Introduction

The President as Commander in Chief

Introduction

Few clauses in the Constitution say so little and do so much. Article II designates the President as commander in chief of the armed forces, and that brief designation sits at the center of some of the hardest separation-of-powers disputes in American law. The reason is practical. Whenever a President sends troops into hostilities, holds captured enemy fighters, or sets up a tribunal to try them, the clause is usually the first justification offered, and the dispute that follows asks how much weight that justification can bear.

This chapter reads the clause as one half of a shared war power. The Constitution divides war-related authority between two branches: the President takes day-to-day command of the military, while Congress holds the powers to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the land and naval forces.¹ Because each branch holds a piece of the whole, the title of commander in chief cannot be read as an open-ended grant. Its reach depends on what Congress has done or left undone, on what the courts will review, and on the rights that individuals keep even in wartime.

The material rewards a careful reading, because the opinions in this area turn on how the Justices weigh constitutional text, historical practice, and the practical demands of war. A student who knows only the outcomes cannot predict how the next set of facts will come out, while a student who follows the reasoning can. The discussion begins below.