President and National Security
Readings emphasize the growing
centralization of power over national
security:
 Movement of power from Congress to the
president
 Movement of power of State and Defense
to the Presidents staff and NSC
Louis Fisher: Invitation to
Struggle
Argument:
Modern presidents have used their powers
as commander in chief to conduct military
operations without gaining the approval of
Congress.
This practice differs from the “expectations
of the framers” of the Constitution.
Early models
The British and European monarchical
governments vested full authority over
security and warmaking with the executive.
The King had full power over the army and
navy, and could enter into binding treaties
with other nations.
Early American Government
The Articles of Confederation rejected that
model:
 No executive
 Vested foreign policy and warmaking
powers with Congress.
 With the drafting of the Constitution,
warmaking powers remained with
Congress.
Critique
Fisher argues that the Founders rejected the
European model by referring the extensive
powers of Congress under the Articles, then
extending the argument to cover the Constitution.
Yet even if we grant his argument re: the Articles, it
is very difficult to extend it to the Constitution.
One of the reasons for the rejection of the
Articles was the weakness of the national
government when it came to national security.
Enhancing national security under the
Constitution entailed creating a strong executive.
Interpretation of the Debates
Fisher attempts this link by referring to the
debates over the Constitution:
 Evidence of unease at the prospect of a
powerful executive with powers of
monarch over war and peace
 Emphasis on the role of Congress and
particularly the Senate with regard to
matters of foreign policy and war
Critique
While Fisher argues that the division of powers over
foreign policy and war between Congress and
president a “decisive” rejection of the earlier
model, he underestimates the powers given to the
President and how closely they resemble the old
model: president as appointer of officers,
commander in chief, chief diplomat. This is
hardly a decisive rejection.
Powers of Congress
Fisher emphasizes the number and importance
of the powers given to Congress:
 Finance military
 Make military regulations
 Call, arm, and discipline militia
 Commerce power, which was directly
related to issues of war.
Warmaking
Fisher argues that the Convention created an
important distinction:
 The president was given the power to conduct
military operations (“make war”) when faced
with a sudden attack on US or US forces. To be
used in an emergency, to repel attacks.
 Congress given the power to declare war– to give
approval for the initiation of military operations
in the absence of an attack on the US
Appropriations
Fisher also argues that a number of other powers
given Congress make clear that military initiative
resides with Congress, not the president:
 Congress’s power of the purse in general, and
particularly over the military, meant to keep
power out of the hands of the executive, both to
create military forces, and to decide when to use
them.
Meaning of Commander in Chief


Congress has powers that limit the authority of
the President as commander in chief, in that
Congress, not president, calls out militia
Having the president act as commander in chief
was meant:
To unify command, not initiate war
 To keep control of the military in civilian hands
 Thus not much more than a title.
Critique: this ignores the evidence from the Convention
and from Washington that condemned Congressional
interference in military matters. Giving office to
president means something.

Presidential Practice
Fisher emphasizes that early presidential practice
recognized the power of Congress in this area:]
 All early military operations authorized by
Congress by declaration of war or other means.
 Lincoln acted without Congress, but both he and
Congress recognized that those actions, while
essential because of the emergency, were
unconstitutional. They were regularized
retroactively by Congress.
Presidential Practice
Thus while Fisher concedes the necessity of action
by the president, argues that such actions
undertaken without Congress are
 Unconstitutional, and
 Extraordinary.
Critique: but should necessary actions by a
commander in chief be deemed unconstitutional
without explicit textual foundation?
Aren’t all military actions in some sense
extraordinary?
Modern presidents
Truman, Bush and Clinton have used their
powers as Commander in Chief to initiate
military actions. In doing so they have
acted unconstitutionally and contrary to the
wishes of the founders and early
presidential practice.