Civil-Military Relationship: The President as Commander in Chief in a Comparative Constitutional Perspective

Abstract

This paper aims at conducting a doctrinal analysis of the constitutional power of the president as Commander in Chief in a comparative perspective with reference to US and French law. The comparative analysis focuses on the descriptive question of the scope of the presidential war powers and explores, in context, its normative implications in terms of the challenges that it poses for democratic governance. The comparative law method is justified here. Both systems entrust the president with quite remarkable powers vis-a-vis the military in countries which are known for the prominent rank of their armed forces – in the world, as regards the US Armed Forces, and in Europe, as regards the French Armed Forces – as well as the reactivity of the political decision-making process in defence affairs. The comparative study will provide critical insights into the constitutional power of the president as Commander in Chief. It will argue that such power has been exercised at its fullest in both jurisdictions and that both constitutional systems have favoured the executive branch as ‘the pre-eminent decision-maker in matters of war’ thereby reflecting an assumed normative choice of efficiency (linked to the executive branch) over accountability (linked legislative branch). However, the exercise of the Commander in Chief power has seemingly been more coherently justified in the French case given the foundations of the Fifth Republic in comparison with the US case where there has been no consistent practice by the political branch and no satisfactory doctrinal justification in that regard. In any case, the exercise of the constitutional power of the president as Commander in Chief has been somehow difficult to reconcile with basic constitutional and political principles in a liberal democracy thereby calling for better scrutiny mechanisms especially in a renewed CMR context. The paper proceeds in several stages. The first part gives a preliminary account of the main features of the armed forces in their composition and structure in both the USA and France. The second part considers relevant elements of CMR theory which underlie the position of the political power vis-a-vis the military. In a third part, I critically analyse the constitutional foundations of the Commander in Chief Clause in both jurisdictions and in particular how the scholarly debate has pitched the difficulties in constitutional interpretation of the Clause in that regard. In a fourth part, I explain how political and institutional practice has shaped the exercise of the Commander in Chief power towards an undeniable, albeit problematic, presidential pre-eminence in this area. The paper concludes with observations about the need to normalise certain aspects of the role, notably in keeping it under democratic checks.