There is much debate these days about the inherent powers of the President as Commander-in-Chief. This is the chief, and fallback, justification given by this Administration and its supporters for the continued warrant-less surveillance in contravention of the FISA Act. Today, in an extraordinary statement during the Senate Judiciary Committee hearings on censure of the President, Senator Orrin Hatch stated that no law passed by Congress, e.g. the FISA Act, could supersede the inherent Commander-in-Chief powers of the President. This is, to say the least, a Constitutional leap of faith.
There is no passage in the Constitution that suggests that some inherent power, not explicitly granted to the Executive, can somehow trump a law passed by the Congress. In fact, the Constitution and the Bill of Rights taken together clearly argue the reverse, that the President, in fact the Government, does not have any power that has not been delegated explicitly by the Constitution. If any such inherent power exists, it is reserved for the States or the people. In The Bill of Rights, the Tenth Amendment to the Constitution states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
States’ Rights proponents usually cite this Amendment, but it is equally relevant in preserving the powers of the people. It is the ultimate check provided by the Constitution against the tyranny of the central Government.
The defenders of the Commander-in-Chief’s inherent power base their arguments on Article II Section 2 of the Constitution. Article II Section 2 states:
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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. [Emphasis added by me]
The argument often made is that the President’s Commander in Chief powers are so broad that at wartime the President has inherent powers, acting as the Commander-in-Chief, to violate laws enacted by the Congress (and some even argue that he has the power to violate the Constitution itself). Any thorough reading of the Constitution’s text and the protections the founders so explicitly set forth in The Bill of Rights suggests the opposite, that the Constitution and the laws of the United States are set forth, in fact the entire reasoning behind the Declaration of Independence and the formation of the United States, to protect against the tyranny of one man (whether a monarch or a President) .
The Article I Section 8 of the Constitution gives the Congress of the United States significant war making powers. Article I Section 8 states:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. [Emphasis added by me]
Article I Section 8 gives the Congress the power to make the laws that govern the armed forces. Article II Section 2 gives the President the executive authority to exercise those powers under the laws defined by the Congress and within the limits of the Constitution. Lest there be any doubt that the President somehow can put himself above the law in times of war, the Constitution says no such thing. The Constitution does, however, state quite explicitly in Article II Section 3, in defining the authority given to the President:
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. [Emphasis added by me]
Taking care that the Laws are executed faithfully clearly puts the President under laws enacted by Congress. There is no question then that the President can violate FISA without his violation not being a violation of the law, and hence subject to the penalties set forth in that law.
To dispel all doubt that the governed must be protected from the evils of men with power over them, the framers amended the Constitution to include The Bill of Rights. Within The Bill of Rights, the Fourth Amendment provides protection to the citizens from an overly intrusive and tyrannical Government:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment taken together with the Congress’s expansive powers over the laws of war in Article I and the President’s authority in Article II to execute those powers under the laws enacted by Congress (for example, FISA) make the inherent Commander -in-Chief power argument seem very weak indeed.
In declaring independence from the King, the founders submitted as their first holding against the King that:
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
The founders had foremost in their mind the belief that no one, not even a King, can be above the law and that laws duly passed by the Legislature must be "assented" to by the King, or in our case, must be heeded by the President.
If we are to continue to be a nation of laws and not of men, we must cherish and uphold those laws. That is true for the governed and especially true for those who govern. It is the responsibility of the governed, through their elected representatives; to defend the law of the land and hold to account any who dare violate them.