Article II, Section 2, Clause 1:

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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

While the President customarily delegates supreme command of the forces in active service, there is no constitutional reason why he should do so, and he has been known to resolve personally important questions of military policy. President Abraham Lincoln early in 1862 issued orders for a general advance in the hopes of stimulating General George McClellan to action; President Woodrow Wilson in 1918 settled the question of an independent American command on the Western Front; President Harry Truman in 1945 ordered that the bomb be dropped on Hiroshima and Nagasaki.1 As against an enemy in the field, the President possesses all the powers which are accorded by international law to any supreme commander. “He may invade the hostile country, and subject it to the sovereignty and authority of the United States.” 2 In the absence of attempts by Congress to limit his or her power, the President may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his or her authority to do this sometimes survives cessation of hostilities.3 The President may employ secret agents to enter the enemy’s lines and obtain information as to its strength, resources, and movements.4 He or she may, at least with the assent of Congress, authorize commercial intercourse with the enemy.5 The President may also requisition property and compel services from American citizens and friendly aliens who are situated within the theater of military operations when necessity requires, thereby incurring for the United States the obligation to render “just compensation.” 6 By the same warrant, a President may bring hostilities to a conclusion by arranging an armistice, stipulating conditions that may determine to a great extent the ensuing peace.7 The President may not, however, effect a permanent acquisition of territory,8 though he or she may govern recently acquired territory until Congress sets up a more permanent regime.9

The President is the ultimate tribunal for the enforcement of the rules and regulations that Congress adopts for the government of the forces, and that are enforced through courts-martial.10 Indeed, until 1830, courts-martial were convened solely on the President’s authority as Commander in Chief.11 Such rules and regulations are, moreover, it seems, subject in wartime to his or her amendment at discretion.12 Similarly, the power of Congress to “make rules for the government and regulation of the land and naval forces” did not prevent President Lincoln from promulgating, in April 1863, a code of rules to govern the conduct in the field of the armies of the United States, which was prepared at his instance by a commission headed by Francis Lieber and which later became the basis of all similar codifications both here and abroad.13 One important power that the President lacks is that of choosing his or her subordinates, whose grades and qualifications are determined by Congress and whose appointment is ordinarily made by and with the advice and consent of the Senate, though undoubtedly Congress could if it wished vest their appointment in “the President alone.” 14 Also, the President’s power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal pursuant to a sentence of a general court-martial or in commutation of a sentence of a court-martial.15 But the provision is not regarded by the Court as preventing the President from displacing an officer of the Army or Navy by appointing with the advice and consent of the Senate another person in his or her place.16 Congress has not limited the President’s power of dismissal in time of war.

Footnotes

1

For a review of how several wartime Presidents have operated in this sphere, see The Ultimate Decision: The President As Commander In Chief (Ernest R. May ed. 1960).

2

Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).

3

Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).

4

Totten v. United States, 92 U.S. 105 (1876).

5

Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1875); Haver v. Yaker, 76 U.S. (9 Wall.) 32 (1869).

6

Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1852); United States v. Russell, 80 U.S. (13 Wall.) 623 (1871); Totten v. United States, 92 U.S. 105 (1876); 40 Ops. Atty. Gen. 250, 253 (1942).

7

Cf. the Protocol of August 12, 1898, which largely foreshadowed the Peace of Paris, 30 Stat. 1742 and President Wilson’s Fourteen Points, which were incorporated in the Armistice of November 11, 1918.

8

Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).

9

Santiago v. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, see Dooley v. United States, 182 U.S. 222, 230–31 (1901).

10

Approval of Court-Martial Sentence, 15 Ops. Atty. Gen. 290, 297 n. (1877). Cf. New Trials before Courts-Martial, 1 Ops. Atty. Gen. 233, 234 (1818) (Attorney General Wirt stating the contrary view).

11

Swaim v. United States, 165 U.S. 553 (1897); and cases there reviewed. See also Givens v. Zerbst, 255 U.S. 11 (1921).

12

Ex parte Quirin, 317 U.S. 1, 28–29 (1942).

13

U.S. Const. art. I, § 8, cl. 14; General Orders, No. 100 (Apr. 24, 1863), reprinted in 3 The War of the Rebellion: Official Records of the Union and Confederate Armies (Ser. III) (Robert N. Scott ed. 1880-1901).

14

See, e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); United States v. Corson, 114 U.S. 619 (1885).

15

10 U.S.C. § 1161. See also 10 U.S.C. § 804 (permitting officer dismissed by presidential order to demand court-martial).

16

Mullan v. United States, 140 U.S. 240 (1891); Wallace v. United States, 257 U.S. 541 (1922).