Although that principle, read narrowly, would only prohibit Congress from literally placing someone other than the President atop the U. Thus, as a case in point, Congress likely violated the Clause in an appropriations rider that sought to insulate Ulysses S. Grant—then the commanding general of the U.
As a result of this superintendence principle, when Congress authorizes military operations such as through a declaration of war , it necessarily puts the President in charge of them. A more difficult question is how much authority the Clause gives the President beyond operations approved by Congress. In the debates at Philadelphia, James Madison said that giving Congress the power to declare war would leave the President with power to repel sudden attacks.
Presumably this power arises from the Commander in Chief Clause, read to convey independent substantive power to the President to direct the military on matters not related to war initiation. On this basis, Presidents have claimed authority over a range of military actions, including attacking pirates, rescuing U. These cases indicate that the independent authority conveyed to the President by the Clause generally does not extend to interference with the rights and duties of U. As a controversial government memorandum argued,.
Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States. In Hamdan v. Rumsfeld , the Supreme Court appeared to reject this argument in invalidating military tribunals created by President Bush to try non-citizen terrorism suspects.
The more interesting question is why the Calling Forth Clause has disappeared from our modern view of how the Constitution separates war powers. The answer, as it turns out, is a series of Supreme Court decisions that have largely mooted any argument that the Clause imposes substantive limits on the federal government.
Wood —the Justices concluded that the Calling Forth Clause does not in fact limit the circumstances in which the government may call out the militia, upholding the constitutionality of a draft designed to recruit soldiers to fight in World War I, a purely foreign conflict.
More recently, in Perpich v. Department of Defense , the Supreme Court held that members of the National Guard are, for constitutional purposes, federal regulars when called into the active service of the United States—and, like the militia in the cases, may therefore be deployed for purposes other than those outlined in the Calling Forth Clause.
So construed, the Calling Forth Clause undermines the ever-more-visible arguments in favor of strong and unilateral domestic presidential war powers. To the contrary, the reality is that the Constitution expressly envisions a role for Congress to play in providing for governmental responses to even the most existential crises at home, however lost to modern eyes.
This dramatically undermines arguments evoking a broad and unilateral authority for the Commander in Chief in the circumstances contemplated by the Calling Forth Clause, i. 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. The Constitution confers command of the military onto the President.
One reason cited by commentators for placing military power in the hands of a civilian, as opposed to a military officer, is to prevent abuse of military power. The supermajority vote requirement does not apply to two other types of international agreements —sole-executive agreements and congressional-executive agreements.
Above all, the President, in exercising these executive powers, is still subject to the law. Please help us improve our site! No thank you. United States v. Wilson , 32 U. Biddle v. Perovich , U. Edmond , U.
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