Conflicts between the Commander in Chief and Congress: Concurrent Power Over the Conduct of War

78 Pages Posted: 12 Nov 2007 Last revised: 26 Jun 2008

See all articles by Jules Lobel

Jules Lobel

University of Pittsburgh - School of Law

Abstract

The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration's constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration's starting point - that the President has exclusive authority over battlefield operations.

This article challenges that assumption. It argues that Congress and the President have concurrent power to conduct warfare that has been authorized by Congress, with Congress maintaining the ultimate authority to decide the methods, strategies and tactics by which the United States will wage war, if it chooses to exercise that authority. The President can direct and manage military campaigns in the absence of congressional regulation and restrictions, but the only Commander in Chief power that Congress cannot override is the President's power to command, to be, in Alexander Hamilton's words, the nation's "first general and Admiral." The understanding of concurrent power set forth in this article argues that the two branches power over the conduct of authorized warfare is divided as a practical matter by timing, not subject matter, with the President having the power of initiative over the theatre of war, and Congress having a more deliberative, reflective power, allowing it to check and limit Executive initiative both before and after the Executive acts.

Keywords: Constitutional Law, War Powers, Seperation of Powers, Commander in Chief

Suggested Citation

Lobel, Jules, Conflicts between the Commander in Chief and Congress: Concurrent Power Over the Conduct of War. Ohio State Law Journal, Vol. 69, p. 391, 2008; U. of Pittsburgh Legal Studies Research Paper No. 2007-12. Available at SSRN: https://ssrn.com/abstract=1028526

Jules Lobel (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-648-1400 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
459
Abstract Views
4,847
rank
63,782
PlumX Metrics