Commander in Chief of the Army and Navy - Not of the Congress, Courts and the People

In Hamdan v. Rumsfeld the Supreme Court has put a stop to President Bush's sweeping assertions of it's broad unreviewable powers under the "commander in chief" phrase of Article II. The opinion notes of the broader range of legislative authorities in the Constitution related to the military and wartime judicial administration -

The Constitution makes the President the "Commander
in Chief" of the Armed Forces, Art. II, §2, cl. 1, but vests in
Congress the powers to "declare War . . . and make Rules
concerning Captures on Land and Water," Art. I, §8, cl. 11,
to "raise and support Armies," id., cl. 12, to "define and
punish . . . Offences against the Law of Nations," id., cl.
10, and "To make Rules for the Government and Regula-
tion of the land and naval Forces," id., cl. 14. The inter-
play between these powers was described by Chief Justice
Chase in the seminal case of Ex parte Milligan:
"The power to make the necessary laws is in Con-
gress; the power to execute in the President. Both
powers imply many subordinate and auxiliary powers.
Each includes all authorities essential to its due exer-
cise. But neither can the President, in war more than
in peace, intrude upon the proper authority of Con-
gress, nor Congress upon the proper authority of the
President. . . . Congress cannot direct the conduct of
campaigns, nor can the President, or any commander
under him, without the sanction of Congress, institute
tribunals for the trial and punishment of offences, ei-
ther of soldiers or civilians, unless in cases of a con-
trolling necessity, which justifies what it compels, or
at least insures acts of indemnity from the justice of
the legislature." 4 Wall., at 139, 140.21

Yes, the President is commander in chief of the military, and as such he is the super general. But that doesn't mean that in times of war all of the other provisions in the Constitution fade into oblivion.

(One passing note for all the "strict constructionists" out there, taken literally the President is not Commander in Chief of the Air Force, Marine Corps and Coast Guard since they are not specifically mentioned.)

The opinion then goes on to note -

Whether Chief Justice Chase was correct in suggesting
that the President may constitutionally convene military
commissions "without the sanction of Congress" in cases of
"controlling necessity" is a question this Court has not
answered definitively, and need not answer today. For we
held in Quirin that Congress had, through Article of War
15, sanctioned the use of military commissions in such
circumstances. 317 U. S., at 28 ("By the Articles of War,
and especially Article 15% Congress has explicitly provided,
so far as it may constitutionally do so, that military tribu-
nals shall have jurisdiction to try offenders or offenses
against the law of war in appropriate cases”).

The Court then rebuffed the President's assertion the the earlier Quirin decision had given carte blanche to the President to establish commissions outside of the stautory framework

Contrary to the Government’s assertion, however, even Quirin did
not view the authorization as a sweeping mandate for the
President to “invoke military commissions when he deems
them necessary.” Brief for Respondents 17. Rather, the
Quirin Court recognized that Congress had simply pre-
served what power, under the Constitution and the com-
mon law of war, the President had had before 1916 to
convene military commissions—with the express condition
that the President and those under his command comply
with the law of war. See 317 U. S., at 28–29.23

And then there is the final nail in the coffin of absolute Presidential authority from footnote 23 -

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

All in all, it was a bad day for John Yoo and David Addington, two of the principle authors and proponents of Omnipotent President theory.

The Constitution Is Still Alive

Rejoice. Ring the bells in the Cathedrals. The Supreme Court has begun the process of returning our great nation to one which the founders would have recognized, a country that is not ruled by an omnipotent king, but by a President who must follow our Constitution, laws and Treaties. In Hamdan v. Rumsfeld, a long awaited decision regarding the fate of a Guantanamo detainee, the Court has made clear that the President does not have unlimited powers. It was a 5-3 decision with many concurring and dissenting opinions. Justice Roberts did not participate because it was his D.C. Circuit Court's opinion that was overturned.

There are many noteworthy aspect to this decision, which I am still digesting. Among other things, the Court held that the Authorization for the Use of Military Force (AUMF) did not override existing legal requirements, particularly the Uniform Code of Military Justice and the Geneva Conventions, regarding the establishment and conduct of military commissions. The Court also ruled that the Geneva Conventions apply to persons detained in the Afghan conflict.

Both of these rulings could have much wider implications. The AUMF is one of two arguments used by the President to justify bypassing the Foreign Intelligence Surveillance Act (FISA) warrant requirements in connection with domestic electronic surveillance. The President has argued that FISA can be ignored if another law provides authority for wiretapping and that AUMF provides that separate authority. Hamdan casts serious, but not absolute, doubt on that argument. While there are some other issues involved, there is good reason to think that if AUMF doesn't provide a separate statutory authority to try enemy prisoners it doesn't provide statutory authority to wiretap. That leaves only the President's second argument, that the Commander in Chief authority gives him uncontrollable and unreviewable authority to do whatever he deems necessary in furtherance of that authority. That argument also took a big hit.

The same two legal arguments undergird the President's torture policies and practices and are similarly in jeopardy.

Hamdan could well mean that the Administration's torture policies and practices are not only illegal but also criminal and that the extra-judicial wiretapping outside of the FISA Court is similarly illegal and criminal.

Public Financing - A Different Approach

This recent poll indicating there is widespread support for public financing of elections caused me to dust off an idea that's been floating in my brain for a decade. I'm not just talking about Presidential elections, but Congressional elections as well. The main legal problem with any public financing scheme is how to make it mandatory and and still avoid Constitutional challenges by those who want to contribute to candidates.

One possible answer is to establish an inflation adjusted spending amount for each type of election, President, Senate and Representative (possibly adjusted for Senators by the state's population) and appropriate funds to each party's candidate for that office. Primaries will also have to be addressed. Any person can make a campaign contribution to the candidate of their choosing but those contributions must be remitted to the Treasury to offset the funds appropriated for that candidate. If the contributions exceed the amount appropriated the candidate can spend the surplus amounts.

Under this type of plan people and organization are free to contribute to candidates but they will not know if their contributions will ever be received by the candidate. If the public funding limit is set high enough it is likely that few campaigns will ever see "surplus" contributions.

I'd appreciate any thoughts people have.