Article II, Section 2, Clause 1: Commander-in-Chief; Heads of Departments; Clemency

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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Section 1 lays out the powers of the President. Clause 1 outlines specific powers exercised by the President alone, without reference to Congress. These fall under three broad subclauses.

The first subclause establishes that the President is the commander-in-chief of both Army and Navy at all times. The President has historically been assisted in this role by both civilian Secretaries and by the senior professional military officers of the armed services. Congress determines by statute the authority of these civilian and professional military officers, but cannot alter the President’s ultimate command authority, since this is established by the Constitution. Put another way, Congress establishes the structure of the chain of command, but the President must always be at the top of that chain.

The concept of ultimate civilian control of the military is deeply ingrained in the ethos and training of the professional officer corps. It is reflected in statutory prohibitions against military officers serving in the senior civilian posts unless they have been in retirement for several years. However, the latter prohibition has occasionally been waived by Congress for the President’s nominees to these positions when the nominee has enjoyed strong Congressional support.

This subclause otherwise was not very controversial with the Framers. They had experienced the difficulties that accompany any attempt to vest command with a group rather than a single individual, and they had concluded from English history that the supreme military commander could not be separate from the political leadership,

The Framers expected the President to give orders on the general movement and employment of military forces. They did not expect him to lead the forces in person, and no President since Washington has in fact done so.

The greatest controversies over this authority have revolved around the so-called war powers. Congress is given the authority to declare a state of war, not the President. To what extent can the President order the military to engage in military operations without Congressional authorization? At the moment, the established framework is that the President can respond for a limited time to military actions by an adversary, on his own authority, without authorization of Congress — a flexibility he clearly must have in an age of devastating surprise attacks. But beyond a statutory time limit, he must request either a declaration of war (which has not happened since World War II) or an authorization for the use of military forces, or AUMF. Such authorizations may limit the theater in which military forces may be employed and establish a time limit, after which the AUMF must be extended by Congress or military actions brought to an end.

The second subclause establishes that all senior officers of the executive department are answerable to the President. By custom, the Attorney General, in particular, enjoys considerable independence in his department, to avoid obvious politicization of federal law enforcement. The President nevertheless has Constitutional authority to require the Attorney General (or any other department head) to give him written opinions on any matters relative to  his department.

This rather odd subclause (as it likely seems to modern readers) is the only residue of attempts in the Convention to impose a council of some kind on the President. In fact, the subclause has the reverse effect. The Cabinet as we have it today is entirely a creation of past Presidents, and some Presidents have never held more than cursory meetings of the Cabinets of a largely ceremonial nature. This has been less true of modern Presidencies, due to the increasing challenges of administration in a ballooning federal government.

The third subclause establishes the power of the President to grant reprieves or pardons for any offense committed against the United States, except that he cannot interfere with or reverse convictions by the Senate following impeachment by the House. This power is effectively unlimited, except that it applies only to offenses against the United States and not to crimes under state law. The President cannot, for example, pardon a person convicted of a crime by a state court. The pardoning power presumably applies to  civil offenses as well as criminal.

The Framers also did not spell out that the President cannot pardon himself. They likely assumed that a President guilty of a federal offense would first be removed by the Senate before being tried in a federal court. It is likely that any President attempting to pardon himself would be reversed by the federal courts on the grounds of Nemo iudex in causa sua (“no man  can be a judge in his own case”.)

The courts have regarded the President’s pardon power as sweeping and general. The President can grant something less than a full pardon, can announce general amnesties (as was done after the Civil War and by President Carter to draft evaders after the Vietnam War) and can grant pardons before a person is actually charged (as President Ford did for President Nixon). However, most pardons are granted to individual convicts on recommendation of the Department of Justice after a formal review. In addition, in modern times, most pardons have gone to persons who have already completed their prison sentences or paid their fines, and chiefly have the effect of restoring voting rights or other civil rights denied convicted felons.

There are some limitations on the pardon power. It cannot grant relief for fines or imprisonment already inflicted. Nor can the President pardon anything but offenses already committed at the time of the pardon. In other words, the pardon power cannot be applied prospectively, or else the pardon power would amount to a suspension of the law. The President also cannot pardon acts of civil contempt, since this would encroach on the prerogatives of the judicial branch. He may, however, pardon convictions for criminal contempt.