Bench Memos

One, Two, Many Commanders in Chief

Linked on the Wednesday NRO web briefing is a rather strange article at TCS Daily by Lee Harris titled “Does the President Need to Be Commander-in-Chief?” Harris spins an imaginative scenario in which the president nominates, and the Senate confirms, a general to be “commander in chief” in our present war, with the president having “delegated to him full responsibility over decision-making in Iraq,” thus defusing an impending “constitutional crisis” between the president and the Congress over war powers and the responsibility for wielding them.

Harris has persuaded himself that the language in Article II of the Constitution, in which the people delegate to the president the power to be “Commander in Chief of the Army and Navy of the United States,” is no barrier to the further delegation of that power by the president to someone else (with the consent of Congress or at least of the Senate). And his evidence for this proposition is an episode in 1798 when, anticipating the possibility of armed conflict with France, President John Adams (who, Harris says, “harbored no illusions about his fitness to command an army”) appointed our retired first president, George Washington, “Lieutenant General and Commander-in-Chief of all the armies raised or to be raised in the United States.”

But Harris has fallen into a simple semantic error. When Washington was nominated and confirmed to (and accepted) the post of “Commander-in-Chief” of an army in the field, he was neither offered nor did he accept the constitutional authority of the president to direct the conduct of war as the commander in chief empowered by Article II. He was given a field command, and that’s all. As Washington’s correspondence in 1798 indicates, he understood himself to be subject to the authority of the Secretary of War, with whom he was in regular communication. And the secretary answered to President Adams. The constitutional lines of authority were just what you would expect—from general in the field to civilian cabinet secretary to president.

It has not been uncommon in our history for uniformed military officers to carry the title “commander in chief” in connection with a field command (or sea command) of high importance. I don’t believe the title is still in such common use (if Pentagon websites are any indication), but it wasn’t so long ago that one heard naval jargon like “CINCPAC” for “commander in chief, Pacific fleet,” for instance. And how much higher can you get than Eisenhower’s World War II title, “Supreme Commander, Allied Expeditionary Force”? If the title had been “Commander in Chief, Allied Expeditionary Force,” no one would have thought that the president had handed his constitutional authority to Ike.

The point is that this army or that navy may have A commander-in-chief—indeed, that our several armies and navies can give us several such commanders in chief at once—but that under the Constitution, there is only one person who is THE commander in chief, and that’s the president.

The legal principle is delegata potestas non potest delegari, or: a delegated power (in this case what the people gave the president) cannot be (re-)delegated by him to another. Call a subordinate military officer whatever you like—super-duper supreme commander in chief of all forces of all services—and this constitutional principle would remain unaffected.

Whether Harris has a bright idea or not, he certainly has an unconstitutional one.


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