Commander in Chief
While Congress has the power to declare war, raise and provide for the armed forces, as well as other war powers, the President serves as Commander in Chief of the United States military. The Founders’ commitment to civilian control of the military is evident in this decision. They believed that the collective wisdom of Congress would be put to good use in determining whether to declare war, but that once declared, one individual would best be able to wage war.
Like many of the President’s powers, the extent of his or her power as Commander in Chief has been debated. Do these powers apply anywhere other than military situations? Does the President’s role as Commander in Chief empower him to act in ways that may abridge the rights citizens who are not members of the military? John Adams and Woodrow Wilson, who signed the Alien and Sedition Acts of 1798 and Espionage Act of 1917, respectively, into law, were accused of enforcing unconstitutional restrictions on freedoms of speech and press. Abraham Lincoln, who led the nation through Civil War, was accused of numerous civil rights violations, including what many believed was an unconstitutional suspension of habeas corpus.
Virginia and Kentucky Resolutions (1798) - Find it on ConstitutionBee.org
These resolutions were passed by the legislatures of Kentucky and Virginia in response to the Alien and Sedition Acts of 1798 and were authored by Thomas Jefferson and James Madison, respectively. The resolutions argued that the federal government had no authority to exercise power not specifically delegated to it in the Constitution.
In an analysis of the principle of federalism, the resolutions argued that the states had the power to nullify unconstitutional federal laws. The Kentucky Resolution declared in part, “[T]he several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those [states], of all unauthorized acts….is the rightful remedy.”
The Virginia Resolution said that by enacting the Alien and Sedition Acts, Congress was exercising “a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”
The ideas in the Virginia and Kentucky Resolutions became a precursor to John C. Calhoun’s arguments about the power of states to nullify federal laws. During the 1830s nullification controversy, though, Madison rejected the legitimacy of nullifcation, and agured that it was not part of the Virginia position in 1798.
War Powers Resolution (1973) - Find it on ConstitutionBee.org
Americans had grown concerned that the country was in undeclared wars in Korea and Vietnam for many years. Article I, section 8 of the Constitution gives Congress the power to declare war, while Article II section 2 gives the President the authority as Commander in Chief of the military.
The War Powers Resolution was passed as a response to executive interpretation of and action under the Gulf of Tonkin Resolution. The Resolution set out to define the balance of power between the legislative and executive branches. The President must consult Congress before the start of hostilities, and report regularly on the deployment. Further, the President must withdraw forces within 60 days if Congress has not declared war or authorized the use of force. Congress passed this law over President Nixon’s veto.
ex parte Milligan (1866) - Find it on ConstitutionBee.org
A person sentenced to death for disloyalty by a military court had the right to appeal his case in a civil court, as long as civil courts were operational. The Court noted the government’s power to suspend habeas corpus in rebellion or invasion, but pointed out that the citizens’ Sixth Amendment right to trial by jury was preserved. The Framers knew that “trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right [habeas corpus], and left the rest to remain forever inviolable.”
The ruling also defined conditions for martial law and asserted the civilian power over the military. “Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration….As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”
The case touched on constitutional principles including separation of powers, checks and balances, and individual rights, and civic values including justice.
Korematsu v. United States (1944) - Find it on ConstitutionBee.org
The Court ruled that the forced internment of Japanese Americans during World War II, authorized by Executive Order 9066, was a constitutional exercise of government power during a time of “emergency and peril” for the country. Justice Hugo Black writing for the majority, explained that the internments had “a definite and close relationship to the prevention of espionage and sabotage.” He went on to explain that the government needed to act quickly in wake of the attack on Pearl Harbor. “There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short.”
The stinging dissent described the government action as “fall[ing] into the ugly abyss of racism….[racial discrimination] is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.”
The decision challenged American constitutional principles including checks and balances, equality, individual rights, and majority rule versus minority rights.
Executive Order 9066 (1942) - Find it on ConstitutionBee.org
President Franklin Roosevelt signed this order in his capacity as Commander in Chief of the military. The order authorized the forced imprisonment of 120,000 Japanese American citizens in internment camps during World War II without trials or hearings. The order stated that the detentions were necessary because “the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises and national defense utilities.”
Many argued that citizens who were taken to the camps lost their liberty and property without due process as required by the Fifth and Fourteenth Amendments. The Supreme Court, however, upheld the forced incarcerations as constitutional wartime measures in Korematsu v. United States (1944). In 1988, President Ronald Reagan signed the Civil Liberties Act, under which sixty thousand survivors of the camps were each paid $20,000 to compensate them for their lost liberty and property.
The order challenged American constitutional principles including checks and balances, equality, individual rights, and majority rule versus minority rights.
Want to learn more?
The resources contained on the ArticleII.org website are just the beginning! The Bill of Rights Institute curriculum, Presidents and the Constitution, explores how various presidents understood and exercised their constitutional powers. By exploring constitutional crises in American history, these interactive, hands-on lessons encourage students to analyze the actions of Presidents in light of the Constitution.
Students will engage with:
▪ 15 ready-to-use, interactive lesson plans
▪ Strong focus on primary source activities
▪ Solid content including historical narrative in each lesson
▪ Scholarly thematic essays that introduce each unit
▪ Contemporary application highlighted with an “Issues Endure” portal in each unit
Less than a year after taking office, Theodore Roosevelt showed a willingness to follow the dictates of his own conscience, even if his choices were unpopular. He invited...