Constitution

Article II, Section 2: Commander in Chief, Treaties and Appointments

Section 2 makes the President commander in chief, gives him the pardon power, and shares treaty-making and appointments with the Senate.

4Conservative Editors · Published November 8, 2026

The text

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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

In plain English

Clause 1: commander in chief and opinions. The President commands the Army and Navy and the state militias when called into federal service. He may require written opinions from the heads of executive departments, the textual root of the Cabinet. He may grant "Reprieves and Pardons for Offences against the United States," except in impeachment cases.

Clause 2: treaties and appointments. The President makes treaties with the "Advice and Consent" of two-thirds of senators present. He nominates, and with the Senate's consent appoints, ambassadors, Supreme Court justices and "all other Officers of the United States" whose appointment is not otherwise provided for. Congress may vest the appointment of "inferior Officers" in the President alone, in the courts or in department heads.

Clause 3: recess appointments. When the Senate is in recess, the President may fill vacancies by commissions that expire at the end of the Senate's next session.

Congress, not the President, declares war (Article I, Section 8), and Congress funds the military. The President's role as commander in chief is to direct the forces once raised.

What the Founders said

Hamilton described the commander-in-chief power in Federalist No. 69 as "nominally the same with that of the king of Great Britain, but in substance much inferior to it," amounting "to nothing more than the supreme command and direction of the military and naval forces." The power to declare war, raise armies and make rules for the forces, he noted, belonged in Britain to the king but here to the legislature.

On the pardon, Hamilton argued in Federalist No. 74 that "humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed." He excluded impeachment because otherwise a President might shield the officials he had himself directed.

Federalist No. 75 defended the treaty clause, preferring joint action to either branch alone, and No. 76 explained that the Senate's role in appointments would act as a check on favoritism and unfit choices.

How the courts have read it

  • Ex parte Garland (1867): the pardon power is broad, extending to every offense against the United States, and can be used before or after conviction.
  • Ex parte Milligan (1866) and Ex parte Quirin (1942): limits and allowances for military justice in wartime.
  • Youngstown Sheet & Tube Co. v. Sawyer (1952): the commander in chief clause did not authorize seizure of private steel mills during the Korean War.
  • Myers v. United States (1926): the power to appoint carries the power to remove.
  • Morrison v. Olson (1988): the independent counsel was an "inferior Officer" Congress could vest in a court; Justice Scalia dissented.
  • Edmond v. United States (1997): inferior officers are those whose work is directed and supervised by principal officers.
  • NLRB v. Noel Canning (2014): the Senate's pro forma sessions meant it was not in recess; a recess shorter than ten days is presumptively too short for recess appointments.
  • Trump v. United States (2024): the pardon power and other core presidential powers are conclusive and preclusive.

Why it matters now

This section shows why the Founders thought of the executive as a separate, accountable branch while still sharing its weightiest powers with the Senate. Treaties require two-thirds of the Senate; senior appointments require a majority. The President cannot appoint a judge or Cabinet officer alone, and the shared power encourages broader consent.

In practice, the lines have blurred. Presidents conduct wars without declarations, make "executive agreements" in place of treaties, and appoint "acting" officials who are never confirmed. Each development has defenders and critics, but all raise the same constitutional question: who is responsible, and to whom?

The pardon power is among the broadest in the document and is almost unreviewable. That breadth reflects trust in a single accountable official to temper justice. It also means that the principal check on its abuse is political, the verdict of voters and of Congress. A reader who dislikes a particular pardon, whichever party issued it, should note that this is where the Constitution places the remedy.

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