Thanks to Shannon Bader, Ben Buell, Will Bleveans, Aquila Maliyekkal, Harper Virginia Law Library for their guidance in finding and accessing materials. Thanks to the research librarians at the University of Harrison, Adam Hirsch, Harold Hongju Koh, John D. Workshops and to Bruce Ackerman, Justin Driver, William N. Gratitude to participants in the Virginia and Yale faculty Thanks to the wonderful students in my Fall 2022 Presidential Professor of Law Albert Clark Tate, Jr., Professor of Law and Miller Center Long march towards deciphering the Commander-in-Chief Clause. To which Presidents have amassed power untethered from constitutional moorings and also may help fend off further executive overreach.Īlthough some puzzles remain, this Article takes some initial strides in the

By decrypting the Clause, this Article highlights the extent If this Article’s assertions areĬorrect, however, Presidents will no longer be able to insist that the FoundersĮstablished a chief commander that can start wars or one that enjoys exclusive authority Without a sense of the Clause’sĪlpha and omega, Presidents will continue to cite it to evade, minimize, andĬommandeer congressional powers. Things, the Commander-in-Chief Clause is far less significant than these other clauses. Influence on which military bills will become law. These other sources of power convey authority over theĪppointment, direction, and removal of military officers and substantial Of Article II and the Presentment Clause, the President wields considerableĪuthority and influence over the military, far more than a generic commander inĬhief would.

They signed the proposals into law and, thereafter, sought to faithfullyīe sure, the President is more than a mere general and admiral. That sought to regulate military operations pervasively, including wars. Indeed, early Presidents never objected to congressional bills Have suggested such autonomy because previous chief commanders had lacked such Nothing about the term “commander in chief” would Crucially, the Clauseĭoes not grant any exclusive authority over peacetime operations or even theĬonduct of war. Only the constrained powers of a general and admiral. The Army and Navy lacks a vast arsenal of military authority but instead possesses President is nothing more than a chief commander, or what Alexander HamiltonĬalled the “first General and Admiral.” The Commander in Chief of Rather than being a sui generis military potentate, the By borrowing aįamiliar expression, the Constitution incorporated the modest, contemporaryĬonception. Throughout the seventeenth and eighteenthĬenturies, there were, at any one time, a multitude of British and AmericanĬommanders in chief, and both assemblies and other military officials consistentlyĭirected these commanders, often in quite intrusive ways. In contrast to modern assumptions, the Article reveals thatĮighteenth-century commanders in chief enjoyed neither sole nor supremeĪuthority over the military. Orthodox reading of the Clause and demarcates the Clause’s elusiveįrontiers. In particular, establishing the Clause’s limits is an acute and persistent problem.Įighteenth-century understandings as a yardstick, this Article topples the Yet, seemingly paradoxically, proponents of this stance cannot say where the Commander in Chief’s power beginsĪnd ends. Some measure of absolute and unchallengeable authority upon the President. Such readings, the meaning of “commander in chief” is as obvious as it is unequivocal-it confers By some lights, the Clause not only equips the President with exclusive control over military operations, but also conveys the powers to start wars,Ĭreate military courts, direct and remove officers, and wield emergency wartime powers.

President with a panoply of martial powers. The conventional wisdom is that the Commander-in-Chief Clause arms the

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