https://crsreports.congress.gov
Updated December 14, 2022
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—Early Supreme
Court Cases
The Constitution expressly 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 over 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 that “[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. After Congress had
authorized limited hostilities with France, a U.S. vessel
under orders from the President 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 that the
President’s orders 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. In
Talbot v. Seeman, the Court upheld as authorized by
Congress a U.S. commander’s capture of a neutral ship,
holding 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 ratified the President’s actions at the first
opportunity available, so 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, holding that a state of war was a fact and that,
because the nation was under attack, the President was
bound to act without waiting for Congress. This 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.
20
th
Century Expansion of Presidential
Commander-in-Chief Power
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-
