheet and Tube Is the Case That Tells a President No in Wartime. Note the irony. Truman could send men to die in Korea without a vote and could not take over a steel mill without a statute. Property, it turned out, was better protected than lives.

The War Powers Resolution, and why it did not fix it

After Vietnam, Congress passed the War Powers Resolution of 1973 over President Nixon's veto. It requires the president to consult Congress before introducing forces into hostilities where possible, to report within 48 hours, and to withdraw forces after 60 days unless Congress authorizes the action or extends the period. Every president since has said the law's limits are unconstitutional in some part, and every president has complied with the reporting requirement in form while contesting the rest.

The Resolution has two weaknesses. First, it starts a clock the executive can dispute, and a clock without an enforcement mechanism is a decoration. Second, it implicitly concedes that the president may introduce forces into hostilities for sixty days without a vote, which is far more than the "sudden attack" authority in the notes. A conservative who loves the text should say plainly that the Resolution is an imperfect statute written in a hurry, and that the real answer is for Congress to use its own powers: to vote, to authorize in specific terms, and to cut off funds when it disagrees. The story of the last is told in How Congress Ended a War with the Purse, the Case-Church Story of 1973.

A test you can use at the kitchen table

If you want a rule of thumb, here is one.

• If American forces or citizens are under attack, or an attack is imminent and cannot wait, the president may act, and Congress should be told at once.
• If the president is directing an operation Congress has authorized, he commands it, and Congress may not micromanage the tactics. Congress's job is the objective, the money and the oversight.
• If the president wants to begin or continue a war of choice, he needs Congress. That is the lesson of the word "declare," and it applies whether the commander in chief belongs to your party or the other.

That last clause is the part conservatives should say out loud. The power you are willing to give a president whose judgment you trust is the power you are giving the next one. It is a bad habit of political tribes to discover constitutional limits only when the other side holds the office. The Constitution does not have a version for each party.

What it means for the Pentagon and for families

A great deal rides on this. The Pentagon plans for contingencies, and officers swear an oath to the Constitution, not to a man. They are owed a clear chain of command and a clear authorization. When the line is blurry, the cost lands on those in uniform, who may be sent into harm's way under a legal theory that a later Congress or court may reject. And the families who wait at home are owed a reason that has been argued in public and voted on by people who must face them.

Seen that way, the question is not partisan, and it is not academic. The clause that makes a president Commander in Chief is a grant of command, bounded by Congress's grants of the forces, the money and the war power. It means less than the broadest claims of the executive branch, and it means more than its critics concede.

For the roots of the debate in the Founding's attitude to foreign adventures, see What Washington's Farewell Address Really Said About Foreign Entanglements and Letters of Marque Are Still in the Constitution and Here Is Why They Matter. For the modern authority that still carries so much weight, see Sixty Words Passed in 2001 Still Carry America's Wars, and That Is a Problem.

The case in brief

1. Article II, Section 2 makes the president Commander in Chief of forces that Congress raises, funds and regulates under Article I, Section 8.
2. Federalist 69 told the ratifiers that the president's authority would be "nothing more than the supreme command and direction" of the forces, and that declaring war and raising armies would belong to the legislature.
3. On August 17, 1787, the Convention changed "make war" to "declare war," leaving the president the power to repel sudden attacks and nothing more.
4. The imperial view overreads the executive power clause, and the restrictive view underreads the repel power; the Prize Cases and the practice of the early republic mark the middle.
5. Korea made the president's unilateral war a precedent, and the War Powers Resolution did not fix it. Only Congress can, by using its powers of authorization and funding.

What you can do: look up your own senators' votes on the most recent war powers or use-of-force measure on Congress.gov, and write to them asking whether they think the president may start a war of choice without a vote.