Friday, June 30, 2006

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.

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