Commander in Chief Clause – Constitution Article 2 §2.1

On Wednesdays we study the Constitution. These days, I’m learning about the second article of seven, which deals with the presidency. Last week I looked at Article 2 §1.8 which contains the presidential oath of office. This week I’m moving on to the second section of the second article. This section begins to enumerate presidential powers. Article 2 §2.1, which gives the president power over the military, is also known as the commander-in-chief clause.

Article 2 §2.1

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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Literally

If you just read the words, this clause is straightforward. The president is in charge of military forces when they are deployed. He has the right to keep tabs on them at all other times. Easy peasy. But lots of things that seem simple in theory can get complicated quickly in practice, and this is one clause that has gotten really out of hand.

Military or Civilian

As the uproar over Bush wearing a flight jacket attests, Americans are pretty attached to the idea of the president as a civilian in charge of the military. But the words of this clause are not at all clear on that. The president’s civilian status has to be inferred from circumstantial factors (many of which are stated in the Constitution):

• The president’s salary is not paid out of military budgets
• Military activities comprise only a part of the president’s duties
• The president takes an oath of office, as civil servants do, rather than enlisting or being inducted
• The president is subject to impeachment rather than court-martial

Even though it’s not spelled out in so many words, the primacy of civil authority over military power is fundamental to the American system. It’s importance to the health of democratic principles is evidenced by history. The “balance” of the branches of government that we have today is quite unlike what the Framers imagined, and would probably appall them. The president’s military authority has been consistently used to expand presidential power since the mid-19^th century.

The Slippery Slope of Scope Creep

This is such an important subject. After all, the Constitution is all about checks and balances, and this clause (together with the War Powers clause) is the story of how it fails. But you could write an entire book on how Article 2 §2.1, which was meant to keep the military in check, enabled the incremental encroachment of presidential power on the legislative branch. Actually, lots of people already have. Even the Annotated Constitution devotes nearly 30 pages to it. I couldn’t possibly sum it all up in a blog post. I do hope that you will click through and read it, though (starting at page 486).

Compressed into 30-ish pages, this process which occurred over nearly 200 years reads like a sinister and strategic plot. From Lincoln’s failure to await a formal declaration of war to expanding war powers to precede – and then outlast – the state of war; the imprisonment of over 100,000 civilians (mostly birthright citizens); strike-breaking; martial law and the suppression of “civil unrest”; use of military force overseas outside of a state of war. The list goes on, and it was all done with hardly a peep of protest. People will apparently agree to anything in the name of national security. When compared with the original, limited view of presidential authority, it’s almost dystopian. Where are Framer’s-intent conservatives when you need them?

Reflection

The horrors of war cannot be exaggerated. But I think that the horrors can be a distraction from some of the other drawbacks. There’s environmental devastation, for one; the destruction of priceless historical structures and artifacts for another. Economic arguments have been made on both sides – sure the U.S. got an economic boom from WWII and weapons manufacturers always make bank. But when I was a college student backpacking in Europe in the early 1990s, I saw a lot of deferred maintenance taking place. Buildings damaged or due for restoration from the mid-20^th century were finally getting fixed up 50 years after the war.

But the sneakiest drawback of all is the damage to democracy. All of America’s wars are fought “for freedom.” But we commit our most egregious civil rights abuses in the name of national security. The significant scope creep on presidential power has been tightly linked to military actions. Sometimes the risk to freedom is worth it, as when Lincoln’s dangerous precedent resulted in the end of slavery. But the risk is not insignificant, and the losses are cumulative. At the very least, we should all be working our butts off during peacetime to avoid the sorts of situation that make those risks necessary. You know, rather than, say, implementing oppressive foreign policies that radicalize military-age men in developing nations or engaging in Twitter-based trade wars with world powers. Stuff like that.