Article II, section 2, specifies that:

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 * * *

The role of the President as the representative of the Nation in foreign relations was enunciated by the Supreme Court in 1936 in United States v. Curtiss-Wright Export Corporation. The Court said:

Not only, as we have shown, is the Federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate, and manifold problems, the President alone has the power to speak or listen as a representative of the Nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the Nation in its external relations, and its sole representative with foreign nations” (Annals, 6th Cong., column 613).o

The powers of Congress primarily concerned with foreign affairs are the following, found in article I, section 8, of the Constitution:

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; * * *

To borrow money on the credit of the United States;

To regulate Commerce with Foreign Nations, * * *

To establish a uniform Rule of Naturalization, * *

To coin Money, regulate the Value thereof, and of Foreign Coin, * * *

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, * **

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Article I, section 9, provides that—

No money shall be drawn from the treasury but in consequence of appropriations made by law.***

In addition to these legislative powers, the Senate participates in the treaty-making process and the appointment power.

All of these powers give the Congress a considerable voice in the determination of foreign policy and defense policy and the actions taken in support of them. Congress enacts the laws for the President to execute, it raises and supports the armies of which the President is Commander in Chief; in it, through the "power of the purse," rests a vast and extensive power to determine the scale of government structure and staffing.

Thus, in the fields of foreign affairs and national defense, as in other fields of governmental activity, many powers are shared by or divided

6299 U.S. 304, pp. 319-320.

between the executive and legislative branches. It is evident from the enumeration of executive and legislative powers that both branches have a constitutional voice in the major decisions affecting the country's foreign relations and military defense.

Edward S. Corwin has written:

What the Constitution does, and all that it does, is to confer upon the President certain powers capable of affecting our foreign relations, and certain other powers of the same general nature upon the Senate, and still other such powers upon Congress; but which of these organs shall have the decisive and final voice in determining the course of the American nation is left for events to resolve.

All of which amounts to saying that the Constitution, considered only for its affirmative grants of power which are capable of affecting the issue, is an invitation to struggle for the privilege of directing American foreign policy. In such a struggle the President has, it is true, certain great advantages, which are pointed out by Jay in The Federalist; the unity of the office, its capacity for secrecy and dispatch and its superior sources of information; to which should be added the fact that it is always on hand and ready for action, whereas the houses of Congress are in adjournment much of the time.

But despite all this, actual practice under the Constitution has shown that while the President is usually in a position to propose, the Senate and Congress are often in a technical position at least to dispose. The verdict of history, in short, is that the power to determine the substantive content of American foreign policy is a divided power, with the lion's share falling usually to the President, though by no means always.'

In the areas in which the powers relating to foreign policy are shared by Congress and the President and in which considerable conflict has developed, such as the sending of troops abroad, the issues have not been resolved by judicial decisions.

They have generally been considered political questions and left for the President, Congress, the people, and the course of events to resolve. In the words of one authority: 8

It is not within the province of the courts to inquire into the policy underlying action taken by the "political departments"-Congress and the President— in the exercise of their conceded powers. The commonplace maxim is, however, sometimes given an enlarged application so as to embrace questions as to the existence of facts and even questions of law which the Court would normally regard as falling within its jurisdiction. Such questions are termed "political questions," and are especially common in the field of foreign relations. The leading case is Foster v. Neilson, where the matter in dispute was the validity of a grant made by the Spanish Government in 1804 of land lying to the east of the Mississippi River, and in which there was also raised the question whether the region between the Perdido and Mississippi Rivers belonged in 1804 to Spain or the United States.

Chief Justice Marshall held that the Court was bound by the action of the political departments, the President and Congress, in claiming the land for the United States. He said: "If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this, respecting the boundaries of nations, is, as has been truly said, more a political than legal question, and in its discussion, the courts of every country must respect the pronounced will of the legislature.

In Baker v. Carr Justice Brennan said:

Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably

7 Corwin,op. cit., p. 171.

8 U.S. Congress. Senate. The Constitution of the United States of America. Analysis and Interpretation. S. Doc. 92-82. Washington, U.S. Govt. Print. Off., 1973. p. 328. (Hereinafter cited as Annotated Constitution.)

to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action."

In Youngstown Sheet and Tube Company v. Sawyer, Justice Jackson wrote the following description of the practical aspects of the sharing of power between Congress and the President: 10

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequence of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power * * *.

2. When the President acts in absence of either congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

B. NATURE OF THE PRESIDENT'S POWER AS COMMANDER IN CHIEF Of particular relevance to the issue of sending troops abroad is the role of the President as Commander in Chief. As previously noted, under Article II, section 2 of the Constitution, "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." The nature of the President's power, as Commander in Chief, over the armed forces of the United States has been variously defined by the courts and students of constitutional law.

