Isn't the President "Automatically" Commander in Chief? Well... No!
By Greg Penglis —— Bio and Archives August 23, 2016
We live in a world of assumptions. We live by those assumptions. We believe our assumptions. Those assumptions hold more value for us than truth. When faced with a new truth that contradicts our assumptions, the assumptions are given the weight of truth, and the truth is reduced to a mere assumption. Such is the power of myth. I hope to challenge all the assumptions we live by and give you the option to adopt new truths, and make those truths your new assumptions. There are so many assumptions that simply aren’t true, like: judges and justices can overturn or overrule laws by judicial review; individual rights aren’t absolute and are subject to government restrictions; Federal Reserve Notes are actual currency; and juries can’t nullify laws, they can only judge on the facts of a case. I’ll get to these someday. But for now, why do you assume that the President is automatically Commander in Chief?
You assume the President is Commander in Chief automatically because that has been the practice since Harry Truman, who came to the Presidency upon the death of Franklin Roosevelt, and during a declared war. So at that one time, the President automatically became Commander in Chief because the Declaration of War from Congress was still in force. However, World War Two was the last actual Declaration of War from Congress, which alone has the power to declare war, so every war or warlike action by every President since Truman, exercising Commander in Chief powers automatically, has been unconstitutional. It is time to change that practice, by changing the assumptions, by getting to the truth, and then enforcing the truth.
The first clause of Article 2, Section 2, of the Constitution defines the Commander in Chief authority. “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;”. The rest of the sentence describes powers governing the principal officers of executive departments, and the granting of pardons and reprieves except for impeachment. In all parts, clauses, and phrases of this one sentence, and this is key—the President is the subject throughout, as everything relates to the powers and limitations on—the President.
Why is this key? The most important phrase in this sentence regarding Commander in Chief powers is: “when called into the actual Service of the United States.” This of course refers to “the President” being called into actual Service, as the subject of the sentence. The other key words are “shall be” and “when.” Had the phrase merely stated: “The President shall be Commander in Chief…” then it would be automatic. But the conditional word “when” changes everything. “When,” requires an action. The action is: “called into the actual Service of the United States.” The condition is that Congress has to do it as part of a Declaration of War, because Commander in Chief is specifically a war power only. That is why the President is only Commander in Chief when called into the actual Service of the United States under a Declaration of War from Congress. Not just service, but “actual” Service, emphasis and specificity to war powers only.
My analysis is just a matter of using the basic rules of grammar and reading the Constitution as written. There is no magic trick or legal complexity. From the start of Article 2, Section 2, the first punctuation stronger than a comma is the semi-colon at the end of “when called into the actual Service of the United States;”. So all the phrases are taken as one section of military governance, where the President is the subject, and everything that follows is predicated on power to the President, and nothing else.
I mention the grammar because many sources completely misconstrue this part of Article 2, Section 2, by saying it is the “Militia of the several States” which is called into actual Service of the United States, and when that happens, the President, who is already Commander and Chief of the Army and Navy, becomes Commander in Chief of the Militia as well. This is absolute nonsense. The Militia isn’t the subject of this clause, the President is. If this interpretation were true there would be a semi-colon after the Army and Navy part, thus separating the Militia phrase from the rest of the clause, and the part about the Militia would then be joined to the part about being called into actual Service, and separate from the Army and Navy phrase. It would also mean the President would never be called into actual Service, only the Militia would, and therefore there would be no need for a Declaration of War from Congress to do anything, because the President could make war all by themselves. This would of course contradict Article 1, Section 8, and effectively negate and make irrelevant the congressional power to declare war, and the power of Congress to call forth the Militia, which is the same as calling the Militia into federal service, which is already covered in Article 1, and not in Article 2. It would also mean that the “President” would be calling the Militia into actual Service, which could be used then as the President saw fit without the oversight of Congress. That could make the Militia a private army of the President. But there isn’t a semi-colon, or colon, or period, in Article 2, Section 2, Clause 1, and so the calling into service is connected only to the President, as the subject of the whole clause, and not to the Militia at all. But that is the line pushed by the Heritage Foundation and many other sources. Here is how they headline their discussion:
Commander of Militia
The President shall be Commander in Chief…of the Militia of the several States, when called into the actual Service of the United States….
ARTICLE II, SECTION 2, CLAUSE 1
And here is the source:
If Congress and the Presidents had simply followed the Constitution, we either would have had a Declaration of War, and the national support that comes with it, or, no war at all: in Korea, Viet Nam, Iraq, Afghanistan, and various battles and actions ever since World War Two. Considering all the lives lost and resources expended in all these undeclared actions, and the fact that no foreign government military force has attacked United States territory since World War Two, this is a dispute worth resolving.
I’m not the only one who feels this way. Giacomo writing under Godfather Politics has this to say:
What Giacomo adds specifically is how Congress, through Article 1, Section 8 of the Constitution, is in charge of the military. It is Congress that budgets for the military, creates military policy, and calls forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions. This all backs up what I said earlier.
