About those presidential powers ...

In recent years we've been hearing a lot about how the Constitution grants the president power to do pretty much anything he wants to do. The oft cited line is that 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".

But all that means is that the president is the top of the chain of command for the armed forces. And nothing more. It does not say that the president has any specific powers as Commander in Chief. He cannot (legally) print money as Commander in Chief (pace John Yoo).

What does the Constitution say? George Will gave a summary recently:

the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs." ... is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers.[emp original]

What is the actual text Will is referring to? Article I, Section 8, last line:

POWERS OF CONGRESS:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In other words,

Congress makes all laws for the execution all powers of the United States.

That would include whatever the president might be doing as Commander in Chief. The president has no legal powers defined, except for issuing pardons, making treaties, and appointments - the latter two which require the approval of the Senate.

Check out the president's powers in the Constitution. It's all in Article II - and it's not a whole lot.

Are we being textualists here? You bet.

Oh, for those who say FDR exceeded his authority, so don't get upset of Bush, the answer is FDR was wrong to do so and Bush is wrong to do so today.


posted by Quiddity at 3/09/2006 12:41:00 AM