A look at the conflict involving the president's military powers
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If the United States undertakes military operations, either by authorization from Congress or under the President’s independent powers, the Constitution makes the President Commander in Chief of all U.S. military forces, and Congress cannot give command to any other person. But can Congress itself direct how the President exercises that command by requiring or prohibiting certain military actions?
Scholarly opinion is sharply divided on this question. One view, principally associated with Professor John Yoo, holds that attempts by Congress to control the military contrary to the President’s desires infringe the Commander in Chief Clause by in effect depriving the President of the full ability to give commands. An opposing view, developed by Professor Saikrishna Prakash in a series of articles and an important 2015 book on executive power, sees Congress as having complete power over the military through various clauses of Article I, Section 8, with the President’s substantive command authority operating only where Congress has not provided specific direction.
Both views seem to overstate. Contrary to the first view, the Constitution expressly gives Congress significant power over the military. Most notably, Congress has power to “make Rules for the Government and Regulation of the land and naval Forces.” Nothing in the Constitution requires these “Rules” to be consistent with the President’s desires (although of course the President can resist them using the veto power). Further, Congress has a long history of regulating the military, including the articles of war (precursor of the modern Uniform Code of Military Justice) enacted in the immediate post-ratification period. Thus, for example, rules regarding how prisoners are to be treated, whether civilians may be targeted and how intelligence may be gathered by the military seem fully within Congress’s enumerated power. If the President’s Commander in Chief power overrode these rules, the Government-and-Regulation Clause would seem almost meaningless. In addition, Congress’s power to declare war likely includes power to set wartime goals and to limit a war’s scope. Prior to the Constitution, other nations routinely issued goal-setting declarations and fought limited wars. And Congress’s power to define the scope of a war seems confirmed by Congress’s statutory limits on the 1798 Quasi-War with France and by the Supreme Court’s approval of those limits in Bas v. Tingy (1800) and Little v. Barreme (1804).
However, contrary to the second view, the Constitution’s enumeration of Congress’s specific military powers indicates that Congress does not have plenary authority over military operations. In particular, although Congress can make general rules regarding military conduct and can define wartime objectives, it lacks enumerated power to direct battlefield operations—a point demonstrated by examining Congress’s powers under the Articles of Confederation.
In contrast to the Constitution, the Articles gave Congress the powers of “making rules for the government and regulation of the said land and naval forces, and of directing their operations” (emphasis added). The former power is carried over directly into the Constitution’s list of congressional powers, but the latter is not. This strongly suggests that Congress’s Government-and-Regulation power does not include power to “direct [military] operations.”
