The separation and overlap of war and military powers

Texas Law Review

Volumn 87, Issue 2, 2008, Pages 299-386

  Prakash, Saikrishna Bangalore ^a,b  

^a UNIVERSITY OF SAN DIEGO   (United States)

^b PRINCETON UNIVERSITY   (United States)

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EID: 59249100775     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (527)

1. This literature is truly gigantic. An incomplete list would include JOHN HART ELY, WAR AND R ESPONSIBILITY 3-9 (1993);
2. LOUIS FISHER, PRESIDENTIAL WAR POWER 3-12 (2d ed. 2004);
3. MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 80-84 (1990);
4. HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION 74-77 (1990);
5. MICHAEL D. RAMSEY, THE CONSTITUTION'S TEXT IN FOREIGN AFFAIRS 218-49 (2007) [hereinafter RAMSEY, THE CONSTITUTION'S TEXT];
6. W. TAYLOR REVELEY III, WAR POWERS OF THE PRESIDENT AND CONGRESS: WHO HOLDS THE ARROWS AND OLIVE BRANCH? 55-115 (1981);
7. FRANCIS D. WORMUTH & EDWIN B. FIRMAGE, TO CHAIN THE DOG OF WAR 72-75 (2d ed. 1986);
8. JOHN YOOV, THE pOWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11, at 143-60 (2005) [hereinafter Yoo, THE POWERS OF WAR AND PEACE];
9. Raoul Berger, War-Making by the President, 121 U. PA. L. REV. 29, 39-47 (1972);
10. Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 YALE L.J. 672, 677-88 (1972);
11. Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543, 1545 (2002) [hereinafter Ramsey, Textualism and War Powers];
12. William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 CORNELL L. REV. 695, 740-56 (1997);
13. and John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 246-47 (1996) [hereinafter Yoo, The Continuation of Politics]. For my contributions to this scholarship, see Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by "Declare War," 93 CORNELL L. REV. 45 (2007) [hereinafter Prakash, What the Constitution Means], and Saikrishna Prakash, A Two-Front War, 93 CORNELL L. REV. 197 (2007) [hereinafter Prakash, A Two-Front War]. In a more recent piece, I examine the various forms that declarations of war might take and the numerous functions and features of war declarations. See Saikrishna Bangalore Prakash, Exhuming the Seemingly Moribund Declaration of War, 77 GEO. WASH. L. REV. 101 (2008) [hereinafter Prakash, Moribund Declaration of War].
14. U.S. CONST. art. I, § 8, cl. 11 (granting Congress the power "[t]o declare war").
15. U.S. CONST. art. II, § 2 ("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-").
16. See, e.g., Yoo, The Continuation of Politics, supra note 1, at 173-74 (arguing that the Constitution empowers the President to start wars).
17. See, e.g., REVELEY, supra note 1, at 63-64 (concluding that the Declare War and Marque and Reprisal authorities "almost certainly [were] intended to convey control over all involvement of American forces in combat").
18. See, e.g., Ingrid Brunk Wuerth, International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered, 106 MICH. L. REV. 61, 95 (2007).
19. See, e.g., Memorandum from Jay S. Bybee, Assistant Attorney Gen., Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 172, 207 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) (asserting the President's sole authority to regulate the interrogation of enemy combatants).
20. For a discussion of both sides of this issue, see Charles Tiefer, Can Appropriation Riders Speed Our Exit From Iraq?, 42 STAN. J. INT'L L. 291, 299-300 (2006).
21. Professors David Barron and Martin Lederman discuss why such questions have come to the fore. See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 698-720 (2008).
22. This Article provides an account of the original meaning of the Constitution's separation and overlap of war and military powers. Although this Article's claims will appeal to originalists, many non-originalists may find much of interest as well, particularly the English and American antecedents of phrases and terms found in the Constitution. For those who believe that the Constitution's meaning evolves over time, some appreciation of the original framework makes it possible to discern the extent to which the living Constitution has mutated. Moreover, those who reject originalist readings of the Constitution may wish to better grasp what they are casting aside. The claims made here relate to the constitutional authorities of the President and Congress. Whether Congress may delegate various war and military powers to the President, the degree to which the states may exercise various war and military powers, and the extent to which treaties may regulate or constrain the war and military powers of the President and Congress are matters beyond the scope of this Article. Finally, the Article says nothing about the separation and overlap of foreign-affairs powers. For a discussion of that distinct but related topic, see generally Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001).
23. See infra text accompanying notes 211-12.
24. See infra text accompanying notes 374-75.
25. See infra text accompanying notes 237-45. This Article draws lessons from statutes, case law, and executive practice-recognizing that post-ratification material sometimes may yield a distorted sense of the Constitution's original meaning.
26. See Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 558-59 (1994) (suggesting that possibility of distortion, especially when examining only one branch's materials on a question of separation of powers). In this particular context, that concern seems unwarranted. Given that material from all three branches points in the same direction and that these sources confirm earlier English and American understandings of war and military powers, the potential for distortion from an examination of post-ratification statutes, practices, and judicial opinions seems rather minimal.
27. See infra Parts III and IV.
28. See, e.g., Act of July 6, 1812, ch. 128, 2 Stat. 777 (repealed 1817).
29. See, e.g., Act of Mar. 3, 1813, ch. 61, 2 Stat. 829.
30. Recently, a handful of scholars have examined a few of the questions discussed in this Article. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 HARV. L. REV. 941 (2008) [hereinafter Barron & Lederman, A Constitutional History]; see Barron & Lederman, supra note 9;
31. Wuerth, supra note 6. This Article differs from these recent works in significant respects. In contrast to the claims made here. Professor Wuerth's scholarship does not identify the meaning of various war and military powers. Instead, she argues that international law can be used as a means of understanding the scope of the President's power as Commander in Chief. Wuerth, supra note 6, at 64-65. This Article does not address that possibility; instead it provides an originalist account of the separation and overlap of war and military powers. Professors Barron and Lederman maintain that the President has no preclusive (exclusive) military powers by virtue of being Commander in Chief.
32. See Barron & Lederman, supra note 9, at 696 ("[N]otwithstanding recent attempts to yoke the defense of executive defiance in wartime to original understandings, there is surprisingly little Founding-era evidence supporting the notion that the conduct of military campaigns is beyond legislative control and a fair amount of evidence that affirmatively undermines it."). They assert that at the Founding and for over a century and a half after, it was well understood that Congress might regulate the President's command of the military.
33. See id. at 697. They do not offer an account of what substantive powers the President has as Commander in Chief, saying only that the President may superintend the armed forces and militia.
34. Id. at 696-97, 770 (discussing the President's superintendence prerogative and disclaiming any attempt to list the President's war and military powers). Nor do they discuss in any systematic way the portions of the Constitution that authorize Congress to direct military operations.
35. See id. at 772 (claiming that the text grants Congress "plausible claims to authority" but not articulating why that is so). Indeed, their section discussing constitutional text and structure says virtually nothing about congressional power, focusing exclusively on the Commander in Chief Clause.
36. Id. at 767-72. The few times they discuss sources of congressional power elsewhere, the treatment is somewhat conclusory and mostly in footnotes.
37. See. e.g. id. at 733, 735 n. 143, 742 n. 167, 754 n. 195, 780, 788 (discussing Congress's power to govern and regulate the armed forces). In contrast to the Barron and Lederman articles, this Article offers a comprehensive account of all war and military powers, coupled with claims about where such powers overlap and where they are exclusive. As such, it necessarily discusses much more than the question of whether the President has any exclusive military powers by virtue of being Commander in Chief. In particular, it offers a positive account of the scope of presidential power, arguing that the President has powers beyond the "superintendence prerogative" that Barron and Lederman discuss.
38. See id. at 696-97, 770 (explaining the President's superintendence prerogative). Moreover, this Article also makes assertions about the scope of congressional power over military and war powers, something outside the focus of the Barron and Lederman articles. One might say that it is impossible to conclude that the President lacks any exclusive war and military powers without also making concrete claims about the scopes of various presidential and congressional powers-something Barron and Lederman never do. After all, if one concludes that the President has a power over a subject matter and that Congress does not, then the President would have an exclusive and absolute power, not because he was Commander in Chief, but because Congress has no concurrent power over the subject matter. Barron and Lederman focus on whether the phrase "Commander in Chief implies some nonregulable power; however, they never provide an account of the scope of the President's power as Commander in Chief or discuss why and how Congress has overlapping authority. Indeed, the very phrase they use to discuss whether the President has any absolute, indefeasible powers ("preclusive powers") implies a focus on whether the Commander in Chief power itself is meant to be exclusive, thereby shunting aside the equally crucial question of whether Congress has overlapping power. By examining only one side of the equation (presidential power), by failing to provide an account of the scope of presidential power, and by largely assuming that the Constitution grants Congress authority over the same matters (rather than making a sustained argument for such a proposition), Barron and Lederman's analysis is somewhat incomplete.
39. See U.S. CONST. art. I, § 7, cl. 2 ("Every Bill which shall have passed The House of Representatives and the Senate, shall, before it become a Law, be presented to the President.... If any Bill shall not be returned by the President within ten Days..., the same shall be a Law....").
40. Id.
41. In a symposium essay, I tentatively sketched out possible theories concerning the overlap and separation of congressional and executive powers over war and military matters. See Saikrishna Prakash, Regulating the Commander in Chief: Some Theories, 81 IND. L.J. 1319, 1320-22 (2006) (outlining the "Separation Thesis," in which congressional and presidential powers have no overlap; the "Coterminous Thesis," under which power is shared and Congress's rules govern in the case of a conflict; the "Partial Overlap," in which some power is shared and some is exclusive; and a fourth theory, under which the President has "all the powers that Congress has and more," and the President's rules govern in the case of a conflict). This Article reflects a more thorough exploration of English and American understandings of the various war and military powers.
42. In A Taxonomy of Presidential Powers, I proposed a number of adjectives that can be used to describe claims about presidential power. Saikrishna Bangalore Prakash, A Taxonomy of Presidential Powers, 88 B.U. L. REV. 327, 334-37 (2008). I rely upon those adjectives here.
43. James Madison, Letters of Helvidius, No. II (Aug. 28, 1793), reprinted in 6 THE WRITINGS OF JAMES MADISON 151, 155 (Gaillard Hunt ed., 1906). Madison argued that only Congress could declare neutrality and that this was not a power shared with the President.
44. U.S. CONST. art. II, § 3 ("He shall from time to time... recommend to their Consideration such Measures as he shall judge necessary and expedient....").
45. Id. art. II, § 2 (providing that the President "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").
46. See id. art. I, § 8, cl. 17 (granting Congress the power to "exercise exclusive Legislation in all Cases whatsoever,... over such District... as may... become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased... for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings...").
47. Id. art. I, § 8.
48. Id. art. I, § 10. The Articles of Confederation helpfully provided that the Continental Congress had the "sole and exclusive right and power" over many war and military powers. ARTS. OF CONFEDERATION art. IX ("The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war,... granting letters of marque and reprisal in times of peace... of making rules for the government and regulation of the said land and naval forces, and directing their operations."). This "sole and exclusive" language, repeated twice in the Articles, was a federalism provision meant to specify which powers could not be exercised by the states because they rested exclusively with the Continental Congress. For an extended discussion of the Constitution's foreign-affairs federalism, see RAMSEY, THE CONSTITUTION'S TEXT, supra note 1, at 259-320.
49. U.S. CONST. art. I, § 8, cl. 11.
50. Id.
51. Id. cl. 12.
52. Id. cl. 13.
53. Id. cl. 11.
54. Id. cl. 15.
55. See Ramsey, Textualism and War Powers, supra note 1, at 1549-50 (noting and criticizing this tendency).
56. See, e.g., Phillip Bobbitt, War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath, 92 MICH. L. REV. 1364, 1384 (1994) (noting that the Korean War and the French Naval War were conducted "without benefit of a declaration of war" despite the fact that both "were, by any standard, substantial national engagements");
57. Mark E. Brandon, War and American Constitutional Order, 56 VAND. L. REV. 1815, 1819 (2003) (classifying the French Naval War, the First Barbary War, the Second Barbary War, the Civil War, the Korean War, the Vietnam War, the Persian Gulf War, the Balkan intervention, and the current operations in Afghanistan and Iraq as undeclared wars);
58. J. Gregory Sidak, To Declare War, 41 DUKE L.J. 27, 40 (1991) (identifying the Korean War and Vietnam War as undeclared wars).
