- Army and Navy—the regular armed forces.
The Constitution recognizes the “Army and the “Navy” as the regular “armed forces”, which are entirely subject to Congress and to whom the President is made “Commander in Chief….when called into the actual service of the United States;” (Article II, Section 2, Clause 1).
- Does the Constitution require an Army or Navy? No, they are contingent.
An army or navy is not required constitutionally. Congress is given the authority to:
1.) “raise and support Armies”— Article I, Section 8, Clause 12
2) “provide and maintain Navy”—Article I, Section 8, Clause 13
But Congress could decide that it wasn’t “necessary and proper” (Article I, Section 8, Clause 18) to have an army or navy—we didn’t need one, it is an “optional structure.” In fact, the Constitution makes it clear that there is a suspicion, at least with respect to an army. The Founding Fathers were very suspicious of “standing armies” as they had a “run in” with one in particular: the British standing army and General Gage, which lead to the Battle of Lexington and Concord. The Founders were highly skeptical of that type of institution as they also knew of experiences in the 1600′s in England and standing armies in the Roman Empire with the Praetorian Guard. So there was a great deal of historical background that informed them about the dangers of standing armies. Which is why they put a provision in the Constitution that said appropriations for a standing army could last only “two years” (Article I, Section 8, Clause 12). Why?
Because that’s the term of the House of Representatives (Article I, Section 2, Clause 1). So one Congress might pay for a standing army, and then the people decide, “We don’t want this”, and the next Congress, in the House of Representatives, in which all spending bills must originate (Article I, Section 7, Clause 1), would change its composition, and the new House of Representatives would refuse to fund this standing army, which was inimical to THE PEOPLE and the standing army would dissolve for lack of money. If you look at the whole structure there, this “standing army” is something that is “Constitutionally Equivocal”—“Yes you may want it, but on the other hand you may not.”
The navy is another situation because it’s difficult to imagine a navy attempting to conquer a country as large as the United States. So the Founders did not look at a navy as a serious threat.
- The Constitution requires the Militia to exist at all times and to be ‘well regulated’.
The Constitution recognizes the Militia as preexisting and establishes them as permanent governmental structures. These were not merely theoretical “Militia”, but were actual institutions that existed as a matter of fact and law—the only institutions of their kind. Militia Structures then existed in 1788 and had been in existence at all times for over 150 years throughout America, settled and regulated pursuant to Colonial and then State statutes.
- The notion that the President has ‘inherent powers’ in the manner of a German Führer or an Italian Duce´ is pure hogwash. The President is not the ‘decider’.
There is much political discussion about the President’s “inherent powers” as “Commander in Chief”. The theory being “I’m the ‘Commander in Chief’ and this gives me some kind of “inherent” power that comes with that designation”. Wrong. The President is not the Führer, he’s not the Duce´, he is not the “decider”. The President is the constitutional “Commander in Chief” which is a very limited window of authority. And we do not look to other models of governance for his powers, we look to the document that delegates authority to the President, the Constitution.
With respect to the Militia, “the President shall be Commander in Chief of the Militia of the several States when called into the actual Service of the United States…” (Article II, Section 2, Clause 1). And it is Congress who decides when that is, “The Congress shall have Power To …provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions….” (Article I, Section 8, Clause 15). So the president has no power to “call forth the Militia”, only Congress does, and Congress’s power for doing so is limited to those three particulars.The Constitution emphasized “when in the ‘actual’ service of the United States…”. The word “actual” is there for a special emphasis. The Framers did not trust the President, because the last “decider” they had was King George III from whom they indicted in the Declaration of Independence as committing “a long train of abuses and usurpations…evinc[ing] a design to reduce them (THE PEOPLE) under absolute despotism,…”.
If we go back to English law in the pre-constitutional period, the King had all power over war and peace, he could unilaterally declare war. He was the generalissismo of all forces on land and sea so the King was the unitary executive in that particular area. The Constitution took all those powers away from the King:
• Who “declare[s] War”? Congress (footnote 1)
• Who “raise[s]” Armies? Congress (footnote 2)
• Who “provide[s]” for the Navy? Congress (footnote 3)
• Who writes the regulations for the “land and naval Forces”? Congress (footnote 4)
• Who “call[s] forth the Militia” ? Congress (footnote 5)
1.) U.S. Const. art I, sec. 8, cl. 11.
2.) U.S. Const. art I, sec. 8, cl. 12.
3.) U.S. Const. art I, sec. 8, cl. 13.
4.) U.S. Const. art I, sec. 8, cl. 14.
5.) U.S. Const. art I, sec. 8, cl. 15.
- George W. Bush Administration floats the concept of ‘inherent powers’ of the President
During the George W. Bush administration a concept was “floated around” that the position of “Commander in Chief” gave some kind of “inherent powers” to the President —like a German Führer or Italian Duce´. The point being that the President was “Commander in Chief” of the entire country, in the way that Hitler was the Führer of Germany or Mussolini was the Duce’ of Italy. And that is exactly wrong – 180° in the wrong direction. The Constitution does not provide for that kind of authority for the President at all. If you look at Article II, Section 2, Clause 1 of the Constitution where the status of the “Commander in Chief” is defined:
“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;…”
U.S. Constitution Article II, Section 2, Clause 1