The President has no role whatsoever in the military, unless called into actual Service with a Declaration of War. Therefore, any military action or policy established by any President outside a Declaration of War is invalid, since they had not been called into actual Service as Commander in Chief. Think of the President as an administrator. In peacetime the President administers the laws of Congress through the Administration departments. In declared wartime the President becomes Commander in Chief and administers the war through the military. But in both instances, all authority, policy, and direction, comes from Congress.
For another great discussion on this, see the article by Matt Shipley, a Navy veteran who has a ton of medals and awards.
I agree with almost everything, except one. He talks about the actual calling into service of the military, not just the President. The founders envisioned that we would never have a permanent standing army, and as such the Army could never deprive the citizenry of liberty. I believe as a counter in case this fails we have the Second Amendment, which declares the power of the people to form militias to maintain a state of freedom, and to this end the right to own and carry firearms shall not be infringed. The problem is that we do have a permanent Army, Navy, Air Force, Marines, and Coast Guard. They are always active, operating 24/7, worldwide, and so are effectively always called into service. Matt actually answers this question by detailing how Congress is still in charge of all military matters and policy. I’m just wondering how in this modern age the military could not be thought of as permanently called into service? But I don’t see this necessarily a problem. Therefore the question is how we live with a permanent military, how and when they are to be used, and the policies they operate under, when that is completely under the authority of Congress? It is therefore the constitutional responsibility of Congress to take back charge of everything military, until such time as they declare a war and call the President into actual Service to administer that war. Anything else is an abdication of constitutional governance and a complete failure of the trust of the American people.
So, how do the small minority of us who understand all this, convince the populace of this, so that you never think of the President as Commander in Chief, until called into actual Service, especially when the entire government and media say otherwise? Until that is successful, Presidents will be assumed to have a power they clearly do not, where assumptions are more powerful than truth, and every action by a President acting as Commander in Chief when not called into actual Service is definitely impeachable, and subject to trial by the Senate; and this may extend to an act of treason depending on the severity and cost of the violation, as in every case it so directly violates every principle of the Constitution and the Oath of Office the President swears to uphold.
What if we add to the Oath of Office? At the end of Article 2, Section 1, is the Oath. After “... preserve, protect and defend the Constitution of the United States” this phrase could be added: “And I shall execute the authority of Commander in Chief, only during the existence of a Declaration of War, upon being called into the actual Service of the United States by Congress.” That should do it. Whether this could be done by constitutional amendment or by statute I leave to the lawyers, but it most certainly should be done.
The other way is for Congress to have a statute, or standing budget item, which would read: “Pursuant to Article 1, Section 8, and Article 2, Section 2 of the Constitution, no President shall exercise any Commander in Chief power, nor authorize any funds to be expended, including but not limited to, any military action, authority, policy, budget expenditure, or executive order, unless called into the actual Service of the United States, during the existence of a Declaration of War.” So what about emergencies or invasions you ask? Congress already has the power to issue standing orders to the military to repel invasions and suppress insurrections in Article 1, Section 8, of the Constitution.
The worst case scenario ever since the Cold War began has been a nuclear attack. At first the threat was bombers, and later from nuclear missiles. The time from launch to impact makes it impossible to wait for the congressional debate and approval for a Declaration of War in time to repel this invasion. The infinite number of possible threats and attacks also makes it problematical for Congress to leave standing orders to the military to cover every possible situation. This has also been a justification for the permanent status of President as Commander in Chief. Therefore, it makes sense to me to regard any such attack by any foreign power as an automatic act of war, to which Congress could leave a Declaration of War which would be immediately triggered by such an attack, which would immediately call the President into actual Service upon confirmation of such an attack. Maybe there is already? I’m not privy to such knowledge. But this would be a way to comply with the Constitution and immediately deal with a nuclear or other devastating attack. I’m sure this could be modified for a foreign terrorist attack as well. Domestic attacks are already covered by a variety of laws, agencies and departments. But this is the exception, the rule has been extended, undeclared wars and nation building, all at a terrible cost to us, and that is what I am addressing in this article.
Power once acquired, however it is done, is never easily relinquished. Just look at the Supreme Court and Judicial Review. An article by George Friedman in Stratfor details how Truman, once he had Commander in Chief power, never surrendered it at the end of World War Two, which he was required to do since the Declaration of War was no longer in effect. So when Truman wanted to start a war in Korea, and Congress made no Declaration of War, rather than accept the constitutional limitation, Truman illegally started a war without Congress. My words. Here is the article.
Friedman tells how Truman went to the U.N. for international sanction for the Korean War, bypassing Congress, because Truman said the U.N. Charter is a treaty binding us to war if the U.N. requires it, and because the war was a “police action.” And look how this unconstitutional action turned out. Korea is still officially at war. In my opinion, what should have happened to end this usurpation of Commander in Chief powers is that Truman should have been impeached, tried in the Senate, and kicked out of the Presidency. Congress should have reestablished its power over the military, and clearly stated that only Congress can make the President the temporary Commander in Chief. Neither the U.N., nor any other foreign body or law is supreme to the Constitution. Because this was not resolved properly with impeachment, trial and removal, we are in the predicament we are today, and we’ve had such subsequent wars as Viet Nam, Iraq and Afghanistan, none of which have had a Declaration of War.
