New Paper on the Commander in Chief’s Powers

Some readers of this blog have interests that extend beyond IP, and my job at Pitt extends to evangelizing a bit on behalf of my colleagues.  Thus this post.

My colleague Jules Lobel has posted a provocative new paper on SSRN titled “Conflicts between the Commander in Chief and Congress: Concurrent Power Over the Conduct of War.”  The abstract:

The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration’s constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration’s starting point—that the President has exclusive authority over battlefield operations.

This article challenges that assumption. It argues that Congress and the President have concurrent power to conduct warfare that has been authorized by Congress, with Congress maintaining the ultimate authority to decide the methods, strategies and tactics by which the United States will wage war, if it chooses to exercise that authority. The President can direct and manage military campaigns in the absence of congressional regulation and restrictions, but the only Commander in Chief power that Congress cannot override is the President’s power to command, to be, in Alexander Hamilton’s words, the nation’s “first general and Admiral.” The understanding of concurrent power set forth in this article argues that the two branches power over the conduct of authorized warfare is divided as a practical matter by timing, not subject matter, with the President having the power of initiative over the theatre of war, and Congress having a more deliberative, reflective power, allowing it to check and limit Executive initiative both before and after the Executive acts.

The article is forthcoming in the Ohio State Law Journal.  Here’s the link to the draft.  Please check it out.

[Cross-posted at the Pitt Law Faculty Blog.]