59. See 2nd Parl. of Geo. II, 4th Sess. 1738 (statement of Robert Walpole), reprinted in 10 THE HISTORY AND PROCEEDINGS OF THE HOUSE OF COMMONS FROM THE RESTORATION TO THE PRESENT TIME: 1737-1739 (London, 1742), available at http://www.british-history.ac.uk/report.asp?compid= 37805 [hereinafter PROCEEDINGS OF THE HOUSE OF COMMONS] (presenting Robert Walpole's observation that "of late most Wars have been declar'd from the Mouths of Cannons, before any formal Declaration");
60. THE FEDERALIST No. 25, at 165 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("[T]he ceremony of a formal denunciation of war has of late fallen into disuse...."). Walpole is regarded as the first English Prime Minister. ROBERT ECCLESHALL & GRAHAM S. WALKER, BIOGRAPHICAL DICTIONARY OF BRITISH PRIME MINISTERS 1 (1998).
61. See Yoo, The Continuation of Politics, supra note 1, at 246-47 (describing the Declaration of Independence as a declaration of war).
62. See, e.g., THE ANNUAL REGISTER, OR A VIEW OF HISTORY, POLITICS, AND LITERATURE, FOR THE YEAR 1779, at 411 (London, J. Dodsley 1796) (describing the announcement of France's treaty of alliance as a "true declaration of war" on the part of the French);
63. see also Letter from George Washington to the Continental Congress (May 12, 1778), available at http://rs6.loc.gov/cgibin/query/r?ammem/ mgw:@field(DOCID+@lit(gw110371)) (describing the notification of the French alliance with the Americans as "conceived in terms of irony and derision, more degrading to the pride and dignity of Britain, than any thing she has ever experienced").
64. 1 JACQUES M. NECKER, AN ESSAY ON THE TRUE PRINCIPLES OF THE EXECUTIVE POWER IN GREAT STATES 273 (London, G.G.J. & J. Robinson 1792).
65. See supra note 36.
66. See, e.g., Letter from King George III to Frederick North (Letter 512) (July 18, 1778), in 2 THE CORRESPONDENCE OF KING GEORGE THE THIRD WITH LORD NORTH FROM 1768 TO DECEMBER 1783, at 205 (W. Bodham Donne ed., London, John Murray 1867) (claiming that, by its engagement in a skirmish with the British Navy, France had "cast off the mask and declared war");
67. see also J.F. MAURICE, HOSTILITIES WITHOUT DECLARATION OF WAR 44 (London, Her Majesty's Stationery Office 1883) (quoting Czar Alexander of Russia's claim that "Napoleon, by a sudden attack on our troops at Kowno, has declared war").
68. Letter from John Adams to Samuel Adams (Feb. 14, 1779), in 3 THE REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 47, 48 (Francis Wharton ed., Washington, Gov't Printing Office 1889) (noting that war between England and France was "sufficiently declared by actual hostilities in most parts of the world").
69. For a more complete account of the numerous functions served by declarations, see Prakash, Moribund Declaration of War, supra note 1, at 119-31.
70. See U.S. CONST. art. II, § 1, cl. 1 ("The executive Power shall be vested in a President of the United States of America.").
71. For a discussion of the domestic- and foreign-affairs powers granted to the President by virtue of the grant of the Executive power, see generally, Calabresi & Prakash, supra note 13;
72. Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. ILL. L. REV. 701;
73. and Prakash & Ramsey, supra note 10.
74. Though the Crown could declare war, early eighteenth-century Parliaments constrained this power. In the Act of Settlement, the English Parliament made it possible for a foreign prince to sit on the English throne. Concerned that English soldiers might be forced to defend foreign soil, the Act also provided that should a foreigner assume the throne, the "nation [was] not obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of England, without the consent of parliament." Act of Settlement, 1700, 12 & 13 W. & M. 3, c. 2, § 3 (Eng.). In 1703, the Scottish Parliament enacted a more significant restraint, providing that "no person being king or queen of Scotland and England, shall have the sole power of making war with any prince, potentate or state whatsoever without consent of Parliament, and that no declaration of war without consent aforesaid shall be binding on the subjects of this kingdom...." Act Anent Peace and War, XI (1703), in ENGLISH HISTORICAL DOCUMENTS, 1660-1714, at 677, 677 (Andrew Browning ed., 1995). To underscore the point, the statute went on to provide that "everything which relates to treaties of peace, alliance, and commerce, is left to the wisdom of the sovereign, with consent of the Estates of Parliament who shall declare the war...." Id. (emphasis added).
75. See 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION § 1166, at 60-61 (n.p. 1833) (noting that the founders chose to make declarations of war difficult by vesting the power to make them with Congress); cf. Treanor, supra note 1, at 771-72 (arguing that the founders thought that the President would be too prone to go to war and hence gave the power to Congress).
76. See generally Treanor, supra note 1, at 772 (arguing that the founders believed that presidents might be prone to military adventures in order to secure glorious reputations).
77. Letter from James Madison to Thomas Jefferson (Apr. 2, 1798), in 2 THE REPUBLIC OF LETTERS: THE CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND JAMES MADISON 1776-1826, at 1031, 1032 (James Morton Smith ed., 1995).
78. Id. at 1032.
79. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15 THE PAPERS OF THOMAS JEFFERSON 392, 397 (Julian P. Boyd ed., 1958).
80. The proper constitutional baseline for determining whether there was a real transfer is hardly obvious. If one used the British constitution as a baseline, as Jefferson seemed to, the Constitution could be described as transferring the Declare War power from a unitary Executive to the Legislature. But if one used the Articles of Confederation as the baseline, there was no transfer of war power at all. After all, one could argue that where war powers are concerned, the new Congress is a plural executive, just as the Continental Congress had been. In other words, one could argue that for purposes of various war powers, the Constitution replicates the plural executive empowered to wield various war powers. For a discussion of the Continental Congress's executive powers over war and foreign affairs, see Prakash & Ramsey, supra note 10, at 272-78.
81. Compare ELY, supra note 1, at 5 (positing that the change from "make war" to "declare war" evidences an original understanding of limited presidential war powers), with John Yoo, War, Responsibility, and the Age of Terrorism, 57 STAN. L. REV. 793, 797-98 (2004) (criticizing Ely's reading of the historical record and arguing for expansive presidential war powers).
82. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 318-19 (Max Farrand ed., 1911) (recording the statements of five convention delegates expressing their understanding that the Declare War Clause gives Congress the sole authority to declare war).
83. 2 THE dEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 528 (Jonathan Elliot ed., Washington, Congress 2d ed. 1836) [hereinafter THE DEBATES IN THE SEVERAL STATE CONVENTIONS].
84. See, e.g., Rufus King & Nathaniel Gorham, Response to Elbridge Gerry's Objections, Post-31 October, in 4 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 186, 190 (John P. Kaminski & Gaspare J. Saladino eds., 1997) (applauding the fact that the Constitution requires the consent of both branches of Congress together with the President in order to declare war because "as war is not to be desired and always a great calamity, by increasing the Checks, the measure will be difficult").
85. Letter from George Washington to William Moultrie (Aug. 28, 1793), in 33 THE WRITINGS OF GEORGE WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES, 1745-1799, at 73 (John C. Fitzpatrick ed., 1940).
86. See, e.g., JAMES KENT, DISSERTATIONS: BEING THE PRELIMINARY PART OF A COURSE OF LAW LECTURES 66 (Fred B. Rothman & Co. 1991) (1795) ("[W]ar can only be commenced by an act or resolution of [C]ongress.");
87. WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 109, 109-10 (Philadelphia, Philip H. Nicklin 2d. ed. 1829) ("The power of declaring war... forms the next branch of powers exclusively confided to [C]ongress.");
88. 3 STORY, supra note 47, § 1166, at 60-61 (noting that the founders chose to make declaration of war difficult by vesting the power to declare war with Congress);
89. 1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES, app. at 270 (Philadelphia, W.Y. Birch & A. Small 1803) (explaining that the President's veto power means "it may be in the power of the executive to prevent, but not to make, a declaration of war").
90. See, e.g., Letter from James Madison to Thomas Jefferson (Apr. 2, 1798), in 6 THE WRITINGS OF JAMES MADISON, supra note 22, at 311, 312 (asserting that because history had revealed executive branches to be the "most interested in war," the Constitution "with studied care, vested the question of war" in Congress); Letter from Henry Knox to William Blount (Oct. 9, 1792), excerpted in 11 THE PAPERS OF GEORGE WASHINGTON: PRESIDENTIAL SERIES, AUGUST 1792-JANUARY 1793, at 213 n. 3 (Christine Sternberg Patrick ed., 2002) [hereinafter THE PAPERS OF GEORGE WASHINGTON] (instructing a military commander to "confine all your operations to defensive measures" until after "[t]he Congress which possess the powers of declaring War" had assembled); Letter from Henry Knox to Henry Lee (Oct. 9, 1792), excerpted in THE PAPERS OF GEORGE WASHINGTON, supra, at 214 n. 3 (explaining that only members of Congress "are invested with the powers of War").
91. Early Congresses never passed resolutions explicitly stating that the President could not declare war. Yet early congressional views on this matter are discernible from statutes. When presidents sought congressional direction on whether to fight a war, see, e.g., Special Message to Congress (June 1, 1812), in 8 THE WRITINGS OF JAMES MADISON, supra note 22, at 192, 192-201, Congresses enacted declarations of war rather than informing the presidents that they could declare war on their own. See, e.g., Act of June 18, 1812, ch. 102, 2 Stat. 755, 755 (declaring war between the United States and Great Britain). If legislators had believed that the Constitution authorized the President to declare war, they would have told presidents to declare war using their own authority.
92. See Letter from Thomas Jefferson to James Madison, supra note 51, at 392, 397 (discussing the transfer of the Declare War power from the Executive to the Legislative Branch in the United States government to avoid letting the "Dog of war" loose).
93. As discussed in subsection V(A)(3)(a), Congress's Declare War monopoly does not extend to defensive measures (such as repelling an invasion) because such operations do not constitute a declaration of war. Hence, when the President orders the military to defend itself and U.S. territory, the President has not declared war and has not intruded upon an exclusive congressional power.
94. *258-59 (defining letters of marque and reprisal as letters authorizing the subjects of one state who have been "oppressed and injured by those of another" to obtain a taking by "passing the frontiers" or to obtain "a taking in return" in satisfaction of a wrong). It may well have been that letters of reprisal originally were issued to permit the seizure of another nation's property within the territory of the sovereign issuing the letter of reprisal.
95. See STEVEN C. NEFF, WAR AND THE LAW OF NATIONS 78 (2005) (explaining that a letter of reprisal was "an official authorisation to the victim, by his ruler, allowing him to seize property belonging to fellow-nationals of the thief who were resident in the sovereign's jurisdiction"). Over time, letters of marque and reprisal came to be understood as the power to seize property on the high seas.
96. See id. at 80-81 (documenting the emergence of the term "letters of marque" to describe letters of reprisal that authorized the holder to seize property not just inside the territory of the issuing sovereign, but also on the high seas).
97. See NEFF, SUPRA note 63, at 77-78 (explaining that letters of reprisal authorized the taking of property from the fellow nationals of a wrongdoer "[i]f satisfaction could not be obtained from the thief himself at the time of the offence" because "the wrong being remedied was not, strictly speaking, the original theft, but rather the subsequent denial of justice-a failure for which the foreign state was responsible, and, by extension, all of its members").
98. Id. at 77-79.
99. See id. at 109 ("During [the late 1700s], the common practice of states was to issue letters of marque not, in the medieval fashion, during peacetime to a single individual as a measure of reprisal, but instead during war as a means of augmenting the issuing state's naval capacity on short notice.").
100. Id.
101. Id. at 109;
102. HENRY WHEATON, A DIGEST OF THE LAW OF MARITIME CAPTURES AND PRIZES 14 (New York, R. M'Dermut & D.D. Arden 1815).
103. See, e.g., Act of June 18, 1812, ch. 102, 2 Stat. 755 (declaring war and authorizing the President to grant letters of marque and reprisal).
