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 latitutde 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 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."

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. *" 12 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." 13 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.' ,, 14 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.'

15

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.”

This interpretation of the command authority of the President was reiterated in 1939 by a Federal District Court in Nordmann v. Woodring, 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." 17

The President's powers include the power to establish rules and regulations for the government of the Army. In United States v.

11 (1952) S. Ct. 863, at pp. 874-875.

12 The Federalist, No. 69.

13 The Constitution and What It Means Today (9th Ed.), Princeton, 1947, p. 93.

Fleming v. Page (1850) 9 How. 602, at p. 615.

15 Ex parte Milligan 1866 4 Wall. 2, at p. 139.

19 (1895) 157 U.S. 281, at p. 284.

17 (1939) 28 F. Supp. 573, at p. 576.

Eliason, the Supreme Court said that "the power of the Executive to establish rules and regulations for the government of the Army is undoubted." 18 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." 19

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." 20

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.21

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.22

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." 23

In his capacity as Commander in Chief, it was visualized that the President would give orders and generally superintend the Army and Navy; however, "it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it." 24 The only instance in which the Commander in Chief actually exercised direct command in the field was Washington during the Whiskey Rebellion in 1794.

At times, Presidents have delegated supreme command of the forces in active service. At other times, they have personally exercised

18 (1842) 16 Pet. 291, at p. 301.

19 Little v. Barreme (1804) 2 Cr. 170.

20 McBlair t. U.S. (1849) 19 Ct. Cls. 528, at p. 543, see also, The Flying Fish (1814) 6 U.S. 170.

21 (1893) 28 Ct. Cls. 173, at p. 221; affirmed (1897) 165 U.S. 553.

22 The Theory of the War Power Under the Constitution, 60 American Law Review (1926) 31, p. 60. 23 Ibid., p. 58.

24 Story, Commentaries, 1492.

command. In 1862, Lincoln ordered a general advance in the hope of stimulating General McClellan to action. In 1945, Truman ordered use of the atomic bomb against Japan. With the growing requirement for close coordination of diplomatic and military undertakings in the post World War II period, Presidents have tended to exert increasing control over military operations, especially in the conduct of the war in Vietnam.

C. NATURE OF THE CONGRESSIONAL POWER TO DECLARE WAR

According to the Constitution, the power to declare war rests solely in the Congress.

As the Supreme Court said in U.S. v. Macintosh

The Constitution *** wisely contemplating the ever-present possibility of war, declares that one of its purposes is to "provide for the common defense." In express terms Congress is empowered "to declare war," which necessarily connotes the plenary power to wage war with all the force necessary to make it effective; and "to raise * * * armies," which necessarily connotes the like power to say who shall serve in them and in what way.25

However, while the Congress has the power to declare war, the President as Commander in Chief has the power to make war in the sense of conducting it. This is indicated by the debates in the Constitutional Convention on the question of vesting in Congress the power "to make war":

Mr. Pinkney opposed the vesting this power in the legislature. Its proceedings were too slow ***

Mr. Butler *** He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.

Mr. M (adison) and Mr. Gerry moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.

Mr. Sharman thought it stood very well. The Executive shd. be able to repel and not to commence war. "Make" better than "declare" the latter narrowing the power too much.26

The word "make" was changed to "declare," and in a Harvard Law Review article, it is concluded that:

At most, the sole reason for the substitution was to confirm the Executive's power "to repel sudden attacks." In all other cases the commitment of the country to a trial of force with another nation was to remain the prerogative of Congress.27

Giving further evidence of the intent of the framers, a letter written by Thomas Jefferson to Madison in 1789 stated:

We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.20

28

W. Taylor Reveley's comments on the Constitutional Convention conclude that;

(1930) U.S. 605, at p. 622.

Ferrand, Max, ed. The Records of the Federal Convention of 1787 vol. II. New Haven, Yale University Press, 1966. pp. 318-319.

"Harvard Law Review, op. cit., p. 1773. In Madison's notes on the Constitutional Convention, a footnote was added to Connecticut's dissenting vote on the motion to change "make" war to "declare":

On the remark by Mr. King that "make" war might be understood to "conduct" it which was an Executive function, Mr. Elseworth gave up his objection (and the vote of Cont. [Connecticut] was changed to-ay). Max Ferrand, ed., op. cit., p. 319.

The Harvard Law Review article notes that "At least one delegate, Mr. Elseworth, changed his vote when it was pointed out that 'make war' might be construed to give Congress power to 'conduct war' after it had begun a function clearly meant to be given to the Executive." Emphasis added, p. 1773, footnote 16. "Boyd, Jules, ed. The Papers of Thomas Jefferson, Princeton, Princeton University Press, 1955, v. 15, p. 397.

