The President as Commander-in-Chief

Abstract

Experience shows, that, so far as Constitution is concerned, President is vested with power adequate to directing defense of United States. Experience shows too, that this power is subject to restraint: even in time of war test of ultra or intra vires is applicable according to established processes of our constitutional system. Whether in prosecution of various war measures executive has overleaped bounds of necessity, whether in particular instances courts have proved too indulgent or too rigid-these are important questions on which men may reasonably differ.' For moment let it be remarked that in studying that aspect of presidential office which has to do with national defense our real problems are chiefly with organization of power and mode of its exercise, rather than with existence of power itself. Constitution provides that The President shall be of Army and Navy of United States ..., and goes on to particularize various other powers with which President is invested. Perhaps because this is only substantive applied to President, it is common usage to say that the President, as Commander-in-Chief has taken certain measureswith some slight suggestion that specific invocation was essential to exercise of power. Presidents have been wont to assert title to eke out a paucity of statutory authority. But President does not, in English phrase, wear two hats. Being is merely one of incidents inseparable from his office. Of course President does not, of his own authority, have at hand all means essential to defense of nation. It is function of Congress to raise forces and make rules for their