104. *258.
105. See 4 JOURNALS OF THE CONTINENTAL CONGRESS 250, 251-54 (Worthington Chauncery Ford ed., 1906) (entry for Apr. 3, 1776) (resolving that blank commissions of marque and reprisal be sent to states for distribution). Several volumes of the Journals of the Continental Congress are cited in this Article; each has been reproduced by the Library of Congress and is available at http://lcweb2.loc.gov/ammem/amlaw/ lwjclink.html.
106. ARTS. OF CONFEDERATION art. IX ("The United States in Congress assembled, shall have the sole and exclusive right and power... of granting letters of marque and reprisal in times of peace.").
107. *258 ("[O]ur laws have in some respects armed the subject with powers to impel the prerogative; by directing the ministers of the crown to issue letters of marque and reprisal upon due demand....").
108. U.S. CONST. art. I, § 8, cl. 11.
109. *258, the Crown still had to actually grant them. As far as I know, the Parliament never asserted that it could grant letters via statute.
110. See, e.g., 11 ANNALS OF CONG. 12 (1801) (reporting that President Jefferson left it to Congress to decide how to respond to Tripoli's declaration of war);
111. James Madison, Special Message to Congress (June 1, 1812), in 8 THE WRITINGS OF JAMES MADISON, supra note 22, at 192, 192-200 (reporting James Madison's request for direction from Congress on whether the United States should wage war with Great Britain).
112. See, e.g., Act of June 18, 1812, ch. 102, 2 Stat. 755 (granting the President the power to issue letters of marque and reprisal); Act of Feb. 6, 1802, ch. 4, § 3, 2 Stat. 129, 130 (granting the President the power to grant special commissions to private armed vessels to "subdu[e], seiz[e], tak[e], and bring[] into port, any Tripolitan vessel, goods or effects").
113. Letter from Alexander Hamilton to James McHenry (May 17, 1798), in 21 THE PAPERS OF ALEXANDER HAMILTON 461, 461-62 (Harold C. Syrett ed., 1974).
114. Id.
115. Id.
116. When Congress declares war but fails to authorize the capture of enemy property, interesting questions arise about whether the President unilaterally can authorize such seizures. Perhaps in declaring war, Congress implicitly and inevitably grants the President the authority to use the military to capture enemy property, whether it is owned by the enemy government or by private parties. Whether the President can authorize private parties to capture enemy property after Congress has declared war seems more difficult. In Brown v. United States, Chief Justice Marshall argued that because Congress had not authorized the capture of British property during the War of 1812, the seizure of such property by private citizens was unauthorized. 12 U.S. (1 Cranch) 110, 128-29 (1814).
117. Justice Joseph Story dissented on the grounds that once Congress declared war, the President could take any measure not barred by Congress to defeat the enemy, including capturing enemy property and authorizing citizens to capture it as well. Id. at 146-48, 151-52 (Story, J., dissenting). Whether Marshall or Story had the better argument in Brown does not matter for our purposes. Neither supposed that the President had a constitutional right to capture foreign property or to regulate such captures. They were merely arguing over the train of implied authority that may follow a generic
118. See John Yoo, Transferring Terrorists, 79 NOTRE DAME L. REV. 1183, 1201-02 (2004) (arguing that history, legal precedent, and international law indicate that Article I, Section Eight, Clause Eleven was meant to apply to the taking of property generally, but did not extend to people);
119. see also BOUVIER'S LAW DICTIONARY 150 (William Edward Baldwin ed., Banks-Baldwin Law Publ'g Co. 1934) (1839) (defining capture as "taking of property by one belligerent from another"). This congressional power is not, as some imagine, a power concerning the capture of enemy soldiers or sailors generally. This becomes clear when one consults treatises of the era, which discuss the capture of enemy property and the treatment of enemy prisoners in different chapters. For instance, Cornelius Bynkershoek wrote quite a bit about the capture of enemy property. 2 CORNELIUS VAN BYNKERSHOEK, QUAESTIONUM JURIS PUBLICI LIBRI DUO 32-123 (James Brown Scott ed., Tenney Frank trans., Clarendon Press 1930) (1737). His discussion of prisoners precedes his discussion of captures. Id. at 26-31. In that short discussion, he considers how nations swap, ransom, and sometimes enslave prisoners of war. Id. Vattel has the same dichotomy, discussing prisoners in Chapter Eight of Book III and then discussing captures in Chapter Nine.
120. See EMER DE VATTEL, THE LAW OF NATIONS 346, 364 (London, G.G. & J. Robinson 1797) (discussing rights against enemy combatants and then, separately, rights against enemy property). American capture treatises also focus on property and not on prisoners generally.
121. See, e.g., RICHARD LEE, A TREATISE OF CAPTURES IN WAR (London, Clarke & Sons, 2d ed. 1803) (1759) (reviewing the rules surrounding wartime capture of enemy property);
122. WHEATON, supra note 68 (speaking on capture of enemy property without discussing rules surrounding the capture of prisoners);
123. see also 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 100-16 (John M. Gould ed., Boston, Little, Brown, & Co. 1896) (1826) (discussing property subject to capture). Finally, early congressional statutes that established capture law created rules related to the capture of property but created no rules related to the capture of prisoners.
124. See 21 JOURNALS OF THE CONTINENTAL CONGRESS 1151, 1153-58 (Gaillard Hunt ed., 1912) (entry for Dec. 4, 1781) (delineating the rules surrounding capture of enemy property on the seas, but making no mention of rules surrounding capture of enemy soldiers). The only time the Capture power would permit the regulation of the capture of people is when a state treated those captured as slaves or where captors were required to take custody of enemy nationals found with the captured property. Yet this ability to regulate the individuals taken in conjunction with property does not imply a power to regulate the capture of enemy nationals generally. As should be obvious, not all captures of enemy military personnel would take place in conjunction with the capture of enemy property. When a nation's military captured enemy personnel without also seizing property, the power to regulate the capture of enemy property would not permit the regulation of the capture of enemy soldiers. In any event, as discussed in Part III, Congress has power to regulate the treatment of captured enemy military personnel pursuant to its power to regulate the United States armed forces. So while the Capture power does not grant Congress the power to control the treatment of captured enemy personnel, Congress has that power pursuant to its authority over the government and regulation of the military.
125. See, e.g., Act of June 25, 1798, ch. 60, 1 Stat. 572 (authorizing private merchant vessels to seize French armed vessels).
126. See LEE, supra note 82, at 64, 124 (describing what types of property-enemy and neutral-might be captured in wartime).
127. See Act of June 25, 1798, ch. 60, 1 Stat. at 572 (discussing division of recaptured American property);
128. 21 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 82, at 1151, 1155-56 (entry for Dec. 4, 1781) (discussing the recapture of property).
129. See, e.g., 4 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 71, at 250, 254 (entry for Apr. 4, 1776) (requiring that the capturing party keep all documents and hand them over to a court).
130. See 21 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 82, at 1151, 1156-58 (entry for Dec. 4, 1781) (ordering a small fraction of the spoils to the government and the rest to be divided by rank among the crew).
131. See LEE, supra note 82, at 216 (emphasizing the importance of courts in evaluating whether property was captured legitimately);
132. see also Act of Feb. 6, 1802, ch. 4, § 4, 2 Stat. 129, 130 (providing that courts would adjudge whether capture occurred according to the rules).
133. For instance, Congress provided rules for property jointly owned by enemy nationals and the nationals of other states. 21 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 82, at 1151, 1155 (entry for Dec. 4, 1781) (mandating that in most cases such property be sold and proceeds divided proportionally between the non-enemy owner and the U.S. Treasury).
134. Act of June 26, 1812, ch. 107, § 4, 2 Stat. 759, 759;
135. Act of Feb. 6, 1802, ch. 4, § 4, 2 Stat. 129, 130;
136. Act of June 25, 1798, ch. 60, § 2, 1 Stat. 572, 572.
137. See, e.g., Prakash & Ramsey, supra note 10, at 340-45 (citing various examples of the lack of legal enforcement of President Washington's Proclamation of Neutrality).
138. U.S. CONST. art. I, § 8, cl. 12.
139. Id. cls. 15-16.
140. Id. cl. 14.
141. *262.
142. *410.
143. *412.
144. 2 JAMES BURGH, POLITICAL D ISQUISITIONS 343 (London, E. & C. Dilly 1774).
145. 2 JOHN R. MCCULLOCH, A STATISTICAL ACCOUNT OF THE BRITISH EMPIRE: EXHIBITING ITS EXTENT, PHYSICAL CAPACITIES, POPULATION, INDUSTRY, AND CIVIL AND RELIGIOUS INSTITUTIONS 540 (London, Charles Knight & Co. 1837).
146. Bill of Rights, 1689, 1 W. & M., c. 6 (Eng.), reprinted in THE EIGHTEENTH CENTURY CONSTITUTION 1688-1815, at 28 (E. Neville Williams ed., Cambridge Univ. Press 1970) (1960).
147. In its Mutiny Acts, Parliament kept a chokehold on the array by authorizing a domestic army for one year only. Thereafter, Parliament annually revisited the question of whether to continue a domestic army. See John Childs, The Restoration Army 1660-1702, in THE OXFORD ILLUSTRATED HISTORY OF THE BRITISH ARMY 48, 54 (David Chandler ed., 1994) ("[T]he Mutiny Act gained importance during William III's reign as parliament found it a convenient device for annually regulating the affairs and abuses of the army."). Americans were well aware that Parliament determined whether there would be an army within England. See THE FEDERALIST NO. 41 (James Madison), supra note 36, at 259 (describing Parliament's power over the army);
148. James Iredell, Marcus, Answers to Mr. Mason's Objections to the Constitution, in 3 THE FOUNDERS' CONSTITUTION 145, 146 (Philip B. Kurland & Ralph Lerner eds., 1987) ("[I]t is... in the power of Parliament to authorize the keeping up of any number of troops for an indefinite time.").
149. See Childs, supra note 101, at 48, 55 ("[Charles II] had very little money and the English constitution insisted that the Crown could only raise additional revenue through parliament.").
150. The Federal Farmer No. 18 (Jan. 25, 1788), in 3 THE FOUNDERS' CONSTITUTION, supra note 101, at 154, 154.
151. THE FEDERALIST No. 26 (Alexander Hamilton), supra note 36, at 169.
152. U.S. CONST. art. I, § 8, cls. 12-13 ("The Congress shall have the Power... To raise and support Armies... [and] To provide and maintain a Navy....").
153. Act of Apr. 30, 1790, ch. 10, 1 Stat. 119 (repealed 1795).
154. Act of Mar. 27, 1794, ch. 12, 1 Stat. 350.
155. Id.
156. Act of June 30, 1798, ch. 64, § 5, 1 Stat. 575, 576.
157. U.S. CONST. art. I, § 8, cl. 12.
158. Act of Apr. 30, 1790, § 1, 1 Stat. at 119.
159. Act of Mar. 27, 1794, § 9, 1 Stat. at 351.
160. Of course, Congress may take intermediate steps short of disestablishment. Congress can reduce the size and strength of both the Army and Navy. The constitutional prohibition on army financing beyond two years implies not only a power to increase or end such funds, but also a power to decrease such funds.
161. U.S. CONST. art. II, § 2, cl. 2 ("[The President] 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....").
162. See U.S. CONST. art. I, § 8, cl. 12 (granting Congress the power "[t]o raise and support Armies," but also providing that "no Appropriation of Money to that Use shall be for a longer Term than two Years...").
163. U.S. CONST. art. I, § 9, cl. 7.
164. THE FEDERALIST NO. 24 (Alexander Hamilton), supra note 36, at 158. In Federalist No. 26, Hamilton noted that state constitutions had the same schema.
165. See id. NO. 26, at 170 ("The power of raising armies at all under [state] constitutions can by no construction be deemed to reside anywhere else than in the legislatures themselves.").
166. See 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 55, at 497 (providing George Nicholas's comments "that the army and navy were to be raised by Congress, and not by the President");
167. 4 id. at 107-08 (reporting the comments of James Iredell that Congress, not the President, has the power to declare war and raise armies).
