When is the President the Commander in Chief?

In the 20th century, America has been involved in 19 conflicts in which Congress has not declared war as the Constitution requires and service members have lost their lives in each of these 19 conflicts. The total number of service members who died as a result of these unconstitutional wars, which are conflicts not declared by the constitutionally predetermined authority, is just less than 100,000. But even the loss of one life is a tragedy to the family of the killed service member and is completely illegal when the conflict was not approved by representatives of the people and the States.

Conflicts that are not declared by Congress are unwarranted and most of this unwarranted militarism is the result of the American public’s apathetic understanding of and desire for accountability to constitutional war powers, the Law of Nations, the Just War Doctrine,[1] and the role of the President as Commander in Chief. If the President is always the Commander in Chief, then one would expect he has the authority to use the military, without the consent of Congress, whenever and however he thinks best to ‘protect’ the nation. Coincidentally, many Presidents in the 20th century have used the military in this manner. The belief that the President is the Commander in Chief when he takes the oath of office is not in accordance with the "supreme law of the Land", which is the US Constitution. The first clause in Article II, Section 2 of the US Constitution declares, “The President shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States.” Without ambiguity this clause states the President only becomes the Commander in Chief when the armed forces; i.e., Army, Navy, Marine Corps, Air Force, National Guard, and Reserves are “called” into Service of the United States.

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The power to “call” up the armed forces into “Service”, is only delegated to Congress and is found in Article I, which lists most all[2] of the powers delegated to Congress. "We the people" have delegated the following powers to Congress in clauses 11 through 16 of Article I, Section 8: “to declare war,” “raise and support Armies,” “provide and maintain a navy,” “make Rules for the Government and Regulation of the land and naval Forces,” “to provide for the calling forth the Militia,” “to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.” Considering that the clause from Article II restricts the President’s role as Commander in Chief to when the armed forces are called into actual Service and Article I provides Congress a wide range of powers including the power to declare war, employ the armed forces, regulate them, and maintain and fund them, it is clear only Congress can authorize the use of military force. It is also important to note the use of military force includes aggressive action without the use of troops on the ground, like bombing another nation from aircraft or shooting missiles into a country. America’s involvement in armed conflict was intended to be completely within the authority of Congress; not in the hands of one man. But, not even Congress has been delegated the authority to draft American citizens to serve in a war they declare. The words used to express the powers delegated to Congress for forming armies, ‘raise’ and ‘calling forth’, are clear and concise in their meaning. ‘Raise’ means to make or form; to collect; to enlist and ‘calling forth’ means bringing or summoning to action. Neither of these two words even implies Congress has the authority to order citizens, against their will, to serve in a war for which citizens do not agree. This is a check and balance against unconstitutional wars, because if the President or Congress engaged America in an unconstitutional war, without the power to draft citizens into service, they would have to worry if the citizens would support them in their endeavor. Article I also makes clear standing armies are not authorized. Clause 12 and 13 of Article I, Section 8 states “To raise and support armies, but no appropriation of money to that use shall be for longer term than two years;” and “To provide and maintain a navy.” The Constitution uses the term “armies” instead of “an army” and it only authorizes “armies” to be funded for two years at a time, whereas it authorizes a standing navy to be provided and maintained at all times. The reason for this is that the founders understood standing armies pose a threat to the liberty of the citizens. Sailors will not march into States and cities to impose martial law upon the citizens, but standing armies can. A navy and, by the same reasoning, an air force provide a true defense against foreign invasion while not posing a threat to the liberty of American citizens. If you are sick to your stomach when hearing about American service members killed in undeclared wars around the world, then demand your US Representative and Senators limit the use of the military to only when Congress constitutionally declares war; ensure they uphold the Law of Nations and the Just War Doctrine when voting to declare war; and help others understand, especially politicians and news anchors, the President is not the Commander in Chief unless war is properly declared. [1] American Founding Principles, Law of Nations, September 18, 2012. [2] Generally, Article I covers everything concerning the Legislative Branch, Article II covers everything concerning the Executive Branch, and Article III covers everything concerning the Judiciary Branch, but the Legislative Branch is the only branch delegated a power in another Article.