The Constitution of the United States of America: Analysis and Interpretation / Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952

by Unknown

HISTORICAL

The purely military aspects of the Commander in Chiefship were those which were originally stressed. Hamilton said the office "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."[45] Story wrote in his Commentaries: "The propriety of admitting the president to be commander in chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it. The consent of both houses of Congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the president might, there was no necessity that he should, take the command in person; and there was no probability that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents."[46] In 1850 Chief Justice Taney, for the Court, said: "His [the President's] duty and his power are purely military. As commander in chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. * * * But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question."[47] Even after the Civil War a powerful minority of the Court described the role of President as Commander in Chief simply as "the command of the forces and the conduct of campaigns."[48]

THE PRIZE CASES

The basis for a broader conception was laid in certain early acts of Congress authorizing the President to employ military force in the execution of the laws.[49] In his famous message to Congress of July 4, 1861,[50] Lincoln advanced the claim that the "war power" was his for the purpose of suppressing rebellion; and in the Prize Cases[51] of 1863, a sharply divided Court sustained this theory. The immediate issue of the case was the validity of the blockade which the President, following the attack on Fort Sumter, had proclaimed of the Southern ports.[52] The argument was advanced that a blockade to be valid must be an incident of a "public war" validly declared, and that only Congress could, by virtue of its power "to declare war," constitutionally impart to a military situation this character and scope. Speaking for the majority of the Court, Justice Grier answered: "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be 'unilateral.' Lord Stowell (1 Dodson, 247) observes, 'It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.' The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the act of Congress of May 13, 1846, which recognized 'a state of war as existing by the act of the Republic of Mexico.' This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress. This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact. * * * Whether the President in fulfilling his duties, as Commander in Chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. 'He must determine what degree of force the crisis demands.' The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case."[53]

IMPACT OF THE PRIZE CASES ON WORLD WARS I AND II

In brief, the powers claimable for the President under the Commander in Chief clause at a time of wide-spread insurrection were equated with his powers under the clause at a time when the United States is engaged in a formally declared foreign war; and—impliedly—vice versa. And since Lincoln performed various acts especially in the early months of the Civil War which, like increasing the Army and Navy, admittedly fell within the constitutional province of Congress, it seems to have been assumed during World War I and World War II that the Commander in Chiefship carries with it the power to exercise like powers practically at discretion; and not merely in wartime but even at a time when war becomes a strong possibility. Nor was any attention given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly did,[54] with the exception of his suspension of the habeas corpus privilege which was regarded by many as attributable to the President in the situation then existing, by virtue of his duty to take care that the laws be faithfully executed.[55] Nor is this the only respect in which war or the approach of war operates to enlarge the scope of power which is claimable by the President as Commander in Chief in wartime.[56] For at such time the maxim that Congress may not delegate its powers is, by the doctrine of the Curtiss-Wright case,[57] in a state of suspended animation.[58]

PRESIDENTIAL THEORY OF THE COMMANDER IN CHIEFSHIP IN WORLD WAR II

In his message of September 7, 1942 to Congress, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th,[59] the late President Roosevelt formulated his conception of his powers as "Commander in Chief in wartime" as follows:

"I ask the Congress to take this action by the first of October. Inaction on your part by that date will leave me with an inescapable responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos.

"In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.