Parsing the Commander in Chief Power: Three Distinctions

Abstract

The panel was convened at 2:45 p.m., Friday, March 31, by its chair, Curtis Bradley of Duke University of Law, who introduced the panelists: David Golove of the New York University School of Law; John Harrison of the University of Virginia School of Law; Thomas Hemingway of the Office of Military Commissions; and Deborah Pearlstein of Human Rights First. * PARSING THE COMMANDER IN CHIEF POWER: THREE DISTINCTIONS As Justice Jackson noted in the Youngstown steel seizure case, the Commander in Chief Clause has given rise to some of the most persistent controversies in our constitutional history. (1) That clause is being invoked by the executive branch in connection with a number of contemporary controversies, including the military detention of suspected terrorists, the use of military commissions to try terrorists, and the National Security Agency's post-September 11th program of warrantless surveillance. In considering the powers of the commander in chief in these contexts, it is useful to keep in mind several distinctions: between the President's statutory and constitutional authority; between the President's inherent and exclusive constitutional authority; and between international law as an external limitation and international law as an internal limitation on the President. First is the distinction between the President's statutory authority and his constitutional authority. When Congress has granted the President the authority to carry out a war-related activity, courts are likely to defer to the combined judgment of the political branches, and will typically avoid reaching the question of whether the President would have had the authority to carry out the action in the absence of congressional authorization. In these situations, presidential action will fall within the highest category of the framework suggested by Justice Jackson in Youngstown for evaluating claims of presidential authority and therefore will be supported by the strongest of presumptions and the widest latitude of judicial interpretation. (2) In Hamdi v. Rumsfeld, for example, the Supreme Court concluded that President Bush had the authority under the Authorization for the Use of Military Force (AUMF), which Congress enacted shortly after the September 11 attacks, to detain a U.S. citizen who had been captured during the fighting in Afghanistan, and the Court declined to reach the question of whether the president would have had this authority in the absence of the AUMF. (3) Similarly, in Ex parte Quirin, the Court concluded that President Roosevelt had the authority under Article 15 of the Articles of War (now Section 821 of the Uniform Code of Military Justice) to try a group of German saboteurs (including one who may have been a U.S. citizen) by military commission, without reaching the question of whether this action fell within the President's constitutional authority. (4) A second distinction that can be drawn is between the President's inherent constitutional authority and his exclusive constitutional authority. The inherent constitutional authority of the President simply refers to authority that the President has independent of any grant of authority by Congress. Because the Constitution gives war-related powers both to the President and to Congress, the inherent powers of the President in this area are likely to overlap with the powers of Congress. That is, the powers of the two branches on some issues will be concurrent. …