168. See Letter from George Washington to the House of Representatives (Aug. 10, 1789), in 1 JOURNAL OF THE HOUSE OF REPRESENTATIVES 75, 76 (Washington, D.C., Gales & Seaton 1815) (asking Congress to authorize the Army's continued existence).
169. See Act of Mar. 27, 1794, ch. 12, 1 Stat. 350 (providing for the Navy).
170. See 3 STORY, supra note 47, § 1178, at 62; § 1486, at 342 (noting that the power to raise and fund an army rests exclusively with Congress).
171. E.g., Act of June 30, 1798, ch. 64, § 3, 1 Stat. 575, 576.
172. E.g., Act of May 28, 1798, ch. 47, § 3, 1 Stat. 558, 558.
173. *411 (describing the Monarchy's power over the militia).
174. *412 (describing the historical debate of the limits of the Monarchy's militia power).
175. 1661, 13 Car. 2, c. 6, § 1 (Eng.).
176. See Joyce Lee Malcolm, Charles II and the Reconstruction of Royal Power, 35 HIST. J. 307, 323 & n. 67 (1992) (discussing the limitations on the King's power over the militia as evidenced by the militia acts passed by Parliament in 1661, 1662, and 1663).
177. See 1661, 13 Car. 2, c. 6, § 2 (Eng.) (providing that the "advice and consent" of Parliament is required to exercise the "militia and land forces" of England);
178. see also 1662, 13 & 14 Car. 2, c. 3, § 7 (Eng.) (codifying a maximum five-shilling fine or twenty-day imprisonment for each instance that a soldier does not perform his duties).
179. See 1663, 15 Car. 2, c. 4, § 7 (Eng.) (providing specific munitions that "musqueteers" and horsemen must bring to "every muster, training and exercise"); 1662, 13 & 14 Car. 2, c. 3, § 26 (dictating the "offensive arms," "defensive arms," and "furniture for the horse" that must be brought to every muster and exercise).
180. See 1661, 13 Car. 2, c. 6, § 2 (Eng.) (providing that the militia should be "ordered and managed, according to such commissions and instructions as they formerly have, or from time to time shall receive from his Majesty").
181. See U.S. CONST. art. I, § 8, cls. 1, 15 ("The Congress shall have Power... [t]o provide for calling forth the Militia....").
182. See id. art. II, § 2, cl. 1 ("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....").
183. See, e.g., Act of Nov. 29, 1794, ch. 1, 1 Stat. 403, 403 (noting that the President is authorized by Congress to call forth the militia if, in his judgment, the militia is needed to "suppress unlawful combinations, and to cause the laws to be dutifully executed").
184. See George Washington, A Proclamation (Aug. 7, 1794), in 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 158, 159-60 (James D. Richardson ed., Washington, Gov't Printing Office 1896) (indicating that Washington was working within the framework of existing militia laws in order to call forth the militia).
185. See U.S. CONST. art. I, § 8, cl. 16 (granting Congress power 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").
186. *262;
187. see also 1661, 13 Car. 2, c. 6, § 1 (Eng.) ("[T]he sole supreme government, command and disposition of the militia, and of all forces sea and land, and of all forts...is...the undoubted right of his Majesty.").
188. See 27 JOURNALS OF THE CONTINENTAL CONGRESS 529, 538 (Gaillard Hunt ed., 1928) (entry for June 3, 1784) (reporting that "a body of troops, to consist of seven hundred noncommissioned officers and privates" was "immediately and indispensably necessary for taking possession of the western posts").
189. See Act of Sept. 29, 1789, ch. 25, § 5, 1 Stat. 95, 96 (repealed 1790) (stating that the militia was sent to the frontier "for the purpose of protecting the inhabitants of the frontiers of the United States from the hostile incursions of the Indians").
190. See U.S. CONST. art. I, § 8, cl. 17 (granting Congress the power to "exercise exclusive Legislation in all Cases whatsoever,... over such District... as may... become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased... for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings...");
191. id. art. IV, § 3, cl. 2 (stating that Congress can make all rules "respecting the... Property belonging to the United States").
192. See id. (authorizing the President to call forth the militia to protect inhabitants of the frontiers);
193. Act of Apr. 30, 1790, ch. 10, § 16, 1 Stat. 119, 121 (repealed 1795) (authorizing the President to call forth the militia to help the troops currently in service).
194. See Act of May 9, 1794, ch. 25, 1 Stat. 367 (providing for the fortification of additional harbors);
195. Act of Mar. 20, 1794, ch. 9, §§ 1-2, 1 Stat. 345, 345-46 (allowing the President discretion to fortify certain harbors and garrison troops there);
196. see also Act of July 11, 1798, ch. 72, § 6, 1 Stat. 594, 596 (permitting the President to station marines in harbor forts and garrisons).
197. U.S. CONST. art. I, § 8, cl. 17.
198. Act of Apr. 30, 1790, §§ 3, 7, 1 Stat. at 112, 113.
199. Act of May 7, 1800, ch. 46, § 3, 2 Stat. 61, 62.
200. U.S. CONST. art. I, § 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law....").
201. As discussed in Part IV, the President may create supplementary rules regulating conduct on military bases, so long as no liability or punishment attaches to violations of those rules.
202. *261-62.
203. See Childs, supra note 101, at 48, 53-54 (stating that because the army was not recognized within the law of England, the articles of war could not be enforced against the soldiers before the English courts).
204. Id.
205. See id. (noting that while pure military offenses were adjudged before courts-martial, stoppage of pay, suspension, or dismissal were the only options for punishment).
206. See id. (referring to the awkwardness that resulted during James II's reign when it was difficult to punish the considerable number of soldiers that deserted after 1685).
207. See MARKUS EDER, CRIME AND PUNISHMENT IN THE ROYAL NAVY OF THE SEVEN YEARS' WAR, 1755-1763, at 41-42 (2004) (explaining that, between 1648 and 1649, the passage of the Laws and Ordinances Martial Code was the first of several early attempts to enforce discipline in the British Navy).
208. See 6 H.C. JOUR. 156 (1802) (Eng.) (listing the requirements and proscriptions of sailors and punishments for breaking the rules).
209. See 1661, 13 Car. 2, c. 9 (Eng.) (providing penalties and punishments for a variety of enumerated crimes and transgressions, and authorizing the Crown to enforce them).
210. SEE 1688, 1 W. & M. 3, c. 5 (Eng.).
211. Id. (entitled "An act for punishing officers and soldiers who shall mutiny or desert their Majesties service...").
212. See MARK A. THOMPSON, A CONSTITUTIONAL HISTORY OF ENGLAND 1642 TO 1801, at 293 (1938) ("[T]he Act was in some respects vague. It made no mention of the King's power, if any, to issue articles of war, although it was necessary that he should do so if discipline was to be maintained.").
213. See id. at 295-96 (describing how, over time, Parliament granted the Crown greater powers over soldier discipline and the authorization to apply the articles of war).
214. See THOMPSON, supra note 157, at 294 ("During the interval [when the Mutiny Act lapsed] the Army was kept under tolerable discipline, but how it was done is a mystery.");
215. Childs, supra note 101, at 48, 54 (explaining that because the Mutiny Act gave legal recognition to the army and its courts-martial, the lapse of the Act meant the army was no longer recognized under the law, thus limiting the army's punishments to stoppage of pay, suspension, or dismissal). In the American colonies, governors could execute the "law martial" only in times of war and, even then, only with the consent of their executive councils. See, e.g., EVARTS BOUTELL GREENE, THE PROVINCIAL GOVERNOR IN THE ENGLISH COLONIES OF NORTH AMERICA 99 (Longmans, Green & Co. 1907) (1898) ("The [Massachusetts] governor... was not... permitted... to declare martial law except in time of war, and then only with the advice and consent of the council.").
216. See 3 JOURNALS OF THE CONTINENTAL CONGRESS 378, 378 (Worthington Chauncey Ford ed., 1905) (entry for Nov. 28, 1775) (creating rules for the "Regulation of the Navy"); 2 id. at 111, 111-12 (entry for June 30, 1775) (creating articles of war for the Army).
217. See 3 id. at 378, 381 (entry for Nov. 28, 1775) (prohibiting desertion and the destruction of enemy papers and requiring courageous fighting);
218. 2 id. at 113, 116 (entry for June 30, 1775) (outlawing mutiny and desertion).
219. ARTS. OF CONFEDERATION art. IX, § 4.
220. See Act of July 1, 1797, ch. 7, § 8, 1 Stat. 523, 525 (providing that sailors and marines shall be governed by rules established by the Continental Congress in 1775);
221. Act of Sept. 29, 1789, ch. 25, § 4, 1 Stat. 95, 96 (providing that the articles of war created by the Continental Congress would continue to apply to the Army under the new Constitution). In 1794, Congress authorized the construction of six vessels. Act of March 27, 1794, ch. 12, 1 Stat. 350. Three years later, a new statute was needed to continue construction. See Act of July 1, 1797, §1,1 Stat. at 523 (giving the President the authority to man and employ Navy ships). By the time the naval vessels came online, Congress had created articles of war to regulate naval discipline.
222. 5 U.S. (1 Cranch) 1 (1801).
223. Id. at 28.
224. Letter from Henry Knox to George Washington (Oct. 9, 1792), in 11 THE PAPERS OF GEORGE WASHINGTON, supra note 59, at 212, 212.
225. U.S. CONST, art. I, § 8, cl. 14.
226. N. BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (London, 25th ed. 1783). As one might expect, the dictionary definitions of "government" and "regulation" parallel the definitions of "govern" and "regulate." Samuel Johnson's dictionary had much the same meanings for these words. 1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (London, 7th ed. 1783) (defining "govern" as "[t]o regulate; to influence; to direct;... [t]o manage; to restrain" and "regulate" as "[t]o adjust by rule or method;... [t]o direct").
227. 22 U.S. (9 Wheat.) 1 (1824).
228. Id. at 196.
229. I treat the congressional power to organize, arm, and discipline the militia, see U.S. CONST, art. I, § 8, cl. 16, as providing much the same power that Congress has under its power to "make Rules for the Government and Regulation of the land and naval Forces." U.S. CONST, art. I, § 8, cl. 14.
230. U.S. CONST, art. I, § 8, cl. 14.
231. See 27 JOURNALS of the CONTINENTAL CONGRESS, supra note 137, at 340 (ordering that von Steuben's system of regulations be adopted for the militia); 13 JOURNALS OF THE CONTINENTAL CONGRESS 384, 384-85 (Worthington Chauncey Ford ed., 1909) (entry for Mar. 29, 1779) (ordering that von Steuben's system of regulations be adopted for the Army).
232. 13 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 173, at 385.
233. Regs, for the Order and Discipline of Troops of the U.S., ch. 1, at 5 (Mar. 29, 1779). The Regulations are reproduced in JOSEPH R. RILING, BARON VON STEUBEN & HIS REGULATIONS (1966).
234. Regs, for the Order and Discipline of Troops of the U.S., chs. 5, 18, 23, at 10-30, 82-87, 117-71 (providing specific and explicit examples of marching orders and firing commands, and instructions for a host of other disciplines to be instilled in the militia).
235. Id. ch. 17, at 80-81.
236. Id. ch. 5, at 26-28.
237. Id. ch. 25, at 128-54.
238. Id. ch. 25, at 128-29.
239. Id. ch. 25, at 151, 151-52.
240. Act of Sept. 29, 1789, ch. 27, § 4, 1 Stat. 95, 96 ("[S]aid troops shall be governed by the rules and articles of war which have been established by the United States in Congress assembled....").
241. The 1792 Militia Act subjected the militia to the same rules as the Army and hence incorporated the von Steuben manual. See Act of May 2, 1792, ch. 28, § 4, 1 Stat. 264, 264. An act passed less than a week later expressly incorporated the von Steuben manual, but also permitted deviations from the rules. See Act of May 8, 1792, ch. 33, § 7, 1 Stat. 271, 273.
242. The constitutional prohibition on preferential port regulations in Article I, Section Nine illustrates the point. Including such a provision implies that the Commerce Clause power would have otherwise permitted Congress to direct commerce to certain ports. Compare U.S. CONST, art. I, § 8, cl. 3, with id. § 9, cl. 6.
243. BILL OF RIGHTS (1689), reprinted in THE EIGHTEENTH CENTURY CONSTITUTION 1688-1815, at 26, 28 (E. Neville Williams ed., 1960).
