Power of President as Commander in Chief

What kinds of power does the President of the United States actually have? This has been a hotly debated question for much of the history of the United States; starting with George Washington’s rejection of royalty and refusal to be named King or be called “Your Excellency” while in office.

There are some today who are confused by the separation of powers; they have difficulty grasping how the Judicial Branch (the Supreme Court), the Legislative Branch (House and Congress) and the Executive Branch (the office of the President) co-exist and are meant to work together.

There may be some (even in the White House) who believe that the President, by virtue of being President, can exercise executive privilege without restriction. “It’s not illegal if the President does it” may be a notion some cling to, but federal law has a reality check for this concept.

What The President Is Legally Authorized To Do In Office

Article Two of the United States Constitution authorizes the President of the United States to exercise the following authority, which includes but may not be limited to, the following below.

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 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.”
• The President may veto or approve laws passed by the House and Senate. The President must veto the entire measure or pass it.
• The President is authorized to grant pardons and reprieves (except in cases of impeachment).
• The President has the power to make treaties, as long as a two-thirds majority “of the Senators present” agree.
• The President appoints ambassadors, Supreme Court judges, “and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” However, 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.”
• The President may fill all vacancies that may happen during the recess of the Senate, “by granting Commissions which shall expire at the End of their next Session.”
• The President will inform Congress periodically of the State of the Union, and “recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them.”

Limits To Presidential Power

One of the recent formal limitations to Presidential power was connected to the Line-Item Veto Act of 1996, which was found unconstitutional by the Supreme Court in 1996. The President of the United States cannot line-item veto a measure passed by the House and Senate; the entire measure must be approved or denied.

But there are other limits. Even as the Commander-In-Chief, the President of the United States cannot make a formal declaration of war without the approval of Congress.

One area of debate over Presidential power involves the very definition of the term “Executive Branch” or “executive power.” The official site of Cornell Law School points out that the historic interpretation of the nature of executive power in the Oval Office is that while the President is in charge of the Executive Branch, he or she “is still subject to limits within that Branch (i.e. if the President fires members of the Executive Branch, Congress would have oversight and would be able to investigate the firings.)”

But there are conflicting interpretations of this; some believe the President “has full power over the entire Executive Branch” according to Cornell Law, which adds that under this particular interpretation:

“…any decision that the President makes regarding the Executive Branch would not be subject to any sort of review or oversight” (i.e. Congress would not be able to investigate the President’s firings of any members of the Executive Branch).”

The Supreme Court has not ruled on this interpretation, sometimes referred to as “the Vesting Clause.”

What The President of the United States Cannot Do

The President can issue an executive order without approval from the House or Senate, but those orders can be overridden by a two-thirds majority. Executive orders can also be nullified by the Supreme Court or modified.

The President cannot issue an executive order to change the U.S. Constitution, and executive orders must be supported by the Constitution.

It’s one thing to have your powers restricted or subject to limitations, but there are some areas the President of the United States is simply not allowed by law to do. One excellent example of this is known as Posse Comitatus, which restricts the use of U.S. active duty military troops on American soil for the purposes of law enforcement.

The name of the federal law that imposes this restriction is known as the Posse Comitatus Act, passed in 1878, by President Rutherford B. Hayes. One key aspect of this law is that it does not presume that the President of the United States is the only person who may be tempted to order the use of American active duty military members for domestic law enforcement.

The actual text of the law says that ANYONE responsible for using “any part” of the Army or Air Force for domestic law enforcement will be punished by fines, imprisonment, or both.

“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.”

A published report by the Rand Corporation notes that the Air Force portion of the law was added in 1956. Some may note the absence of the United States Marine Corps and the U.S. Navy, but these two branches of military service are made subject to the Posse Comitatus Act thanks to a Department of Defense regulation.

The phrase “posse comitatus” can be interpreted to mean “the power of the state” and the original use of the act itself is (according to the Rand report) “to end the use of federal troops to police state elections in former Confederate states, among other things.

National Guard troops are exempted from the Posse Comitatus Act, and Congress has in the past allowed an exception for drug enforcement operations-the Secretary of Defense is allowed to provide “any military equipment and personnel necessary for operation of said equipment for law enforcement purposes.”

That means the United States Army, for example, may provide equipment and other support for civilian law enforcement agencies engaged in the so-called war on drugs.

Joe Wallace is a 13-year veteran of the United States Air Force and a former reporter for Air Force Television News