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Updated December 16,2020
Defense Primer: President's Constitutional Authority with
Regard to the Armed Forces
A rticke l, Se ctkrn 2, . uei
The President shallbe Commander in ChiefoftheArmy
and Navy ofthe United States, and ofthe Militia ofthe
several States, when called into theactual Service ofthe
United States....
The Constitution makes the President Commander in Chief
of the Armed Forces, butdoes not define exactly what
powers he may exercise in that role. Nor does it explain the
extent to which Congress, using its own constitutional
powers, may influence how the President commands the
Armed Forces. Separation-of-powers debates arise with
some frequency regarding the exercise of military powers.
Early in the nation's history, Alexander Hamilton wrote in
The Federalist, No. 69, that the Commander in Chief power
is nothing more than the supreme command and direction
of the military and naval forces, as first general and admiral
of the confederacy. Concurring in that view in 1850, the
Supreme Court in Fleming v. Page s tated, [The
President's] duty and his power are purely military. As
Commander in Chief, he is authorized to directthe
movements of the naval and military forces placedby law
at his command, and to employ themin the mannerhe may
deemmost effectualto harass and conquer and subdue the
enemy.
In Little v. Barreme, Chief Justice Marshall had occasion to
recognize congressional war power and to deny the
exclusivity ofpresidentialpower. There, after Congresshad
authorized limited hostilities with France, a U.S. ves sel
under orders fromthe Presidenthad seized whatits
commanderbelieved was a U.S. merchant ship bound from
a French port, allegedly carrying contraband material.
Congres s had, however, provided by statute only for s eizire
of such vessels bound to French ports. The Court held, the
President's instructions exceeded the authority grantedby
Congres s and were not to be given the force of law, even in
the context of the President's military powers and even
though theinstructions might have been valid in the
absence of contradictory legislation.
In Bas v. Tingy, the Court looked to congressional
enactments rather thanplenary presidential power to uphold
military conductrelated to the limited war with France. The
following year, in Talbot v. Seeman, the Court upheld as
authorized by Congress a U.S. commander's capture of a
neutralship, saying that [t]he whole powers ofwar being,
by the constitution of the United States, vested in congress,
the acts of thatbody can alone be resorted to as our guides
in this inquiry. During the W ar of 1812, the Court
recognized in Brown v. UnitedStates that Congress was
empowered to authorize the confiscation of enemy property
during wartime, but that absent such authorization, a s eizae
authorized by the President was void.
In the Prize Cases, the Supreme Court sustained the
blockade of s outhern ports instituted by President Lincoln
in April 1861, at a time when Congress was notin session.
Congres s had at the first opportunity ratified the President's
actions, so that it was notnecessary for the Court to
considerthe constitutionalbasis ofthe President's actionin
the absence of congressional authorization or in the face of
any prohibition. Nevertheless, the Court approved the
blockade five-to-four as an exercise of pres idential power
alone, on the basis that a state of war was a fact and that,
the nation being under attack, the President was bound to
take action without waiting for Congress. The casehas
frequently been cited to support claims of greater
presidential autonomy by reason ofhis role as Commander
in Chief.
The Supreme Court has also suggested that the President
has some independent authority to employ the Armed
Forces, at least in the absence of contrary congressional
action. In the 1890 case ofIn re Neagle, the Supreme Court
suggested, in dictum, that the Presidenthas thepower to
deploy the military abroad to protect or res cue persons with
significant ties to the United States. Discussing examples of
the executive lawfully acting in the absence of express
statutory authority, Justice Miller approvingly described the
Martin Koszta affair, in which an American navalship
intervened to prevent a lawful immigrant from being
captured by an Austrian vessel, despite the absence of clear
statutory authorization.
The expansion of pres idential power related to war, asserted
as a combination of Commander in Chief authority and the
President's inherent authority over the nation's foreign
affairs, began in earnest in the 20' century. In UnitedStates
v. Curtiss-Wright Export Corp., the Supreme Court
confirmed that the Presidentenjoys greater discretion when
acting with respect to matters of foreign affairs than may be
the case when only domestic issues are involved. In that
case, Congress, concerned with the outside arming of the
belligerents in the war between Paraguay and Bolivia, had
authorized the President to proclaiman arms embargo ifhe
found that such action might contribute to a peaceful
resolutionofthe dispute. President Franklin Roosevelt
is sued the requisite finding andproclamation, and Curtiss-
Wright and associate companies were indicted for violating
the embargo. They challenged the statute, arguing that
Congress had failed adequately to elaborates tandards to
guide the President's exercise of the power thus delegated.
Writing for the Court, Justice Sutherland concluded that the
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