The Constitution confers the office of Commander in Chief on the President, who nevertheless remains a civilian. While his powers as Commander in Chief are directed toward the military, the President is a civil officer.11 In the case of Youngstown Sheet and Tube Co. v. Sawyer, Mr. Justice Jackson expands upon the significance of this provi

sion:

Baker v. Carr. 369 U.S. 186 (1962).

10 343 U.S. 635-638 (1952).

11 Annotated Constitution, op. cit., p. 466.

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There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commanderin-Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the "Government and Regulation of land and naval forces," by which it may to some unknown extent impinge upon even command functions.

*** We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander-in-Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. *** His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative of Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment.12

Originally, it was only the military aspects of the Commander in Chief role that were stressed. This provision of the Constitution was interpreted as simply placing the President at the top of the pyramid of military command. 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. ***" The authority of the President as Commander in Chief to repel a sudden attack or to prosecute a war after it is declared, is unchallenged, an intent of the framers which the drafting history of the Constitution makes clear. According to E. S. Corwin, "the power of the President as Commander in Chief is primarily that of military command in wartime, and as such, includes * * * all the power allowed a military commander in such cases by the Law of Nations." 14

In 1850, Justice Taney said that 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." 15 Despite the broader conception of the Commander in Chief role which emerged from 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." 16

As the Supreme Court said in United States v. Sweeny, the object of the Commander in Chief clause "is to vest in the President the supreme command over all the military forces-such supreme and undivided command as would be necessary to the prosecution of a successful war." 17

This interpretation of the command authority of the President was reiterated in 1939 by a Federal District Court in Nordmann v. Wood

12 343 U.S. 643-646 (1952).

13 The Federalist, No. 69

14 The Constitution and What It Means Today (9th Ed.), Princeton, 1947, p. 93. 15 Fleming v. Page, 9 How. 602, 615 (1850).

10 Er parte Milligan, 4 Wall. 2, 139 (1866).

17 157 U.S. 284 (1895).

ring, wherein it was stated that "the President has the power to employ the Army and the Navy in a manner which he may deem most effectual. This includes the power to establish rules and regulations for the government of the Army and the Navy and such regulations made pursuant to the authority thus conferred upon the President have the force of law." 18

The President's powers include the power to establish rules and regulations for the government of the Army. In United States v. Eliason, the Supreme Court said that "the power of the Executive to establish rules and regulations for the government of the Army is undoubted." 19 In 1863, President Lincoln directed the issuance by the War Department of General Order 100, setting forth a code of rules to govern the conduct in the field of the armies of the United States during the Civil War. However, the President's power "must be exercised in accordance with the laws and usages of nations, and in conformity with acts of Congress, where the legislature possesses regulatory power; otherwise his order will afford no protection to an officer acting under them." 20

In defining the powers of the President as Commander in Chief, the courts have recognized that these powers must be understood within a constitutional and legal framework that takes into account the enumerated powers of the Congress. "Congress has the right to legislate for the Army, not impairing his efficiency as such Commander in Chief, and when a law is passed for the regulation of the Army, having that constitutional qualification, he becomes as to that law an executive officer, and is limited in the discharge of his duty by the statute." 21

Similarly, in Swaim v. U.S., the Court declared as follows:

*** there remains the significant fact in our military system that the President is always the Commander in Chief. Congress may increase the Army, or reduce the Army, or abolish it altogether; but so long as we have a military force Congress cannot take away from the President the supreme command. It is true that the Constitution has conferred upon Congress the exclusive power "to make rules for the government and regulation of the land and naval forces"; but the two powers are distinct; neither can trench upon the other; the President cannot under the disguise of military orders, evade the legislative regulations by which he in common with the Army must be governed; and Congress cannot in the disguise of "rules for the government" of the Army impair the authority of the President as Commander in Chief.22

As observed by Professor F. R. Black:

Congress itself cannot direct the conduct of campaigns. It cannot delegate that power to any person or persons. It can legislate relative to the size of the Army and Navy, the compensation of officers and men, the term of service as well as many matters, but the command of the Army and Navy, and with that the plan of campaign, is vested in the President."

In sum, "there are no express limitations on the President's power as Commander in Chief of the Army and Navy." But the framers of the Constitution "gave him no Army or Navy to Command. For this, he must come to Congress.

24

In his capacity as Commander in Chief, it was visualized that the President would give orders and generally superintend the Army and

18 28 F. Supp. 576 (1939).

19 16 Pet. 291, 301 (1842).

20 Little v. Barreme, 2 CR 170 (1804).

21 McBlair v. U.S., 19 Ct. Cls. 528, 543 (1849); see also, The Flying Fish, 6 U.S. 170 (1814).

22 28 Ct. Cls. 173, 221 (1893); affirmed 165 U.S. 553 (1897).

23 The Theory of the War Power Under the Constitution, 60 American Law Review 31. 60 (1926).

24 Ibid., p. 58.