Commander of the Armed Forces

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 2 2 issued orders for a general advance in the hopes of stimulating McClellan to action; Wilson in 7 8 settled the question of an independent American command on the Western Front; Truman in 10 5 ordered that the bomb be dropped on Hiroshima and Nagasaki.1 As against an enemy in the field, the President possesses all the powers which are accorded by international law to any supreme commander. “He may invade the hostile country, and subject it to the sovereignty and authority of the United States.” 2 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.3 He may employ secret agents to enter the enemy's lines and obtain information as to its strength, resources, and movements.4 He may, at least with the assent of Congress, authorize commercial intercourse with the enemy.5 He may also requisition property and compel services from American citizens and friendly aliens who are situated within the theater of military operations when necessity requires, thereby incurring for the United States the obligation to render “just compensation.” 6 By the same warrant, he may bring hostilities to a conclusion by arranging an armistice, stipulating conditions that may determine to a great extent the ensuing peace.7 He may not, however, effect a permanent acquisition of territory,8 though he may govern recently acquired territory until Congress sets up a more permanent regime.9

More about Commander of the Armed Forces

The President is the ultimate tribunal for the enforcement of the rules and regulations that Congress adopts for the government of the forces, and that are enforced through courts-martial.10 Indeed, until 1830, courts-martial were convened solely on the President's authority as Commander in Chief.11 Such rules and regulations are, moreover, it seems, subject in wartime to his amendment at discretion.12 Similarly, the power of Congress to “make rules for the government and regulation of the land and naval forces” (Art. I, § 8, cl. 14) did not prevent President Lincoln from promulgating, in April, 2 3, 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.13 One important power that the President lacks is 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.” 14 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 courtmartial or in mitigation thereof.” 15 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.16 The President's power of dismissal in time of war Congress has never attempted to limit.

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References

This text about Commander of the Armed Forces is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] For a review of how several wartime Presidents have operated in this sphere, see THE ULTIMATE DECISION: THE PRESIDENT AS COMMANDER IN CHIEF (E. May ed., 1960).

[Footnote 2] Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).

[Footnote 3] Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).

[Footnote 4] Totten v. United States, 92 U.S. 105 (1876).

[Footnote 5] Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1875); Haver v. Yaker, 76 U.S. (9 Wall.) 32 (1869).

[Footnote 6] Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1852); United States v. Russell, 80 U.S. (13 Wall.) 623 (1871); Totten v. United States, 92 U.S. 105 (1876); 40 Ops. Atty. Gen. 250, 253 (1942).

[Footnote 7] 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.

[Footnote 8] Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).

[Footnote 9] Santiago v. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, see Dooley v. United States, 182 U.S. 222, 230-31 (1901).

[Footnote 10] Swaim v. United States, 165 U.S. 553 (1897); and cases there reviewed. See also Givens v. Zerbst, 255 U.S. 11 (1921).

[Footnote 11] 15 Ops. Atty. Gen. 297, n; cf. 1 Ops. Atty. Gen. 233, 234, where the contrary view is stated by Attorney General Wirt.

[Footnote 12] Ex parte Quirin, 317 U.S. 1, 28-29 (1942).

[Footnote 13] General Orders, No. 100, Official Records, War Rebellion, ser. III, vol. III; April 24, 1863.

[Footnote 14] See, e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); United States v. Corson, 114 U.S. 619 (1885).

[Footnote 15] 10 U.S.C. § 804.

[Footnote 16] Mullan v. United States, 140 U.S. 240 (1891); Wallace v. United States, 257 U.S. 541 (1922).