244. Act of Settlement, 1700, 12 & 13 W. & M. 3, c. 2, § 3 (Eng.).
245. 2 HENRY HALLAM, THE CONSTITUTIONAL HISTORY of ENGLAND 424 (Garland Publ'g 5th ed. 1978) (1846).
246. Sometimes particular statutory sections made this evident; other times the title of the acts made it clear where the Army was to be stationed. See Act of Mar. 5, 1792, ch. 9, 1 Stat. 241, 241 (entitled "An Act for making farther and more effectual Provision for the Protection of the Frontiers of the United States" and providing that regiments authorized by the Act shall "be discharged as soon as the United States shall be at peace with the Indian tribes"); Act of Apr. 30, 1790, ch. 10, § 16, 1 Stat. 119, 121 (authorizing the President to use the militia "for the purpose of aiding the troops now in service,... in protecting the inhabitants of the frontiers of the United States"); Act of Sept. 29, 1789, ch. 25, §§ 1, 5, 1 Stat. 95, 95-96 (adopting the Army establishment put in place by the Continental Congress along the frontier and noting that the militia could be used to protect the inhabitants of the frontier).
247. See Act of Mar. 3, 1791, ch. 28, 1 Stat. 222, 222 (dedicating an entire session-law chapter to raising and adding another regiment to the Army to improve frontier protection and declaring explicitly that the additional regiment was "for the protection of the frontiers").
248. See Act of Mar. 20, 1794, ch. 9, § 1, 1 Stat. 345, 346, 345-46 (allowing the President to fortify the harbors "at such time or times, as he may judge necessary").
249. See id. § 2, 1 Stat. at 346 (proclaiming that it "shall be lawful" to provide armaments to the harbor fortifications).
250. Act of May 9, 1794, ch. 24, § 6, 1 Stat. 366, 367.
251. Act of July 1, 1797, ch. 7, § 1, 1 Stat. 523, 523-24.
252. See Act of Apr. 27, 1798, ch. 31, § 1, 1 Stat. 552, 552 (authorizing the President to arm, fit out, and man vessels at his discretion).
253. Act of July 1, 1797, § 7, 1 Stat. at 525;
254. see also Act of June 22, 1798, ch. 55, § 1, 1 Stat. 569, 569 (noting that revenue cutters were to be used "near the sea coast").
255. Act of May 4, 1798, ch. 39, § 2, 1 Stat. 556, 556.
256. For a comprehensive history of that now-obscure war, see generally ALEXANDER DECONDE, THE QUASI- WAR: THE POLITICS and DIPLOMACY of the UNDECLARED WAR with FRANCE (1966).
257. Act of Mar. 3, 1801, ch. 20, § 2, 2 Stat. 110, 110. Less than a year later, Congress made it lawful for the President to equip, man, and employ all naval vessels to protect against Tripolitan depredations. Act of Feb. 6, 1802, ch. 4, 2 Stat. 129, 129-30. Presumably, this included all vessels previously laid up at the direction of Congress.
258. Act of May 2, 1792, ch. 28, § 4, 1 Stat. 264, 264;
259. see also Act of May 9, 1794, ch. 27, § 4, 1 Stat. 367, 367-68 (limiting tours of duty for the drafted militia to three months after their arrival at the place of rendezvous).
260. Act of Nov. 29, 1794, ch. 1, § 1, 1 Stat. 493, 493. This statute was enacted because the prior act limited the time the President might call forth the militia, and hence a new statute was required to permit the continued federal use of the militia. See Washington, supra note 134, at 165 (encouraging Congress to act quickly to consider extending the rapidly approaching deadline for employment of the militia).
261. Section IV(A)(3) argues that the President may order the use of force that does not rise to the level of an informal declaration of war.
262. See supra note 171.
263. See Act of June 5, 1794, ch. 50, §§ 5, 7; 1 Stat. 381, 384 (repealed 1818) (forbidding any person within the jurisdiction of the United States from "provid[ing] or prepar[ing] the means for any military expedition or enterprise to be carried on from thence against the territory or dominions of any foreign prince or state with whom the United States are at peace" and authorizing the President to use the armed forces and militia to prevent neutrality violations).
264. See Act of Mar. 1, 1890, ch. 24, § 1, 2 Stat. 528, 528 (empowering the President to "compel" ships to depart a particular harbor where they violate the embargo); Act of Dec. 17, 1813, ch. 1, § 13, 3 Stat. 88, 92 (authorizing "public and private armed vessels of the United States to capture and seize on the high seas or elsewhere any ship or vessel which shall have violated any of the provisions of this [embargo] act"); Act of Apr. 14, 1812, ch. 55, § 2, 2 Stat. 707, 708 (granting the President the authority to "employ any part of the land or naval forces, or militia of the United States or of the territories thereof... for the purpose of detaining, taking possession of, and keeping in custody, any such ship or vessel" found in violation of the embargo); Act of June 4, 1794, ch. 41, §1,1 Stat. 372, 372 (authorizing the President to "lay an embargo on all ships and vessels in the ports of the United States, or upon ships and vessels of the United States, or the ships and vessels of any foreign nation, under such regulations as the circumstances of the case may require").
265. See Act of Mar. 2, 1807, ch. 22, § 7, 2 Stat. 426, 428 (authorizing seizure of vessels "having on board any negro, mulatto, or person of colour, for the purpose of selling them as slaves" within the jurisdiction of the United States).
266. See Act of Feb. 12, 1813, ch. 1, § 1, 3 Stat. 472, 472 (granting the President authority "to occupy and hold all that tract of country called West Florida").
267. See Act of Apr. 20, 1818, ch. 88, § 9, 3 Stat. 447, 449 (enabling the President to "compel any foreign ship or vessel to depart the United States in all cases in which, by the laws of nations or the treaties of the United States, they ought not to remain within the United States").
268. See Act of May 15, 1820, ch. 110, § 1, 3 Stat. 597, 597 (limiting foreign vessels from docking in all ports of the United States except those enumerated in the section).
269. See Act of Mar. 3, 1819, ch. 77, § 2, 3 Stat. 510, 512-13 (authorizing the President "to instruct the commanders of the public armed vessels of the United States to subdue, seize, take, and send into any port of the United States, any armed vessel or boat... which shall have attempted or committed any piratical aggression").
270. See Barron & Lederman, supra note 9, at 733 (claiming that the Capture power includes the power to regulate prisoners).
271. See supra note 82.
272. Id.
273. See 1661, 13 Car. 2, c. 9, § 9, (Eng.) ("If any foreign ship or vessel shall be taken as prize, that shall not fight or make resistance, that in that case, none of the captains, masters or mariners being foreigners, shall be stripped of their clothes, or in any sort pillaged, beaten or evil intreated, upon pain....").
274. See The 1749 Naval Act, 22 Geo. 2, c. 33, available at http://www.pdavis.nl/NDA 1749.htm ("[N]one of the [crewmembers] on board fa prize ship] shall be stripped of their Cloaths, or in any way pillaged, beaten, or evil intreated....").
275. See Art. II of 1749 Naval Act, 22 Geo. 2, c. 33 (Eng.) (creating rules "for the regulating and better government of his Majesty's navies, ships of war, and forces by sea"); 1661, 12 Car. 2, c. 9 (Eng.) (establishing "articles and orders for the regulating and better government of his Majesties navies [sic] ships of war, and forces by sea").
276. The Continental Congress regulated the treatment of prisoners as early as 1776, when it instructed privateers not to mistreat prisoners. See 4 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 71, at 250, 254 (entry for Apr. 4) (barring killing or maiming in "cold blood"; torturing; and mistreating prisoners "cruelly, inhumanely, and contrary to common usage, and the practice of civilized nations"). Congress apparently did not impose similar constraints on the regular Navy or Army. That failure might have reflected a sense that neither was likely to mistreat enemy prisoners. Generals and admirals understood better than anyone that mistreating enemy prisoners would cause the enemy to mistreat American prisoners. Indeed, the Continental Congress eventually would require retaliation in response to British mistreatment of prisoners.
277. See infra note 227.
278. Act of June 25, 1798, ch. 60, § 4, 1 Stat. 572, 573.
279. Act of June 28, 1798, ch. 62, § 4, 1 Stat. 574, 575.
280. Act of July 9, 1798, ch. 68, § 8, 1 Stat. 578, 580.
281. Act of Feb. 28, 1799, ch. 18, § 1, 1 Stat. 624, 624.
282. Act of Mar. 3, 1799, ch. 45, 1 Stat. 743, 743 (repealed 1813).
283. Id. A little more than a year later, Congress provided in its new naval articles of war that "[n]o person in the navy shall strip of their clothes, or pillage, or in any manner maltreat persons taken on board a prize, on pain of such punishment as a court martial shall adjudge." Act of Apr. 23, 1800, ch. 33, art. IX, § 1, 2 Stat. 45, 46. This statute arguably precluded the use of Navy personnel to retaliate, leaving open the possibility that Army and civilian personnel could retaliate against French citizens should the President use his authority under the statute permitting retaliation.
284. Letter from Thomas Jefferson to Archibald Stuart (Feb. 13, 1799),
285. Act of July 6, 1812, ch. 128, 2 Stat. 777, 777 (repealed 1817).
286. See Act of Mar. 3, 1813, ch. 61, 2 Stat. 829 (authorizing the President to retaliate via war).
287. Id. at 829-30.
288. Id. at 830. These acts permitting retaliation and prisoner exchanges had precursors during the Articles of Confederation, when the Continental Congress ordered the Commander in Chief to engage in acts of retaliation against British soldiers if the British put to death, tortured, or otherwise mistreated American prisoners or hostages.
289. See 19 JOURNALS OF THE CONTINENTAL CONGRESS 25, 28 (Gaillard Hunt ed., 1912) (entry for Jan. 5, 1781) (ordering the Commander in Chief to treat British prisoners as American prisoners were being treated by the British); 5 JOURNALS OF THE CONTINENTAL CONGRESS 531, 539 (Worthington Chauncey Ford ed., 1906) (entry for July 10, 1776) (noting congressional resolutions authorizing the Commander in Chief to retaliate against the British). Likewise, the Continental Congress authorized the Commander in Chief to enter into a prisoner exchange agreement with the British. 13 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 173, at 272, 280 (entry for Mar. 5, 1779).
290. Though I later argue that the President has the constitutional power to capture and incarcerate enemy soldiers, see infra subpart V(A), the statutes from the early nineteenth century could be read as suggesting that the President had no such power. Because the statutes "authorized" the Executive Branch to secure prisoners, the statutes could be read as suggesting that in their absence, the President had no ability to make prisoners of enemies.
291. See infra Part V.
292. See, e.g., Act of June 18, 1812, ch. 102, 2 Stat. 755, 755 (declaring war between "the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories" and generally authorizing the use of the armed forces without any constraints).
293. See, e.g., English Declaration of War Against Spain, in 3 NAVAL AND MILITARY MEMOIRS OF GREAT BRITAIN FROM 1727 TO 1783, at 340, 341-42 (Robert Beatson ed., London, Longman, Hurst, Rees & Orme 1804) [hereinafter NAVAL AND MILITARY MEMOIRS] (declaring war against Spain by both land and sea).
294. See French Declaration of War Against England, in NAVAL AND MILITARY MEMOIRS, supra note 231, at 44, 45 (ordering citizens to attack the subjects of the King of England).
295. GEORGE F. MARTENS, A COMPENDIUM on the LAW of NATIONS 287 (William Cobbett trans., London, Cobbett & Morgan 1802).
296. Id.
297. See id. at 287-88 (describing the consequences of hostile action without proper authorization).
298. Id.
299. ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS and CONSTITUTIONAL POWER 122-23 (1976).
300. Id.
301. The absence of civilian participation in the war made sense because the civilians most likely to participate were the ones most likely to inflame the Indian invaders and make peace treaties impossible.
302. Act of July 9, 1798, ch. 68, § 1, 1 Stat. 578, 578-79. Congress granted further authority to the President to grant private ships special permissions to capture French ships, but these details do not change the limited nature of the war. Id. § 2, 1 Stat. at 579.
