The separation of powers - As commander in chief

Learning Outcomes

After reading this article, you will be able to explain the constitutional basis and scope of the President’s commander in chief power, identify the limits imposed by Congress and the courts, and analyze how this power interacts with federal statutes and the separation of powers doctrine. You will be prepared to answer MBE questions on presidential military authority and related constitutional issues.

MBE Syllabus

For MBE, you are required to understand the constitutional allocation of military powers between Congress and the President, and how the commander in chief role fits within the separation of powers. This article covers:

  • The constitutional source and scope of the President’s commander in chief power.
  • Congressional authority to declare war, fund or limit military operations, and regulate the armed forces.
  • The limits of executive military action without congressional approval.
  • Judicial review of military decisions and political question doctrine.
  • The interplay between treaties, executive agreements, and military authority.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which branch of government has the constitutional power to declare war?
    1. The President
    2. Congress
    3. The Supreme Court
    4. The Secretary of Defense
  2. The President’s power as commander in chief allows the President to:
    1. Declare war unilaterally
    2. Direct military operations and deploy troops
    3. Fund military actions without Congress
    4. Override all federal statutes in wartime
  3. Congress may limit the President’s use of military force by:
    1. Passing appropriations restrictions
    2. Appointing military officers directly
    3. Issuing executive orders
    4. Vetoing presidential military decisions
  4. A federal court is least likely to review which of the following?
    1. The constitutionality of a military draft
    2. The President’s decision to deploy troops abroad
    3. The legality of a military base closure
    4. The prosecution of a civilian in a military tribunal

Introduction

The U.S. Constitution divides military powers between Congress and the President. Article II designates the President as "commander in chief" of the armed forces, while Article I gives Congress the power to declare war, raise and support armies, and regulate the military. Understanding the scope and limits of the commander in chief power is essential for MBE questions on the separation of powers and executive authority.

Key Term: Commander in Chief
The President’s constitutional role as the supreme civilian leader of the U.S. armed forces, with authority to direct military operations and personnel.

The President’s Commander in Chief Power

Constitutional Basis

Article II, Section 2 of the Constitution states: "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." This clause gives the President operational control over the military.

Scope of Authority

The President may direct military strategy, order troop deployments, and respond to emergencies or attacks without waiting for congressional approval. However, the President cannot declare war, appropriate funds, or expand the military without congressional action.

Key Term: Separation of Powers
The constitutional principle dividing government authority among the legislative, executive, and judicial branches to prevent concentration of power.

Key Term: War Powers Resolution
A federal statute requiring the President to notify Congress within 48 hours of deploying armed forces and limiting troop deployments to 60 days without congressional authorization.

Congressional Checks

Congress holds significant checks on the President’s military authority:

  • Only Congress can declare war (Art. I, Sec. 8).
  • Congress controls military funding and may restrict appropriations.
  • Congress may pass laws regulating the armed forces and military conduct.
  • Congress can require the President to seek authorization for certain military actions.

Worked Example 1.1

Congress passes a statute limiting the use of U.S. troops in a foreign country to 30 days unless Congress grants further approval. The President, citing the commander in chief power, continues the deployment for 90 days without congressional authorization. Is the President’s action likely constitutional?

Answer:
No. While the President may direct military operations, Congress has the power to limit the duration of military deployments through appropriations or statutory restrictions. The President must comply with valid congressional limits unless they unconstitutionally interfere with core executive functions.

Judicial Review and Political Questions

Courts generally avoid reviewing the President’s military decisions, treating them as political questions. However, courts may review whether executive actions violate statutes or constitutional rights, especially if civilian rights are implicated.

Key Term: Political Question Doctrine
The principle that certain constitutional issues, especially those involving foreign affairs or military decisions, are not suitable for judicial resolution.

Worked Example 1.2

A group of citizens sues to stop the President from ordering airstrikes abroad without a congressional declaration of war. The court dismisses the case as nonjusticiable. Why?

Answer:
Courts typically treat the conduct of military operations as a political question, leaving such matters to the executive and legislative branches. Unless a clear constitutional or statutory violation is alleged, courts will not intervene.

Limits on Commander in Chief Power

The President’s commander in chief authority is not absolute:

  • Congress may restrict or terminate military operations by statute or appropriations.
  • The President cannot use the military to override valid federal laws or suspend constitutional rights.
  • Military trials of civilians are generally unconstitutional when civilian courts are open.

Key Term: Military Tribunal
A court operated by the military to try members of the armed forces or, in limited circumstances, enemy combatants.

Key Term: Martial Law
Temporary military rule imposed during emergencies, generally not permitted when civilian courts are functioning.

Worked Example 1.3

During peacetime, the President orders the trial of a U.S. civilian in a military tribunal for espionage. Civilian courts are open and available. Is this constitutional?

Answer:
No. The Supreme Court has held that military tribunals may not try civilians when civilian courts are open. The President’s commander in chief power does not override this limitation.

Treaties, Executive Agreements, and Military Power

The President may enter into treaties (with Senate approval) or executive agreements relating to military matters. However, treaties and agreements cannot override the Constitution or valid federal statutes.

Key Term: Executive Agreement
An international agreement made by the President without Senate approval, which may address military or foreign policy matters but cannot override federal law.

Key Point Checklist

This article has covered the following key knowledge points:

  • The President is commander in chief of the armed forces but cannot declare war or fund military actions unilaterally.
  • Congress may limit or end military operations through statutes or appropriations.
  • The President’s military decisions are generally not reviewable by courts due to the political question doctrine.
  • Military tribunals may not try civilians when civilian courts are open.
  • Treaties and executive agreements cannot override the Constitution or valid federal statutes.

Key Terms and Concepts

  • Commander in Chief
  • Separation of Powers
  • War Powers Resolution
  • Political Question Doctrine
  • Military Tribunal
  • Martial Law
  • Executive Agreement
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