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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

The Power of Congress to Control the President’s Discretion.— Over the President’s veto, Congress enacted the War Powers Resolution,167 designed to redistribute the war powers between the President and Congress. Although ambiguous in some respects, the Resolution appears to define restrictively the President’s powers, to[p.452]require him to report fully to Congress upon the introduction of troops into foreign areas, to specify a maximum time limitation on the engagement of hostilities absent affirmative congressional action, and to provide a means for Congress to require cessation of hostilities in advance of the time set. The Resolution states that the President’s power to commit United States troops into hostilities, or into situations of imminent involvement in hostilities, is limited to instances of (1) a declaration of war, (2) a specific statutory authorization, or (3) a national emergency created by an attack on the United States, its territories or possessions, or its armed forces.168 In the absence of a declaration of war, a President must within 48 hours report to Congress whenever he introduces troops (1) into hostilities or situations of imminent hostilities, (2) into a foreign nation while equipped for combat, except in certain nonhostile situations, or (3) in numbers which substantially enlarge United States troops equipped for combat already located in a foreign nation.169 The President is required to terminate the use of troops in the reported situation within 60 days of reporting, unless Congress (1) has declared war, (2) has extended the period, or (3) is unable to meet as a result of an attack on the United States, but the period can be extended another 30 days by the President’s certification to Congress of unavoidable military necessity respecting the safety of the troops.170 Congress may through the passage of a concurrent resolution require the President to remove the troops sooner.171 The Resolution further states that no legislation, whether enacted prior to or subsequent to passage of the Resolution will be taken to empower the President to use troops abroad unless the legislation specifically does so and that no treaty may so empower the President unless it is supplemented by implementing legislation specifically addressed to the issue.172

Aside from its use as a rhetorical device, the Resolution has been of little worth in reordering presidential–congressional relations in the years since its enactment. All Presidents operating under it have expressly or implicitly considered it to be an unconstitutional infringement on presidential powers, and on each occasion of use abroad of United States troops the President in reporting to Congress has done so “consistent[ly] with” the reporting sec[p.453]tion but not pursuant to the provision.173 Upon the invasion of Kuwait by Iraqi troops in 1990, President Bush sought not congressional authorization but a United Nations Security Council resolution authorizing the use of force by member Nations. Only at the last moment did the President seek authorization from Congress, he and his officials contending he had the power to act unilaterally.174 Congress after intensive debate voted, 250 to 183 in the House of Representatives and 53 to 46 in the Senate, to authorize the President to use United States troops pursuant to the U. N. resolution and purporting to bring the act within the context of the War Powers Resolution.175

Although there is recurrent talk within Congress and without with regard to amending the War Powers Resolution to strengthen it, no consensus has emerged, and there is little evidence that there exists within Congress the resolve to exercise the responsibility concomitant with strengthening it.176

The President as Commander of the Armed Forces

While the President customarily delegates supreme command of the forces in active service, there is no constitutional reason why he should do so, and he has been known to resolve personally important questions of military policy. Lincoln early in 1862 issued orders for a general advance in the hopes of stimulating McClellan to action; Wilson in 1918 settled the question of an independent American command on the Western Front; Truman in 1945 ordered that the bomb be dropped on Hiroshima and Nagasaki.177 As against an enemy in the field, the President possesses all the powers which are accorded by international law to any supreme com[p.454]mander. “He may invade the hostile country, and subject it to the sovereignty and authority of the United States.”178 In the absence of attempts by Congress to limit his power, he may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his authority to do this sometimes survives cessation of hostilities.179 He may employ secret agents to enter the enemy’s lines and obtain information as to its strength, resources, and movements.180 He may, at least with the assent of Congress, authorize intercourse with the enemy.181 He may also requisition property and compel services from American citizens and friendly aliens who are situated within the theatre of military operations when necessity requires, thereby incurring for the United States the obligation to render “just compensation.”182 By the same warrant, he may bring hostilities to a conclusion by arranging an armistice, stipulating conditions which may determine to a great extent the ensuing peace.183 He may not, however, affect a permanent acquisition of territory,184 though he may govern recently acquired territory until Congress sets up a more permanent regime.185