303. Id. § 1, 1 Stat. at 578.
304. Act of Feb. 6, 1802, ch. 4, § 2, 2 Stat. 129, 130.
305. Id. §§ 1-2, 2 Stat. at 129-30.
306. Act of Mar. 3, 1815, ch. 90, § 2, 3 Stat. 230, 230.
307. Act of June 18, 1812, ch. 102, 2 Stat. 755, 755.
308. See 5 JOURNAL OF THE SENATE OF THE UNITED STATES OF AMERICA 154, 154-56 (1821) (entry for June 12, 1812) (indicating a tied Senate vote on a motion to replace the proposed declaration of war with a more limited authority to use naval vessels to wage war).
309. Cf. Bas v. Tingy, 4 U.S. (4 Dall.) 37, 43 (1800) (opinion of Chase, J.) (noting that Congress had not authorized individuals to attack French citizens during the quasi-war against France).
310. See generally Act of June 26, 1812, ch. 107, 2 Stat. 759 (requiring that applicants for letters of marque and reprisal file a detailed written application with the Secretary of State and surrender a bond of at least five thousand dollars to the United States).
311. 6 U.S. (2 Cranch) 170 (1804).
312. Id. at 177-78.
313. Id. at 179.
314. Id. at 177-78.
315. 4 U.S. (4 Dall.)37(1800).
316. Id. at 43 (opinion of Chase, J.).
317. Id. at 45 (opinion of Paterson, J.).
318. FISHER, supra note 1, at 15 (quoting Letter from Henry Knox to William Blount (Nov. 26, 1792), in 4 THE TERRITORIAL PAPERS OF THE UNITED STATES 220, 221 (Clarence Edwin Carter ed., 1936)) ("[The President] does not conceive himself authorized to direct offensive operations against the Chickamaggas. If such measures are to be pursued they must result from the decisions of Congress who solely are vested with powers of War.").
319. See Letter from Henry Knox to William Blount (Dec. 29, 1794), in 4 AMERICAN STATE PAPERS 634, 635 (Walter Lowrie & Matthew St. Clair Clarke eds., Washington, Gales & Seaton 1832), available at http://lcweb2.1oc.gov/cgi-bin/ampage?collId= llsp&fileName=007/11sp007.db& recNum=4.
320. Thomas Jefferson, Report Relative to the Mediterranean Trade (Dec. 28, 1790), in 3 THE WRITINGS OF THOMAS JEFFERSON 94, 103-04 (Andrew A. Lipscomb ed., 1903).
321. SOFAER, supra note 237, at 139.
322. Act of June 13, 1798, ch. 53, § 3, 1 Stat. 565, 565-66.
323. Act of June 25, 1798, ch. 60, 1 Stat. 572.
324. Act of July 9, 1798, ch. 67, § 1, 1 Stat. 578, 578-79.
325. One might wonder why Congress would choose to de-escalate a conflict it previously authorized. After declaring war, Congress might think it prudent to limit the use of the Army as a means of signaling (or furthering) a possible conciliation. Or Congress might no longer approve of the conflict it previously sanctioned, either because legislators have had a change of heart or because the conflict has become unpopular.
326. See, e.g., Act of Mar. 3, 1815, ch. 90, 3 Stat. 230 (informally declaring war against Algeria); Act of June 18, 1812, ch. 102, 2 Stat. 755 (declaring war against the United Kingdom and authorizing the President to grant letters of marque and reprisal).
327. Act of Mar. 27, 1794, ch. 12, 1 Stat. 350. The act is best read as implicitly authorizing the President to use the expected Navy against the Algerians.
328. Act of Apr. 20, 1796, ch. 14, 1 Stat. 453.
329. Act of Feb. 27, 1800, ch. 10, § 6, 2 Stat. 7, 10, 9-10. Alexander DeConde has argued that all American military operations "were to expire when the commanders of the French ships stopped their depredations against American commerce." DECONDE, supra note 197, at 126. DeConde exaggerates, because not all war statutes provided as much. But clearly there was a general sense that Congress wished for a cessation of hostilities should France stop its attacks on American vessels.
330. 2 DAVID RAMSAY, HISTORY of the AMERICAN REVOLUTION 303 (Philadelphia, R. Aitken & Son 1789).
331. Id. at 303-04.
332. Washington subsequently noted that British commanders in America "are in a manner tied down by the resolves of their House of Commons to a defensive War only...." Letter from George Washington to the Count de Rochambeau (Aug. 16, 1782), in 10 THE WRITINGS OF GEORGE WASHINGTON 63, 64 (Worthington C. Ford ed., New York, G.P. Putnam's Sons 1891).
333. Cf. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (acknowledging that the First Amendment permits some reasonable time, place, and manner restrictions on the exercise of speech).
334. Given that the President is always free to negotiate a peace treaty with a declared enemy nation, Congress cannot require the President to meet any particular war objective. See U.S. CONST. art. II, § 2, cl. 2 (giving the President, with the advice and consent of the Senate, the authority to make treaties). The President might pursue congressional war objectives for a time and then negotiate and (with the Senate's consent) ratify a treaty that fails to satisfy all the objectives that Congress sought. Hence, Congress's power to set objectives should be regarded as the power to set maximum objectives, not the power to force the President to fulfill any one of the congressional objectives. In deciding whether to leave congressional objectives unfulfilled, the President will have to gauge whether the Senate is willing to accept fewer concessions from the enemy than Congress initially sought in its declaration of war.
335. See, e.g., 3 HUGO GROTIUS, ON THE LAW OF WAR and PEACE 253 (Kessinger Publ'g 2004) (1625) (contrasting "absolute declarations" with conditional declarations);
336. see also NEFF, supra note 63, at 105-06 (discussing conditional declarations).
337. See supra note 267 and accompanying text.
338. Act of July 9, 1789, ch. 68, 1 Stat. 578, 578.
339. E.g., Act of Mar. 3, 1815, ch. 90, 3 Stat. 230;
340. Act of Feb. 6, 1802, ch. 4, 2 Stat. 129, 130. Early declarations of war did not always specify the war's objectives.
341. See, e.g., Act of June 18, 1812, ch. 102, 2 Stat. 755 (declaring war against Great Britain without specifying the objectives of the war). Congress often limited the means of prosecuting a war, even though it did not always enumerate the war's aims.
342. See, e.g., id. (specifying the means to be used in the war against Great Britain). This lack of specification was sound because at a war's outset, Congress cannot foresee the course of the war. Goals that might seem realistic at the outset might seem implausible a few months into a war; other seemingly distant objectives might seem more obtainable only as the American military racks up a series of victories. Moreover, disclosing objectives may make it more difficult to secure such goals because the enemy may adopt countervailing measures.
343. For instance, in its declaration of war against Spain, Congress enacted the Teller Amendment, which provided that the United States had no territorial ambitions for Cuba. J. Res. 24, 55th Cong., 2d Sess., 30 Stat. 738, 739 (1898).
344. See Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, §3(a), 116 Stat. 1498, 1501 (specifying that the objectives of the use of force were defending the United States against the threat posed by Iraq and enforcing Security Council resolutions against Iraq).
345. See, e.g., Barron & Lederman, supra note 9, at 750-51 (discussing the assertion that there is a level of tactical discretion and autonomy left solely to the President).
346. Id.
347. U.S. CONST, art. II, § 1.
348. Id. § 2.
349. Under this view, the Commander in Chief Clause makes clear that despite having the Executive power, the President has no power to control the militia until it is called into federal service. As James Madison noted, it was entirely "natural" and "common" to grant power via a "general phrase, and then to explain and qualify it by a recital of particulars." THE FEDERALIST NO. 41 (James Madison), supra note 36, at 263.
350. See WORMUTH & FIRMAGE, supra note 1, at 107 (explaining that Charles I introduced the term into English law with the appointment of the Earl of Arundel in 1639).
351. Monck's Commission as Captain-General (Aug. 3, 1660), in 2 DANIEL MACKINNON, ORIGINS AND SERVICES OF THE COLDSTREAM GUARDS 239, 247 (London, Richard Bentley 1833).
352. Wormuth and Firmage argue that the English Commander in Chiefs authority was not absolute because the Commander could not move a corporal without a countersignature from the Secretary of War. WORMUTH & FIRMAGE, supra note 1, at 107. But the quote Wormuth and Firmage provide for that proposition is from the mid-nineteenth century. Id. (citing 2 CHARLES M. CLODE, THE MILITARY FORCES OF THE CROWN: THEIR ADMINISTRATION AND GOVERNMENT 761 (London, John Murray 1869)). The earliest Commanders in Chief appeared to have more unilateral power, subject to control by the Crown. Over time, Parliament eroded the Commander's unilateral power, subjecting them to civilian and military checks.
353. See David Gates, The Transformation of the Army 1783-1815, in THE OXFORD HISTORY OF tHE BRITISH ARMY 132, 146 (David G. Chandler & Ian Beckett eds., 2003) (asserting that the devolution of the Commander in Chief's responsibilities occurred in large part because of the repeated attempts of a suspicious Parliament to control the power of the military).
354. See, e.g., 1778, 15 Geo. 3, c. 6 (Eng.) (noting that Augustus Keppel was Commander in Chief of a fleet); 2 A COLLECTION OF TREATIES BETWEEN GREAT BRITAIN AND OTHER POWERS 376-77 (George Chalmers, ed., London, John Stockdale 1790) (reprinting a 1716 peace treaty, which noted that Vice-Admiral John Baker was "Commander in Chief of the Crown's ships in the Mediterranean); 2 ARTHUR COLLINS, THE PEERAGE OF ENGLAND 165 (London, W. Innys et al. 3d ed. 1756) (noting that in 1737, George Clinton served as "Commander in Chief of the fleet in the Mediterranean).
355. A MILITARY DICTIONARY, EXPLAINING AND DESCRIBING THE TECHNICAL TERMS, PHRASES, WORKS, AND MACHINES USED IN THE SCIENCE OF WAR, at E3 (London, G. Robinson et al. 1778) [hereinafter MILITARY DICTIONARY].
356. Id. at C5.
357. Id. at C6.
358. The prior citations of commanders in chief of particular fleets make clear that the title was used for subunits of the Navy. See supra note 286.
359. GREENE, supra note 159, at 99, 105, 110.
360. Id. at 98-99.
361. See, e.g., ALFRED A. CAVE, THE FRENCH AND INDIAN WAR 101-02 (2004) (describing the appointment of General Edward Braddock to lead British forces in North America and his subsequent summons of key governors for a strategy conference prior to the French and Indian War).
362. E.g., DEL. CONST, of 1776, art. IX; GA. CONST, of 1777, art. XXXIII; N.J. CONST, of 1776, art. VIII; N.Y. CONST, of 1777, art. XVIII; N.C. CONST, of 1776, art. XVIII; PA. CONST, of 1776, § 20; S.C. CONST, of 1776, art. III; VT. CONST, of 1777, ch. 2, § 11.
363. See, e.g., Commission to Virginia Governor, Sir Thomas West, Lord La Warr, in GREENE, supra note 159, at 207, 211-12 (granting the Virginia Governor authority to exercise specified wartime powers as needed); Draft Commission to New Jersey Governor Francis Bernard, in GREENE, supra note 159, at 230-31 (granting the New Jersey Governor authority to exercise specified wartime powers as needed).
364. MASS. CONST. of 1780, ch. II, § 1, art. VII. It is not clear whether the omission of the army was an oversight or not. The New Hampshire Constitution contained a virtually identical provision. N.H. CONST, of 1784, pt. 2 (amended 1968).
365. MASS. CONST. of 1780, ch. II, § 1, art. VII.
366. Barron and Lederman claim that there was "no consensus as to what substantive authorities" rested with a commander in chief. Barron & Lederman, supra note 9, at 781. In support of this claim, they cite constitutions that placed constraints on their commanders in chief. Id. at 781 n. 300. Yet varying restrictions on the powers of commanders in chief cannot prove a lack of a general consensus as to the powers associated with this ancient and familiar office. Once again, the use in many constitutions of an existing and widely used phrase, without any explication of it, suggests that the phrase had a common meaning.
367. Cf. MASS. CONST. of 1780, ch. II, § 1, art. VII (providing that the commander in chief has all the powers of the captain, general, and admiral).
368. MILITARY DICTIONARY, supra note 287, at E3.
369. See supra note 296.
370. See Act of June 18, 1812, ch. 102, 2 Stat. 755 (generally authorizing the use of armed forces to wage war against the United Kingdom).
