4/17/2024 0 Comments Commander in chief clause![]() In particular, the essay explores two fundamental questions about the Calling Forth Clause: First, is the Clause limited on its face to only the “militias”? If so, does the Clause therefore not even apply to today's National Guard, the members of whom participate in a “dual enlistment” system whereby they are simultaneously members of their state guard and the “National Guard of the United States,” and are acting in the latter capacity whenever “federalized”? Second, if the Calling Forth Clause does not today limit the domestic use of the military, are there any other constitutional limitations on the domestic use of the military? What about statutory limitations, such as the Posse Comitatus Act of 1878? To what extent might such limitations unconstitutionally infringe upon the President's constitutional authority as Commander-in-Chief? ![]() In this symposium essay, the author’s focus is more on the overlooked constitutional text itself, and what significance it may have for our modern understanding of the limitations placed upon the domestic use of the military by the Commander-in-Chief. ” In other writings, the author sought to emphasize the significance of the various statutes that Congress has enacted pursuant to its authority under the Calling Forth Clause, most of which are today codified at 10 U.S.C. Perhaps no provision has been more disregarded than the so-called “Calling Forth” Clause of Article I, which empowers Congress “o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. So I would have to understand what the point was, what the issue was, and the language you read in context before I could respond to that.Disputes concerning the scope of the government's domestic crisis authority under the Commander-in-Chief Clause-particularly as of late-have tended to neglect the potential significance of other constitutional provisions in understanding the Constitution's separation of emergency powers. And I have to say I don’t know - that’s one of the 80,000 memos I don’t know about. SENATOR DURBIN: Would the anti-torture statute be unconstitutional simply because it conflicts with an order issued by the president as commander in chief? I hope (as a former Executive branch lawyer) that that is not correct - and if it is, it’s extremely troubling. Roberts also testified that “any lawyer for any administration would have taken the same position” on the question that he did in the February 1984 memo - i.e., that there’s a “difficulty” in recognizing any role for Congress in terminating military hostilities. Whether one agrees or disagrees that thes question of Congress’s power to end military action “depends on the circumstances,” surely the question - and Roberts’s testimony on it - is of the gravest importance. (In fairness, Senator Leahy did not push Judge Roberts on the question once he conceded that it’s a Youngstown Category III case.) More troubling still, Roberts did not disavow the suggestion in an Executive branch memo he wrote that Congress could not end a war over the President’s objection, and testified that whether Congress has the power to do so “depends on the circumstances.” That is to say, he was unwilling to concede that if the national legislature passes a law requiring cessation of certain hostilities - presumably by a supermajority sufficient to override a presidential veto - the President must abide by that statute. Unfortunately, Judge Roberts did not go so far as to say that the torture statute is actually constitutional even when it restricts the President from using the techniques that he thinks are most effective in defeating the enemy. (See my posts here and here.) Therefore, Roberts’s testimony might be seen as a major step away from the current Administration’s views. Thankfully, Judge Roberts has testified that the torture question falls within Category III of Justice Jackson’s justly famous Youngstown concurrence - that is, it’s a case in which Congress has spoken clearly and has prohibited certain presidential action pursuant to the legislature’s express article I authorities, and thus the President’s power is “at its lowest ebb.” There is no such concession (or even citation to Youngstown) in the infamous OLC Torture Memo. Perhaps it isn’t at this moment as politically salient as contentious issues such as abortion and the Commerce Clause, but I can think of no issue less dry, or more important, than whether Congress has the constitutional power to restrict certain forms of military action or presidential wartime conduct. In his invaluable as-it-happens blogging of the hearing, Tom expresses surprise that the Leahy/Roberts exchange has become so “heated” on what Tom calls a “pretty dry issue” - namely, whether Congress can, by statute, require cessation of military hostilities or prohibit the President from using torture.
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