Friedman argues that it was Viet Nam, and the Gulf of Tonkin Resolution, where President Johnson interpreted that Resolution as being the equivalent of a Declaration of War, which it certainly was not, my words again, and this is the point where the constitutional requirement of a Declaration of War before going to war—died. So let’s check theResolution.
From the actual text:
“Resolved by the Senate and House… That the Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.”
By now you should be able to see where Congress screwed up. There was no Declaration of War, so Johnson could not have been Commander in Chief. The Resolution is also a reversal of the Constitution, because it is the Congress that has to determine whether to declare and go to war, and then call the President into actual Service, and not the President who makes the determination to go to war, and then gets the retroactive approval of Congress for forces already committed. What is critical to see is that this Resolution is against an attack against the “forces” of the United States, and not the United States itself, because clearly the forces of Viet Nam were not invading the United States, as our forces were within Viet Nam. This might explain why a defensive Declaration of War against a nation that our forces were already in would be difficult to sell to the country, since such a declaration would have to determine that our forces were defensively repelling an armed attack inside a foreign country defending itself from us.
The precedent set by the Tonkin Resolution is that we can put our forces in any country, and when they attack our forces inside their country, this is an act of war against our “forces,” which allows the President to attack their forces inside their country, which would not have happened if we were not already in their country, which would not have happened if the President was not automatically Commander in Chief. That precedent pretty much repeated in Iraq and Afghanistan.
It is my opinion that had Congress debated a Declaration of War, then denied it, and stopped Johnson from carrying out any further military action, we would not have had a Viet Nam War, because all the protests and debate against the war would have taken place before the Declaration of War, rather than after the war had already started. Friedman also argues that once the precedent was set that war could be commenced and carried out by the President by resolution only, then all future wars could be authorized by resolution. And this brings us to the War Powers Act.
The War Powers Act is blatantly unconstitutional because it allows presidents to start wars on their own, and then have Congress retroactively approve a war that’s already under way, knowing that it is far harder to pull back troops from a foreign war that is already a shooting war, than it is to go through the motions and process of getting a Declaration of War before any military forces are committed. Congress has delegated the power to initiate war now to the President, which they can not legally do, and they have authorized it in an unconstitutional law, the War Powers Act, and continued the practice multiple times since its passage with equally unpopular and disastrous results. Basically every President since Truman who committed military forces to a war or military action, without a specific pre-approval of Congress based on Article 1, Section 8, or have been called into actual Service based on Article 2, Section 2, should have been impeached, tried, convicted, and removed from office. That would have been the proper role of Congress. Every Representative and Senator who refused to impeach and convict should have been removed by the voters, or expelled from the House or Senate. That is how a Constitutional Republic works, and that is what we need to have happen now.
Fast forward to today. We hear this is the new world. We aren’t fighting armies now. We are fighting terrorism. That doesn’t change the fact that the Constitution still is the supreme law of the land. In this new world of terrorism, should a Declaration of War be required to fight ISIS internationally? Absolutely! How about Al Qaeda? Of course. Does this in any way prevent the President, the FBI, Justice, Homeland Defense, and other security/intelligence/law enforcement agencies from taking action to stop terrorism domestically? Of course not. Congress creates the laws and policies regarding domestic terrorism and the President administers those laws. But as we go into this new world we must still proceed within the framework of the Constitution, and not in spite of it, for when we don’t unintended consequences keep spiraling outward, and we go from a President who by accident became Commander in Chief because of a Declaration of War for a previous President, to the current state where the President has all the war powers that used to belong to Congress, and Congress now waits until the President has taken war action, and waits to give their approval after the fact.
So now that you know your assumptions are wrong, what are you going to do? How is this going to affect your vote in November? Do you think a President Hillary will ask for a Declaration of War before any military action anywhere in the world? We know she is capable of withholding military action which cost lives of Americans. Is withholding forces as bad, or worse, than committing forces unjustly? Do you think her capable of committing domestic forces, calling up the Militia if she pleases, to another Waco type operation? In fact, do you think she believes in any limitation of her power at all? Do you think Donald Trump knows the Constitution well enough to know he has to ask for a Declaration of War, or will he just carry on the illegal tradition of every President since Truman, figuring if they did it, then he can as well? It’s going to be up to us to change the policy, force Congress to exercise their proper authority to declare war, to run the military in peacetime, and to impeach any President who tries to be Commander in Chief unless called into actual Service by Congress.
Share this article. Call your talk shows and ask about this. Write the online publications and ask the editors. And you can insist on a presidential debate question on this topic. Here is mine: “Given that only the Congress can declare war, and the President can not act as Commander in Chief until called into the actual Service of the United States by Congress with a Declaration of War, are you (Trump/Clinton) going to continue to usurp the power of Commander in Chief illegally and unconstitutionally as every President has since Truman, or, are you going to honor the Oath of Office to preserve, protect and defend by your actions and restraints, the Constitution of the United States?”
For further reading on this topic please see these additional articles and sources:
Tenth Amendment Center