371. See Act of May 13, 1846, ch. 16, 9 Stat. 9 (authorizing the use of armed forces and militia to wage war against Mexico).
372. See Act of Mar. 3, 1815, ch. 90, 3 Stat. 230 (authorizing the use of the armed forces against Algerian cruisers for the protection of United States commerce); Act of Feb. 6, 1802, ch. 4, 2 Stat. 129 (authorizing the use of the armed forces against Tripolitan cruisers for the protection of United States commerce).
373. See supra text accompanying notes 215-21.
374. Act of July 9, 1798, ch. 68, § 1, 1 Stat. 578, 578-79.
375. See infra subpart V(C).
376. See MILITARY DICTIONARY, supra note 287, at E3 (noting that a general, someone who "commands in chief," may issue orders);
377. see also MASS. CONST. ch. II, § 1, art. VII (providing that the Massachusetts commander in chief may instruct the navy and militia).
378. See, e.g., George Washington, General Orders (July 31, 1776) (on file with the George Washington Papers at the Library of Congress), available at http://lcweb2.loc.gOv/cgi-bin/query/r? ammem/mgw: @field(DOCID+@lit(gw050315)) (providing new rules for the giving of parole and countersign, and admonishing individuals not to give either code to unauthorized individuals). Parole and countersign are code words used to identify who is authorized to pass at night. JAMES A. MOSS, MANUAL of MILITARY TRAINING 269-70 (George Banta Publ'g Co. 1914).
379. See Letter from George Washington to Pennsylvania Troops Commanding Officer (July 14, 1776) (on file with the George Washington Papers at the Library of Congress), available at http://lcweb2.1oc.gov/cgi-bin/ query/r?ammem/mgw:@field(DOCID+@lit(gw050246)) (chronicling Washington's ordering an officer to obey the orders of General Hugh Mercer).
380. Cf. MASS. CONST. ch. II, § 1, art. VII (expressly providing that the commander in chief may train the navy and militia).
381. Before Congress enacted von Steuben's manual, Washington periodically issued training instructions. See, e.g., George Washington, General Orders (July 6, 1777) (on file with the George Washington Papers at the Library of Congress), available at http://lcweb2.loc.gOv/cgi-bin/query/r? ammem/mgw:@field(DOCID+@lit(gw080309)) (chronicling Washington's concern with the lack of discipline amongst the military's officers and as a result, ordering them to attend a parade and exercise).
382. Cf. MASS. CONST. ch. II, § 1, art. VII (providing that the commander in chief may seize all those who attack Massachusetts).
383. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 587 (2004) (Thomas, J., dissenting) (citing Moyer v. Peabody, 212 U.S. 78, 84 (1909)) (asserting that congressional legislation allowing the President to use necessary force against enemies authorizes the President to use any force, including deadly force, to accomplish his objective).
384. For a discussion of the President's power to remove, see generally Saikrishna Prakash, Removal and Tenure in Office, 92 VA. L. REV. 1779 (2006).
385. See supra text accompanying note 158.
386. President Washington certainly regarded himself as having the authority to remove soldiers. See Carl R. Fish, Removal of Officials by The Presidents of the United States, in 1 ANNUAL REPORT OF THE AMERICAN HISTORICAL ASSOCIATION FOR THE YEAR 1899, at 67, 69 (1900) (noting that President Washington had removed military officers).
387. See U.S. CONST. art. I, § 8, cl. 14 (granting Congress the authority to make rules governing and regulating the Army and Navy).
388. See generally Prakash, supra note 315 (discussing the President's removal powers).
389. A defense of the principle of limited horizontal supremacy can be found in subpart V(C).
390. See supra sections III(A)(1) and IV(A)(3).
391. See Prakash, What the Constitution Means, supra note 1, at 117 ("Early American history indicates that the President might order the armed forces to defend themselves against attack without such orders themselves constituting a declaration of war.").
392. See id. (noting that not all uses of force constitute a declaration of war).
393. 2 THE RECORDS OF THE FEDERAL CONVENTION of 1787, supra note 54, at 318.
394. Id.
395. See Prakash, A Two-Front War, supra note 1, at 100 (discussing letters from two governors requesting authority to conduct offensive operations).
396. Id. at 98-99.
397. Id. at 98-100.
398. See SOFAER, supra note 237, at 155 (noting advice from McHenry); Letter from Alexander Hamilton to James McHenry, supra note 78, at 461, 461-62.
399. Id. at 156.
400. U.S. CONST, art. I, § 8, cl. 11.
401. Id.
402. See NEFF, supra note 63, at 18 (noting that the Romans considered the pirates '"the common foe of all'" and that "the formal process of declaring war was employed only against foreign states, not against barbarians, brigands, pirates or the like").
403. VATTEL, supra note 82, at 108, 451;
404. see also id. at 319, 319-20 (distinguishing formal, legitimate wars from the illegitimate, informal wars, which were fought by pirates and bandits "solely with a view to plunder").
405. The Marianna Flora, 24 U.S. (11 Wheat.) 1, 40 (1826).
406. SOFAER, supra note 237, at 156. Indeed, Adams might have gone further in his instructions. He might have ordered his captains to attack and capture any known pirate ship without waiting to be attacked because such use of force would not have intruded upon any exclusive congressional power.
407. Thomas Jefferson, Fifth Annual Message to Congress (Dec. 3, 1805), available at http://www.yale.edu/lawweb/avalon/presiden/sou/jeffmes5.htm.
408. Letter from Thomas Jefferson to Robert Smith (Sept. 3, 1807) (on file with the Thomas Jefferson Papers at the Library of Congress), available at http://memory.loc.gov/cgi-bin/query/r?ammem/mtj: @field(DOCID+@lit(tjl00206)).
409. In 1789, Congress made piracy a crime. Act of Apr. 30, 1790, ch. 9, §§ 8-12, 1 Stat. 112, 113-15. Not until 1819, however, did Congress affirmatively authorize the President to use the Navy to combat pirates. Act of Mar. 3, 1819, ch. 77, 3 Stat. 510.
410. President Jefferson's dealings with the so-called Barbary Pirates are not to the contrary. Jefferson apparently did not believe he had the constitutional authority to order offensive measures against Tripolitan vessels. See Thomas Jefferson, First Annual Message to Congress (Dec. 8, 1801), available at http://avalon.law.yale.edu/19th-century/jeffmesl.asp (noting that the President could not order offensive measures against Tripoli). His belief likely stemmed from the view that these so-called pirates were really not pirates at all. Jefferson believed that the Tripolitan ships attacking American merchant vessels were authorized agents of the Tripoli government that had declared war. Id. Hence, Jefferson either regarded the Tripolitan corsairs as privateers or elements of the Tripolitan Navy. Because they were not true pirates, Jefferson understood that he lacked the constitutional authority to authorize offensive action against them.
411. See SOLICITOR, U.S. DEP'T OF STATE, RIGHT TO PROTECT CITIZENS IN FOREIGN COUNTRIES BY LANDING FORCES 34 (1929) [hereinafter RIGHT to PROTECT CITIZENS] (listing several incidents of "[s]imple protection of American citizens located in disturbed areas").
412. See Prakash, What the Constitution Means, supra note 1, at 117 (giving examples of other military actions that are not meant to indicate a nation's decision to wage war).
413. See id. at 116-19 (discussing the difficult dividing line between permissible uses of force and informal declarations of war).
414. Presidents have ordered the use of military force to punish those who perpetrated acts of violence against Americans. See RIGHT TO PROTECT CITIZENS, supra note 341, at 34-35 (listing examples of prior uses of military force meant to punish for violence and insults directed against American citizens).
415. See GARY WILLS, A NECESSARY EVIL: A HISTORY OF AMERICAN DISTRUST OF GOVERNMENT 51-52 (1999) (discussing the historical support for granting Washington dictatorial powers during the Revolutionary War Era).
416. 1 RAMSAY, supra note 268, at 316.
417. 8 JOURNALS OF THE CONTINENTAL CONGRESS 750, 752 (Worthington Chauncey Ford ed., 1907) (entry for Sept. 17, 1777).
418. Id.
419. See 9 JOURNALS OF THE CONTINENTAL CONGRESS 900, 905 (Worthington Chauncey Ford ed., 1907) (entry for Nov. 14, 1777) (extending prior resolves for about a three-month period).
420. U.S. CONST, art. II, § 2, cl. 2.
421. Id. art. II, § 1, cl. 1.
422. See supra note 45 and accompanying text.
423. See supra section III(B)(1).
424. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
425. Obviously, Justices who examine practice to gauge whether history has added a gloss to the words in the Constitution would look beyond the Founding. See id. at 610-11 (Frankfurter, J., concurring) ("[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution,... may be treated as a gloss on 'executive Power' vested in the President by § 1 of Art. II.").
426. For a long list of such claims, see Barron& Lederman, supra note 9, at 751 n. 191.
427. See Memorandum from Jay S. Bybee to Alberto R. Gonzales, supra note 7, at 172, 207 (claiming that Congress cannot "dictate strategic or tactical decisions on the battlefield").
428. See supra subpart IV(B).
429. ARTS, OF CONFEDERATION art. IX.
430. U.S. CONST. art. I, § 8, cl. 14.
431. Printz v. United States, 521 U.S. 898, 920 n. 10 (1997) (quoting Saikrishna Bangalore Prakash, Field Office Federalism, 79 VA. L. REV. 1957, 1972 (1993)).
432. See Lloyd N. Cutler, Op-Ed., Our Piece of the Peace; Sending Troops to Bosnia: Our Duty, Clinton's Call, WASH. POST, NOV. 26, 1995, at Cl ("Congress needs to recognize that we cannot have 535 commanders-in-chief.").
433. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 383-84 (Peter Laslett ed., Cambridge Univ. Press 1960) (1690).
434. l RECORDS OF THE FEDERAL CONVENTION, supra note 54, at 300. Similarly, Alexander Hamilton apparently proposed that the Executive should "have the direction of war when authorized or begun." Id. at 292. Robert Yates, his fellow New York delegate, quotes Hamilton as providing that the Executive would have the "sole direction of all military operations." Id. at 300.
435. Id. at 92.
436. 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 55, at 107;
437. see also id. at 108 (noting that the President may command the militia when Congress summons it).
438. 2 id. at 315, 315-16.
439. THE FEDERALIST NO. 69 (Alexander Hamilton), supra note 36, at 417-18.
440. Id. NO. 72, at 436.
441. Id. NO. 74, at 447.
442. 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 55, at 498. Curiously, Mason previously said it was appropriate for the President to have "a general superintendency" of the armed forces, but he was worried about the President's ability to command in person.
443. See id. at 496. For the same complaint voiced by another Philadelphia delegate, see Letter from Luther Martin to Thomas Cockey Deye, Speaker of the House of Delegates of Md. (1787), in 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 55, at 344, 378.
444. 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 55, at 114.
445. Tamony, To the Freeholders of America, VA. INDEP. CHRON., Jan. 9, 1788, reprinted in 8 RATIFICATION OF THE CONSTITUTION BY THE STATES 287 (John P. Kaminski & Gaspare J. Saladino eds., 1988).
446. See THE OXFORD HISTORY OF THE BRITISH ARMY, supra note 285, at 146 (observing that the Commander in Chief shared military responsibilities with other officials and operated as principal military advisor to the Crown).
447. See id. at 364 (discussing the role of commanders in chief in India, Bengal, and Madras); Henry P. Beers, The Papers of the British Commanders in Chief in North America, 1754-1783, 13 MIL. AFF. 79, 79-82 (1949) (detailing the succession of the commanders in chief in colonial North America).
448. DAVID RAMSAY, THE LIFE OF GEORGE WASHINGTON 28 (London, Luke Hansard & Sons 1807).
449. MILITARY DICTIONARY, supra note 287, at C5.
450. Id.
451. See SOFAER, supra note 237, at 20-21 (noting the Continental Congress's instruction of Washington).
452. George Washington's commission as Commander in Chief provided that he was "to regulate [his] conduct in every respect by the rules and discipline of war,... and punctually to observe and follow such orders and directions, from time to time, as you shall receive from this, or a future Congress of these United Colonies." 2 JOURNALS OF THE CONTINENTAL CONGRESS 96, 96 (Worthington Chauncey Ford ed., 1905) (entry for June 17, 1775).
