Lawbreaker in Chief, the article by Jed Rubenfeld, misses one point on the authority to operate outside the provisions of a law passed by Congress, and that is that the Constitution gives the President specified powers not granted to Congress, that of Commander in Chief of the Armed Forces, and the power to conduct relations with foreign nations. In fact, in those areas, the decisions of the President have the force of law.
It is the same power that a police officer or military officer has in issuing orders. A military officer who orders his unit to defend or attack a piece of ground, that order has the force of law.
The extension of Commander in Chief powers past the point in which military forces are directed on the ground, sea, or in the air, is problematic as the Constitution gives the Congress the authority to determine what kind of military the President gets to command, including the organization, staffing, training, and doctrine that the forces are developed under. Of the eighteen specified powers of the Congress in Article 1, at least seven deal with military issues.
Since the creation of the Defense Department after WW2, the Congress has ceded it’s authority to the Defense Department in what used to be routinely performed by the Congress. The failure of US military forces in Iraq and Afghanistan to have a post invasion plan is due to a major shift in the regulation (doctrine) and organization of the military called “Transformation”.
“Transformation” is predicated on what is best for the retention of military personnel, and not upon actually winning. “Transformation” is more concerned with fighting a war than winning it. Winning a war is not in the best interests of the Pentagon as ending the war would end the funding. And that includes the billions of acquisition costs intended for a war that is entirely imaginary.
Congress should focus on what their authority is in the military arena instead of wandering outside their Constitutional authority such as putting time lines on the commitment of troops. The meddling in Turkish affairs just recently is a equally unconstitutional and which has, as intended, a devastating impact on the conduct of both military and diplomatic relations in the Middle East.
The division of national authority specified in our Constitution is a part of the Anglo-American political tradition with the separation of those powers going back to the English Civil Wars. There, the King wanted to wage war on French Catholics with whom the traders of London were trading with. End result, a Parliamentary Army today knows as the British Army, and the beheading of the King. The meddling of the Continental Congress in military operations reinforced the notion that Congress should stay out of the conduct of military operations.
The sticky part of the wicket is that while the Congress has the exclusive power to declare war, the conduct of military operations against a hostile foe or in the enforcement of the Presidents conduct of relations with foreign relations does not need a declaration of war to open fire. A declaration of war is a legal state, that may or may not involve military forces. Battles may be fought without a declaration of war. The only safeguard, as with the British, is the funding which cannot include a restriction of Presidential powers, lest the funds be treated as unencumbered money free to be spent as the President chooses.
The Founders clearly understood that giving the President (or King) a large standing military force would tempt the usage thereof. The British system kept the Regular British Army small with large supplements of colonial troops, such as the Indian Army from which Dr. Watson retired.
The “well regulated militia” guaranteed in the Second Amendment is the default military force for the United States. These state forces, however, are restricted from having ships of war or standing military forces in time of peace. Likewise, the “regulations” (doctrine) of the state forces is that which the Congress directs. Here also the Congress has failed by leaving these decisions to the Defense Department without adequate review, such as having hearings on the Quadrennial Defense Review (QDR) which should be a Congressional task.
On an ominous note, the Army and Air Forces raised during the Cold War that used to be stationed overseas are being brought back to the Continental USA so that they can sally forth in ten days, win in thirty and rebound in another thirty. Given the failure of this approach, the Pentagon forges ahead with “Transformation” with a pig-headedness not seen since Sir Douglas Haig drenched the trenches of Flanders with British blood. One wonders in Rumsfeld’s New Model Army has a Pride’s Purge in mind. One wouldn’t like to see a “Rump Congress”