Delegating Commander-in-Chief Powers
Lee Harris asks “Does the President Need to Be Commander-in-Chief?” in an essay by that name at TCS Daily. The seemingly obvious response is Yes.
Harris notes, though, sometimes an elected president comes into office who “knows absolutely nothing about military matters.” Further, it must be Constitutional since John Adams designated George Washington the “Lieutenant General and Commander-in-Chief of all the armies raised or to be raised in the United States” in 1798 on the eve of a war with France that ultimately did not emerge. This, in Harris’ judgment, makes it ipso facto Constitutional since, “both Adams and Washington surely knew the original intent of the founders better than any of us could claim—they were the founders.”
Leaving aside whether calling Washington “Commander-in-Chief” made him Commander-in-Chief in the Constitutional sense (until Rumsfeld dictated otherwise, it had been the custom for decades for four star commanders at PACOM, CENTCOM, SOUTHCOM and the like to be referred to as “Commander-in-Chief” or CinC of their area of operations) delegating arguably the most important power of the presidency is a horrible idea. Indeed, Harris’ arguments in favor of the policy are virtually self-refuting:
First of all, by the nature of his appointment, the new Commander in Chief would have a broad and bipartisan consensus behind him. Both the President and two-thirds of the Senate would be on record of having delegated to him full responsibility over decision-making in Iraq. Second, since the new chief would be recognized by a consensus as “the sole decider,” this would avoid the Constitutional crisis that will inevitably come about if there is a tug of war between President Bush and an unfriendly Congress over the question of who is the decision-maker in Iraq—a tug of war that seems increasingly likely in the months ahead. Third, the new Iraqi Commander in Chief would be authorized to make policy beyond the term of the present administration. He would hold his position by appointment, and would be the Iraqi Commander in Chief during the next administration, no matter who became President. This would preserve continuity in our policy, and it would immediately remove Iraq as an election issue in 2008. The man in charge of Iraq would already have been chosen, and chosen by the consent of both parties. Fourth, by turning the decision-making duties about Iraq over to someone else, President Bush would effectively silence those who have accused him of making Iraq a personal obsession, and that our national policy is being dictated by nothing more than his ego.
So, you’d essentially bypass the Constitution and have a dictator for life in charge of warmaking?! We’d get right around those pesky elections and checks and balances, too!
Rather than this “admittedly novel” idea, why not try something even harder: Having Congress do the job they’re elected to? The president would be commander-in-chief and would delegate the day-to-day operation of military affairs to appointees confirmed with the advice and consent of the United States Senate. The Senate–and the House, too in its capacity as originator of spending bills–would hold hearings, demand accountability, and conduct oversight.
Harris fears this “would only serve to divide and embitter us further.” It’s unclear why that’s a bad thing. After all, if there are serious divisions over something as serious as war, we probably ought to hash them out, no?
UPDATE: Dave Schuler recommends Jack Balkin‘s related post from Monday. While it’s over-the-top in its criticism of the Bush administration’s zeal for unchecked power (as if that’s somehow unique for wartime presidents) he outlines the philosophical disputes over the meaning of “commander-in-chief” nicely. Further, we agree on the fundamental premise that “*precisely* because the President is Commander-in-Chief, and ultimately in control of the military, someone else in civilian government who is not under his control must be able to check his adventures and hold him accountable to law.”