453. See 7 JOURNALS OF THE CONTINENTAL CONGRESS 217, 218 (Worthington Chauncey Ford ed., 1907) (entry for Apr. 2, 1777);
454. id. at 250, 252 (entry for Apr. 9, 1777) (both directing the commanders in chief to ensure soldiers and officers are fully compensated); 6 JOURNALS OF THE CONTINENTAL CONGRESS 962, 966 (Worthington Chauncey Ford ed., 1906) (entry for Nov. 19, 1776) (requiring commanders in chief to provide compensation for injured or sick officers);
455. id. at 787, 799 (entry for Sept. 20, 1776);
456. id. at 589, 599 (entry for July 22, 1776) (both directing commanders in chief to make prisoner exchanges, and making the commanders in chief answerable to the Continental Congress for neglectful behavior); 2 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 379, at 111, 112 (entry for June 30, 1775) (giving commanders in chief the option to discharge or retain soldiers and officers who do not subscribe to the rules and regulations of the Continental Army). Letters referenced these regional commanders in chief as well.
457. See, e.g., Letter from Board of War to the Executive Committee (Feb. 7, 1777), in 6 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, at 229, 229 (Paul H. Smith ed., 1980) (describing General Philip Schuyler as commander in chief of the Northern Department); Letter from John Hancock to Philip Schuyler (July 24, 1776), in 4 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, supra, at 533, 533-34 (referencing the commander in chief of the Northern Department and noting that Congress authorized each of the commanders in chief to negotiate prisoner exchanges); Letter from Henry Laurens to Benjamin Lincoln (Nov. 16, 1778), in 11 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, supra, at 219, 219 (referencing the commander in chief of the "Southern Department").
458. See 3 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 160, at 443, 443 (entry for Dec. 22, 1775) (naming Ezek Hopkins as Naval Commander in Chief on December 22, 1775);
459. see also id. at 378, 378 (entry for Nov. 18, 1775);
460. 20 JOURNALS OF THE CONTINENTAL CONGRESS 709, 711 (Gaillard Hunt ed., 1912) (entry for June 21, 1781);
461. 21 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 82, at 1151, 1157 (discussing the Naval Commander in Chief). Since the Navy was quite small, at least initially, Hopkins's office had a rather limited jurisdiction.
462. See, e.g., 1 GARDNER W. ALLEN, A NAVAL HISTORY OF THE AMERICAN REVOLUTION 128 (1913) (noting the Continental Congress's instruction of the Naval Commander in Chief).
463. Id. at 188.
464. See Barron & Lederman, supra note 9, at 780-85 (discussing how state commanders in chief had to exercise their functions subject to legislative direction).
465. Id. at 782.
466. See DEL. CONST, of 1776, art. IX (stating that the state president may act as "commanderin-chief" of the militia); GA. CONST, of 1777, art. XXXIII (stating that the Governor "shall be captain-general and commander-in-chief over all the militia"); MASS. CONST. of 1780, pt. 2, ch. 2, § 1, art. VII (stating the Governor shall be "the commander-in-chief of the army and navy, and of all the military forces of the State"); N.H. CONST, of 1784, pt. 2 (stating that "[t]he president of this... shall be commander in chief of the army and navy"); N.J. CONST, of 1776, art. VIII (stating that the Governor shall act as commander in chief of all the militia); N.Y. CONST. of 1777, art. XVIII (stating that the Governor shall be commander in chief of all the militia); N.C. CONST. of 1776, art. XVIII (stating that the Governor shall be commander in chief of the militia); PA. CONST. of 1776, § 20 (stating the state president shall be commander in chief of the "forces of the state"); S.C. CONST. of 1776, art. III (describing the state president also as the commander in chief); VT. CONST. of 1777, ch. 2, § 18 (stating that the "Governor shall be commander-in-chief of the forces of the State").
467. See Act of May 8, 1792, ch. 33, 7sect;§ 4, 6, 10, 1 Stat. 271, 272-74 (detailing the organization of state militias under the control of state commanders in chief but noting a duty to report to the President of the United States).
468. See Act of Mar. 2, 1799, ch. 24, §§6, 11, 1 Stat. 709, 716, 716-17 (discussing prize money to go to commanders in chief and rules or regulations made by "any commander in chief); Act of Mar. 3, 1797, ch. 16, § 4, 1 Stat. 507, 508 (noting that the commander in chief is entitled to double the rations).
469. See Commission of George Washington as Lieutenant General and Commander in Chief by President John Adams (July 4, 1798), available at http://memory.loc.gov/mss/mgw/mgw8b/124/0100/0188.jpg.
470. Id.
471. This more modest but still significant conception of the Commander in Chief authority continues. Until October 2002, the United States followed the British practice of having regional commanders in chief. See
472. U.S. CONST. art. II, § 1, cl. 1.
473. For discussions of how best to read the Vesting Clause, see generally Calabresi & Prakash, supra note 13;
474. Prakash, supra note 45;
475. and Prakash & Ramsey, supra note 45.
476. See U.S. CONST. art. II, § 2, cl. 1 (stating that the President "shall have power to grant reprieves and pardons... except in cases of impeachment").
477. Id. (granting the President authority as Commander in Chief of the militia only "when called into the actual Service of the United States").
478. See THE FEDERALIST NO. 41 (James Madison), supra note 36, at 263 ("Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.").
479. For a discussion of what the Constitution's Executive Power Clause means with respect to law execution, see generally Calabresi & Prakash, supra note 13, and Prakash, supra note 45. For a discussion of the foreign-affairs facet of the Executive power, see Prakash & Ramsey, supra note 45.
480. ARTS. OF CONFEDERATION art. IX. Compare ARTS. OF CONFEDERATION art. IX (granting Congress the power to direct military operations), with U.S. CONST, art. I, § 8 (enumerating Congress's powers and omitting any reference to the power to direct military operations).
481. U.S. CONST. art. I, § 8, cl. 14.
482. See supra text accompanying notes 170-71.
483. ARTS. OF CONFEDERATION art. IX.
484. See U.S. CONST. art. I, § 8, cl. 7 (granting Congress the power to "establish Post Offices and post Roads").
485. ARTS. OF CONFEDERATION art. IX.
486. See U.S. CONST. art. I, § 8, cl. 5 (granting Congress the power to "coin Money, regulate the Value thereof, and of foreign Coin").
487. Act of May 4, 1798, ch. 39, § 2, 1 Stat. 556, 556.
488. Act of May 9, 1794, ch. 27, § 4, 1 Stat. 367, 367-68 ("[T]he said militia shall not be compelled to serve a longer time, in any one tour, than three months after their arrival at the place of rendezvous....").
489. See supra note 363 and accompanying text.
490. Tamony, supra note 373, at 287.
491. 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 55, at 494-98.
492. See id. at 389-93 (arguing that the President would be given adequate control over the armed forces).
493. Id. at 391. Later, Nicholas would note that the Constitution mimicked the Virginia state constitution, which granted the Governor the sole command of the militia. See id. at 497. In fact, the state constitution noted that the Governor "shall alone have the direction of the militia, under the laws of the country." VA. CONST. of 1776. The latter clause-"under the laws of the country"- perhaps implied that the state legislature could direct the militia because the Governor's power was made subject to the "laws of the country."
494. 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 55, at 114.
495. Id. Spaight went on to suggest that the "direction of an army could not be properly exercised by a numerous body of men." Id. at 115. Given his earlier statement, Spaight seemed to be suggesting that Congress ought not direct the Army and should instead leave it to the Commander in Chief.
496. See supra subpart III(A).
497. See supra section III(B)(1).
498. See supra text accompanying notes 172-80.
499. See supra note 363 and accompanying text.
500. LOCKE, supra note 363, at 383-84.
501. U.S. CONST. art. I, § 7, cl. 2.
502. See President George W. Bush, Speech on His Veto of the Iraq War Supplemental (May 1, 2007), available at http://www.whitehouse.gov/news/ releases/2007/05/20070501-6.html (explaining the President's decision to veto an Iraq appropriations bill because it contained a mandatory withdrawal timeline).
503. See U.S. CONST. art. I, § 7, cl. 2. The Presentment Clause sets out the veto and vetooverride procedures: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. Id.
504. Recognizing that the President is likely to veto stand-alone legislation that micromanages a war, members of Congress likely will add other legislative proposals to the bill-proposals that the President favors. In this situation, the President will have to decide whether to take the bitter with the sweet.
505. See George Washington, Veto Message (Feb. 28, 1797), in 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, supra note 134, at 211, 211 (informing Congress of the reasons motivating his veto).
506. Id.
507. See 2 JOURNAL OF THE HOUSE OF REPRESENTATIVES, supra note 119, at 727, 728-29 (entry for Mar. 1, 1797) (recording the House's failure to override Washington's veto by a vote of 55 to 36);
508. see also Act of Mar. 3, 1797, ch. 17, 1 Stat. 508 (lacking a provision disbanding dragoons).
509. Some members of Congress wished to have Washington replaced by General Horatio Gates. EDWARD G. LENGEL, GENERAL GEORGE WASHINGTON 276-78 (2005).
510. LUCILLE E. HORGAN, FORGED IN WAR: THE CONTINENTAL CONGRESS AND THE ORIGIN OF MILITARY SUPPLY AND ACQUISITION POLICY 51 (2002).
511. U.S. CONST. art. I, § 3, cl. 6; id. art. II, § 4.
512. See ARTS. OF CONFEDERATION art. IX (bestowing Congress with the power to appoint "all officers of the land forces, in the service of the United States, excepting regimental officers," and "all the officers of the naval forces").
513. See bRUCE cHADWICK, gENERAL wASHINGTON'S wAR: tHE fORGING OF A REVOLUTIONARY LEADER AND THE AMERICAN PRESIDENCY 258-61, 284-85, 376-77 (2005) (discussing numerous controversies associated with congressional power to appoint generals and Washington's frustration with seeing more qualified officers passed over in favor of incompetents).
514. In truth, the Constitution creates a default rule of presidential nomination and then appointment by the President after the Senate confirms. For so-called inferior officers, including inferior military officers, Congress may vest the appointment of such officers in the department heads, the courts of law, or the President. The Constitution specifically provides: [The President] 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... 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. U.S. CONST. art. II, § 2, cl. 2.
515. See supra notes 315-18 and accompanying text.
516. U.S. CONST. art. II, § 2, cl. 1 (providing that the President 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").
517. Cf. 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 55, at 110 (recording future Supreme Court Justice James bedell's position that the President may ask for advice but must take responsibility for any decision made).
518. See 2 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 379, at 100, 101 (entry for June 20, 1775) (authorizing Washington to use his discretion and suggesting that he consult with a "council of war"). Washington apparently believed that he had to consult with the council. Congress eventually said it never meant to require Washington to consult with a council of war. 7 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 380, at 196, 196-97 (entry for Mar. 24, 1777).
519. For a general discussion of this ambiguity, see Barron & Lederman, supra note 9, at 778-80.
520. U.S. CONST. art. II, 7sect; 2, cl. 1 ("[The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.").
521. See U.S. CONST. art. II, 7sect; 3, cl. 1 ("[The President] shall take Care that the Laws be faithfully executed....").
522. When confronted with unconstitutional laws, the President may disregard them. For a general defense of this assertion, see Saikrishna Bangalore Prakash, The Executive's Duty to Disregard Unconstitutional Laws, 96 GEO. L.J. 1613 (2008).
523. The Constitution makes federal laws, treaties, and the Constitution supreme, and then it mentions certain things that are to be ignored if they conflict with the supreme law. U.S. CONST. art. VI, cl. 2. The list of legal materials that may be trumped, which includes state constitutions and laws, is best understood as illustrative of the many legal materials that supreme law trumps.
524. See supra text accompanying notes 125-28, 158-59.
525. Ex parte Garland, 71 U.S. (1 Wall.) 333, 379-80 (1866).
526. See supra subparts IV(A)-(B).
527. See Saikrishna Prakash, Regulating Presidential Power, 91 CORNELL L. REV. 215, 249-50 (2006) (reviewing HAROLD J. KRENT, PRESIDENTIAL POWERS (2005)) (arguing that there are no decisions related to law execution that Congress may not decide).