It seems reasonably clear *** that the Drafters intended decisions regarding the initiation of force abroad to be made not by the President alone, not by the Senate alone, nor by the President and the Senate, but by the entire Congress subject to the signature or veto of the President. The Framers recognized the potentially momentous consequences of foreign conflict and wished to check its unilateral initiation by any single individual or group. Madison expressed this concern early in the Constitutional Convention: "A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them [wars] on the whole." Foreign conflicts, since they involve the entire nation, are to be begun only after both legislative houses and the Executive have been heard, even at the cost of some delay in reaching a decision.29

In a legal memorandum prepared by the State Department in 1966, Leonard Meeker translates the intent of the framers regarding repulse of a sudden attack into a different context today:

In 1787 the world was a far larger place, and the framers probably had in mind attacks upon the United States. In the 20th century, the world has grown much smaller. An attack on a country far from our shores can impinge directly on the nation's security. *** The Constitution leaves to the President the judgment to determine whether the circumstances of a particular armed attack are so urgent and the potential consequences so threatening to the security of the United States that he should act without formally consulting the Congress.30

More recently, Assistant Attorney General William Rehnquist commented on the Constitutional Convention in a speech on the constitutionality of the President's actions in Cambodia:

An examination of the proceedings of the Constitutional Convention . . indicates that the framers did not intend to precisely delimit the boundary between the power of the Executive Branch and that of the Legislative Branch. While rejecting the traditional power of kings to commit unwilling nations to war, they at the same time recognized the need for quick Executive response to rapidly developing international situations.31

The Senate Foreign Relations Committee report on the National Commitments Resolution of 1969 granted the President's constitutional powers to "repel sudden attacks" against the United States:

A careful study of the Constitution and of the intent of the framers as set forth in the extensive documentation which they bequeathed to us leaves not the slightest doubt that, except for repelling sudden attacks on the United States, the founders of our country intended decisions to initiate either general or limited hostilities against foreign countries to be made by the Congress, not by the Executive.32

But the Committee did not approve of the extension of Presidential power to the defense of other countries. The report cited a previous Committee report on the North Atlantic Treaty, to illustrate the congressional interpretation of the constitutional considerations under the Treaty's provisions:

*** Would the United States be obligated to react to an attack on Paris or Copenhagen in the same way it would react to an attack on New York City? In such an event does the treaty give the President the power to take any action without specific congressional authorization which he could not take in the absence of the treaty? The answer to both of these questions is “No.”

29 Reveley W. Taylor, III. Presidential War-Making: Constitutional Prerogative or Usurpation? Virginia Law Review v. 55, November 1969, p. 1284. In a footnote to this passage, Reveley explains:

In short, an attempt was made to devise a scheme in which war would be entered upon only after measured deliberation, thus avoiding involvement in conflicts where the costs, upon reflection, appeared to outweigh the gains, or where the primary "gains" would be executive aggrandizement or the satiation of popular passion. These checks were intended to insure that the fighting would be supported by most Americans, thus avoiding disastrous internecine struggle within the country over war policy. 30 Meeker, Leonard C., op. cit. pp. 484-85.

31 Rehnquist, William H., Assistant Attorney General, Office of the Legal Counsel, Department of Justice. "The President's Constitutional Authority to Order the Attack on the Cambodian Sanctuaries." Remarks before the Association of the Bar of the City of New York, May 28, 1970, p. 3.

32 U.S. Congress. Senate. Committee on Foreign Relations. National Commitments. Report, April 16, 1969. 91st Cong., 1st sess. No. 91-129. Washington. U.S. Govt. Print. Off., 1969. pp. 30-31.

The Committee report on the North Atlantic Treaty also stated:

* The Committee does not believe it appropriate in this report to undertake to define the authority of the President to use the armed forces. Nothing in the treaty, however, including the provision that an attack against one shall be considered an attack against all, increases or decreases the constitutional powers of either the President or the Congress or changes the relationship between them. The report on the commitments resolution added the following comments:

There seems to have been general agreement that the *** postwar security treaties did not change the relative powers of Congress and the President with respect to the use of the armed forces. There was little agreement, however, on what exactly those relative powers were *** because, as the trend toward executive control accelerated, constitutional considerations were neglected and the de facto power of the President came to be accepted as a constitutional power. 33 IV. PRECEDENTS IN THE USE OF FORCES BEYOND THE NATIONAL BOUNDARY

The power of the President as Commander in Chief has been exercised on many occasions-sometimes under a declaration of war, sometimes with other types of Congressional authorization or support, and sometimes without Congressional sanction.

Authorities differ on the number of instances in which American troops have been landed abroad for the protection of American interests. A State Department list of armed actions taken by the United States without a declaration of war shows a total of 137 such actions. In his doctoral thesis, "The United States Congress and the Power to Use Military Force Abroad," Robert William Russell compiled a list of the uses of American military force abroad from 1789-1967, which has 144 entries. The author assigns no numbers to the incidents, however, and gives no totals, "because the figures would be meaningless without further analysis." The differences in numbers between these lists, and between them and others, reflect differences in individual interpretations. The State Department list, for example, does not include either the Bay of Pigs or the Cuban missile crisis, which are included in the Russell compilation. Yet the State Department has an entry for armed action in Laos in 1964-65, which is missing from the Russell list. Appendix I of this report represents a judgment as to which U.S. armed interventions overseas represented major military actions. It is divided into actions which were declared wars and those which were unaccompanied by a formal declaration of war, for which relevant congressional action is noted. Appendix II is a comprehensive list of all such military actions, both major and minor, drawn from a number of sources.

The number of troops involved in these incidents of the application of military force varies greatly. They range from a few sailors or marines landed to protect American lives and property, to hundreds of thousands in Vietnam and to millions in World War II. Most applications of force were of short duration, although some, like Korea or Vietnam, lasted a number of years. Those undertaken at Presidential initiative were often backed up by subsequent congressional action. Some of

33 Ibid, p. 47.

Armed Actions Taken by the United States Without A Declaration of War, 1789-1967. Research Project 806A. Historical Studies Division, Historical Office, Bureau of Public Affairs, Department of State. August, 1967. 30 pp.