He is the ultimate tribunal for the enforcement of the rules and regulations which Congress adopts for the government of the forces, and which are enforced through courts–martial.186 Indeed, until 1830, courts–martial were convened solely on his authority as Commander–in– Chief.187 Such rules and regulations are, moreover, it would seem, subject in wartime to his amendment at discretion.188 Similarly, the power of Congress to “make rules for the government and regulation of the land and naval forces” (Art. I, Sec. 8, cl. 14) did not prevent President Lincoln from promulgating in[p.455]April, 1863, a code of rules to govern the conduct in the field of the armies of the United States which was prepared at his instance by a commission headed by Francis Lieber and which later became the basis of all similar codifications both here and abroad.189 One important power he lacks, that of choosing his subordinates, whose grades and qualifications are determined by Congress and whose appointment is ordinarily made by and with the advice and consent of the Senate, though undoubtedly Congress could if it wished vest their appointment in “the President alone.”190 Also, the President’s power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal “in pursuance of the sentence of a general court–martial or in mitigation thereof.”191 But the provision is not regarded by the Court as preventing the President from displacing an officer of the Army or Navy by appointing with the advice and consent of the Senate another person in his place.192 The President’s power of dismissal in time of war Congress has never attempted to limit.

The Commander–in–Chief a Civilian Officer.—Is the Commander–in– Chiefship a military or civilian office in the contemplation of the Constitution? Unquestionably the latter. An opinion by a New York surrogate deals adequately, though not authoritatively, with the subject: “The President receives his compensation for his services, rendered as Chief Executive of the Nation, not for the individual parts of his duties. No part of his compensation is paid from sums appropriated for the military or naval forces; and it is equally clear under the Constitution that the President’s duties as Commander in Chief represents only a part of duties ex officio as Chief Executive [Article II, sections 2 and 3 of the Constitution] and that the latter’s office is a civil office. [Article II, section 1 of the Constitution; vol. 91, Cong. Rec. 4910–4916; Beard, The Republic (1943) pp. 100–103.] The President does not enlist in, and he is not inducted or drafted into, the armed forces. Nor, is he subject to court–martial or other military discipline. On the contrary, Article II, section 4 of the Constitution provides that ‘The President, [Vice President] and All Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery or other high Crimes and Misdemeanors.’ . . . The last two War Presidents, President Wilson and President Roosevelt,[p.456]both clearly recognized the civilian nature of the President’s position as Commander in Chief. President Roosevelt, in his Navy Day Campaign speech at Shibe Park, Philadelphia, on October 27, 1944, pronounced this principle as follows:—‘It was due to no accident and no oversight that the framers of our Constitution put the command of our armed forces under civilian authority. It is the duty of the Commander in Chief to appoint the Secretaries of War and Navy and the Chiefs of Staff.’ It is also to be noted that the Secretary of War, who is the regularly constituted organ of the President for the administration of the military establishment of the Nation, has been held by the Supreme Court of the United States to be merely a civilian officer, not in military service. (United States v. Burns, 79 U.S. 246 (1871)). On the general principle of civilian supremacy over the military, by virtue of the Constitution, it has recently been said: ‘The supremacy of the civil over the military is one of our great heritages.’ Duncan v. Kahanamoku, 324 U.S. 833 (1945), 14 L.W. 4205 at page 4210.”193


