When Called Into the Actual Service: The Restricted Role of the President as Commander in Chief

By Matthew Murrey

AHTC Summer Institute 2008

The Constitutional Convention

I have been looking forward to studying the creation of the US Constitution for the week of the July 2008 American History Teachers’ Collaborative session. For many years, but especially in the last seven, I often have wondered how one squares the role of the President as Commander in Chief with the revolutionary principles of the founders. In the last seven years, under the rubric of the “war on terror” the executive branch of the US government has sought to expand the powers of the President to unprecedented and - in my mind – unconstitutional proportions.

In a memo to the President on September 25, 2001, John Yoo, Deputy Assistant Attorney General in the Office of Legal Counsel, claimed Congress has no powers to place “any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.” (http://www.usdoj.gov/olc/warpowers925.htm.) Almost five years later, in January of 2006, the Justice Department, responding to reports of the President violating FISA laws, issued a 40-page paper which essentially claims the President is not bound by any laws if he determines that those laws interfere with his role as Commander in Chief during the “war on terror.” This white paper claims “The NSA [National Security Agency] activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States.” Furthermore the paper asserts that “Congress in the AUMF [Authorization for Use of Military Force, September 18, 2001] gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad”. (http://permanent.access.gpo.gov/lps66493/White%20Paper%20on%20NSA%20Legal%20Authorities.pdf).

Throughout this week of studying the origins of the US Constitution I have been listening and looking for evidence of how the framers envisioned the role of the President as Commander in Chief, and whether any of the framers were concerned with the kind of expansion of powers the current President has laid claim to as a wartime President.

I think it is fair to say the framers would be at least troubled by the current power of the executive branch. In her book, A Brilliant Solution, Carol Berkin again and again notes the one opinion that united all the delegates to the Convention of 1787 was a concern about power and “who would control its use” (p 45). As she states, “But no matter where power was concentrated in the new government, eighteenth-century republicans tended to fear that concentration” (p 73). The delegates were especially wary of the dangers of power in the hands of the chief executive: “But the delegates were eighteenth-century Americans, with eighteenth-century concerns about the abuse of power. In their minds, the executive – or the presidency as it would later be called – carried inherent possibilities for corruption” (p 83). Of course, one could cite a favorite author, a contemporary at that, to argue against the expansive powers of the executive branch. I wondered, “What exactly does the Constitution say about the President’s role as Commander in Chief and did proponents and opponents of the Constitution have anything of note to say about this between the time that it was being written and when it was ratified?”

Article II of the Constitution defines the executive branch of the US government. Article II, Sec. 2.1 spells out the relationship of the President to the armed forces:

“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….” It is a short but intriguing description. The phrase “called into the actual Service” begs explanation: is the President Commander in Chief anytime armed forces exist, only during specific missions, anytime a state of war exists, etc.?

One searches Madison’s notes on the Convention in vain for comment or debate on the Commander in Chief designation. One does notice in Madison’s notes of September 12, 1787, the draft of Constitution under consideration reads “The president shall be commander in chief of the army and navy of the United States, and of the militia of the several States” (http://www.yale.edu/lawweb/avalon/debates/912.htm). Significantly, the final draft submitted for ratification has the added clause “when called into the actual Service.” As it will become apparent, it is a difference that those arguing for the ratification of the Constitution were well aware of.

Opponents of the Constitution’s ratification were alarmed at the powers granted to the President. Collectively known as Anti-federalists, opponents of the Constitution published under pseudonyms a number of treatises against ratification. On November 1, 1787, in the Philadelphia Independent Gazetteer “An Old Whig” wrote: “In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous. To be the fountain of all honors in the United States, commander in chief of the army, navy and militia, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative upon all laws, unless two thirds of both houses shall persist in enacting it, and put their names down upon calling the yeas and nays for that purpose, is in reality to be a KING” <http://www.teachingamericanhistory.org/library/index.asp?document=1943>. A similar complaint was published under the pen name “Philadelphiensis” on April 9, 1788: “The writer of these essays has clearly proven, that the president is a King to all intents and purposes, and at the same time one of the most dangerous kind too—an elective King, the commander in chief of a standing army, &c.” <http://www.teachingamericanhistory.org/library/index.asp?document=2141>.

Alexander Hamilton, arguing for the Constitution in Federalist Paper No. 69, directly takes on the criticism of the President as Commander in Chief: “First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union.” One can see that for Hamilton the check on the President’s power as Commander in Chief of the militia is its “occasional” nature. It is not a permanent role, but exists only when “called into the actual service” <http://www.yale.edu/lawweb/avalon/federal/fed69.htm>. In Federalist Paper No. 74 this clause becomes his strongest argument against those who fear the power of the presidency: “THE President of the United States is to 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 propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it” <http://www.yale.edu/lawweb/avalon/federal/fed74.htm>. The emphases are Hamilton’s and it is plain he considered the “called into actual service” clause an absolute check against the President acting as a permanent Commander in Chief.

That the framers had such a limited notion of the President as Commander in Chief was new to me. I was especially surprised to find this idea espoused by Hamilton, who, as all our guest authors – Gordon Wood, David Stewart, and Carol Berkin – noted, was in favor of an extremely robust central government.

In today’s context, the role of Commander in Chief seems to define the Presidency. In the current campaign for President, attention is almost always centered on who is best qualified to serve as “Commander in Chief.” Given that since WWII our country has had a vast, permanent standing army and has been in virtual state of war (Cold War, proxy wars, and now the “war on terror), the fears of the Anti-federalists seem to have been justified. When I consider the claims of extralegality made in the Justice Department memos cited at the beginning of this paper, I fear for the health of our republic. It would be a beneficial check on executive authority if Article 2 were to be amended to place limits on the President’s role as Commander in Chief. Such limits might be a requirement that the President can assume the role only by a declaration of Congress, and it could not exceed a certain number of years (e.g. 2 or 4) without being extended by Congressional mandate. It would also be essential to explicitly note the powers of the Commander in Chief could not be construed in anyway to allow the violation of any federal laws, or international treaties. Such amendments would restore the balance of power between the legislative and executive branches that the founders clearly were hoping to establish. Unfortunately, the tradition of the “imperial Presidency” has gone on for so long that I do not hold out much hope any such checks on executive power will be forthcoming anytime soon.