https://crsreports.congress.gov
Updated December 29, 2021
Defense Primer: President’s Constitutional Authority with
Regard to the Armed Forces
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....
Commander in Chief
The Constitution makes the President Commander in Chief
of the Armed Forces, but does not define exactly what
powers he may exercise in that role. Nor does it explain the
extent to which Congress, using its own constitutional
powers, may influence how the President commands the
Armed Forces. Separation-of-powers debates arise with
some frequency regarding the exercise of military powers.
Early in the nation’s history, Alexander Hamilton wrote in
The Federalist, No. 69, that the Commander in Chief power
is “nothing more than the supreme command and direction
of the military and naval forces, as first general and admiral
of the confederacy.” Concurring in that view in 1850, the
Supreme Court in Fleming v. Page stated, “[The
President’s] duty and his power are purely military. As
Commander in Chief, he is authorized to direct the
movements of the naval and military forces placed by law
at his command, and to employ them in the manner he may
deem most effectual to harass and conquer and subdue the
enemy.”
In Little v. Barreme, Chief Justice Marshall had occasion to
recognize congressional war power and to deny the
exclusivity of presidential power. There, after Congress had
authorized limited hostilities with France, a U.S. vessel
under orders from the President had seized what its
commander believed was a U.S. merchant ship bound from
a French port, allegedly carrying contraband material.
Congress had, however, provided by statute only for seizure
of such vessels bound to French ports. The Court held, the
President’s instructions exceeded the authority granted by
Congress and were not to be given the force of law, even in
the context of the President’s military powers and even
though the instructions might have been valid in the
absence of contradictory legislation.
In Bas v. Tingy, the Court looked to congressional
enactments rather than plenary presidential power to uphold
military conduct related to the limited war with France. The
following year, in Talbot v. Seeman, the Court upheld as
authorized by Congress a U.S. commander’s capture of a
neutral ship, saying that “[t]he whole powers of war being,
by the constitution of the United States, vested in congress,
the acts of that body can alone be resorted to as our guides
in this inquiry.” During the War of 1812, the Court
recognized in Brown v. United States that Congress was
empowered by the Constitution to authorize the
confiscation of enemy property during wartime, but that
absent such authorization, a seizure authorized by the
President was void.
In the Prize Cases, the Supreme Court sustained the
blockade of southern ports instituted by President Lincoln
in April 1861, at a time when Congress was not in session.
Congress had at the first opportunity ratified the President’s
actions, so that it was not necessary for the Court to
consider the constitutional basis of the President’s action in
the absence of congressional authorization or in the face of
any prohibition. Nevertheless, the Court approved the
blockade five-to-four as an exercise of presidential power
alone, on the basis that a state of war was a fact and that,
the nation being under attack, the President was bound to
take action without waiting for Congress. The case has
frequently been cited to support claims of greater
presidential autonomy by reason of the President’s role as
Commander in Chief.
The Supreme Court has also suggested that the President
has some independent authority to employ the Armed
Forces, at least in the absence of contrary congressional
action. In the 1890 case of In re Neagle, the Supreme Court
suggested, in dictum, that the President has the power to
deploy the military abroad to protect or rescue persons with
significant ties to the United States. Discussing examples of
the executive lawfully acting in the absence of express
statutory authority, Justice Miller approvingly described the
Martin Koszta affair, in which an American naval ship
intervened to prevent a lawful immigrant from being
captured by an Austrian vessel, despite the absence of clear
statutory authorization.
The expansion of presidential power related to war, asserted
as a combination of Commander in Chief authority and the
President’s inherent authority over the nation’s foreign
affairs, began in earnest in the 20
th
century. In United States
v. Curtiss-Wright Export Corp., the Supreme Court
confirmed that the President enjoys greater discretion when
acting with respect to matters of foreign affairs than may be
the case when only domestic issues are involved. In that
case, Congress, concerned with the outside arming of the
belligerents in the war between Paraguay and Bolivia, had
authorized the President to proclaim an arms embargo if he
found that such action might contribute to a peaceful
resolution of the dispute. President Franklin Roosevelt
issued the requisite finding and proclamation, and Curtiss-
Wright and associate companies were indicted for violating
the embargo. They challenged the statute, arguing that
Congress had failed adequately to elaborate standards to
guide the President’s exercise of the power thus delegated.