Footnotes

167 P.L. 93–148, 87 Stat. 555 , 50 U.S.C. §§ 1541 –1548. For the congressional intent and explanation, see H. Rept. No. 93–287, S. Rept. No. 93–220, and H. Rept. No. 93–547 (Conference Report), all 93d Congress, 1st sess. (1973). The President’s veto message is H. Doc. No. 93–171, 93d Congress. 1st sess. (1973). All this material is collected in The War Powers Resolution—Relevant Documents, Reports, Correspondence, House Committee on Foreign Affairs, 103d Cong., 2d sess. (Comm. Print) (GPO: 1994), 1–46. For a narrative account of passage and an assessment of the disputed compliance to date, from the congressional point of view, see The War Powers Resolution, A Special Study of the House Committee on Foreign Affairs, 102d Cong., 2d sess. (Comm. Print) (GPO: 1982).
168 87 Stat. 554, 2 (c), 50 U.S.C. Sec. 1541 (c).
169 Id., Sec. 1543(a).
170 Id., Sec. 1544(b).
171 Id., Sec. 1544(c). It is the general consensus that, following INS v. Chadha, 462 U.S. 919 (1983), this provision of the Resolution is unconstitutional.
172 Id., 50 U.S.C. Sec. 1547 (a).
173 See the text of the reports in The War Powers Resolution— Relevant Documents, Reports, Correspondence, op. cit., n.167, 47 (Pres. Ford on transport of refugees from Danang), 55 (Pres. Carter on attempted rescue of Iranian hostages), 73 (Pres. Reagan on use of troops in Lebanon), 113 (Pres. Reagan on Grenada), 144 (Pres. Bush on Panama), 147, 149 (Pres. Bush on Persian Gulf), 189 (Pres. Bush on Somalia), 262 (Pres. Clinton on Haiti).
174 See Hearings on Crisis in the Persian Gulf Region: U. S. Policy Options and Implications, Senate Committee on Armed Services, 101st Cong., 2d sess. (1990), 701 (Secretary Chaney) (President did not require “any additional authorization from the Congress” before attacking Iraq). On the day following his request for supporting legislation from Congress, President Bush, in answer to a question about the requested action, stated: “I don’t think I need it. . . . I feel that I have the authority to fully implement the United Nations resolutions.” 27 Wkly. Comp. Pres. Doc. 25 (Jan. 8, 1991).
175 P. L. 102–1, 105 Stat. 3 .
176 See, on proposals to amend and on congressional responsibility, J. Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (Princeton: 1993).
177 For a review of how several wartime Presidents have operated in this sphere, see E. May (ed.), The Ultimate Decision—The President as Commander in Chief (New York: 1960).
178 Fleming v. Page, 9 How. (50 U.S.) 603, 615 (1850).
179 Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).
180 Totten v. United States, 92 U.S. 105 (1876).
181 Hamilton v. Dillin, 21 Wall. (88 U.S.) 73 (1875); Haver v. Yaker, 9 Wall. (76 U.S.) 32 (1869).
182 Mitchell v. Harmony, 13 How. (54 U.S.) 115 (1852); United States v. Russell, 13 Wall. (80 U.S.) 623 (1871); Totten v. United States, 92 U.S. 105 (1876); 40 Atty. Gen.250,253 (1942).
183 Cf. the Protocol of August 12, 1898, which largely foreshadowed the Peace of Paris, 30 Stat. 1742 and President Wilson’s Fourteen Points, which were incorporated in the Armistice of November 11, 1918.
184 Fleming v. Page, 9 How. (50 U.S.) 603, 615 (1850).
185 Santiago v. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, see Dooley v. United States, 182 U.S. 222, 230–231 (1901).
186 Swaim v. United States, 165 U.S. 553 (1897); and cases there reviewed. See also Givens v. Zerbst, 255 U.S. 11 (1921).
187 15 Ops. Atty. Gen. 297, n; cf. 1 Ops. Atty. Gen. 233, 234, where the contrary view is stated by Attorney General Wirt.
188 Ex parte Quirin, 317 U.S. 1, 28–29 (1942).
189 General Orders, No. 100, Official Records, War Rebellion, ser. III, vol. III; April 24, 1863.
190 See, e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); United States v. Corson, 114 U.S. 619 (1885).
191 10 U.S.C. Sec. 804 .
192 Mullan v. United States, 140 U.S. 240 (1891); Wallace v. United States, 257 U.S. 541 (1922).
193 Surrogate’s Court, Duchess County, New York, ruling July 25, 1950, that the estate of Franklin D. Roosevelt was not entitled to tax benefits under sections 421 and 939 of the Internal Revenue Code, which extends certain tax benefits to persons dying in the military services of the United States. New York Times, July 26, 1950, p. 27, col. 1.
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