The record shows that Congress has indeed given, in Walsh’s words, “generous support” to the Guard. Continuing his reflections on the Eightieth Congress, the president went on to wonder if
. . . any organization has been so successful in the legislative field in so brief a period as the National Guard Association. It is indeed a great accomplishment to have attained all the major legislative objectives of this Association.
Two years later the NGA Legislative Committee reported that the Association had “been phenomenally successful in obtaining the enactment of legislation essential to its well-being and development.”13 So long as the Guard retains its jealously protected dual status, this will continue to be the situation. Ensconced behind the militia clauses as an “empire within an empire,” this premier military lobby effectively dominates those congressional proceedings which interest it. It is a Frankenstein monster created by the Constitution of the United States. That document underwrites its slogan that “There will always be a National Guard.”
THE SEPARATION OF POWERS: DUAL CONTROL OVER THE NATIONAL FORCES
In many respects the most significant aspect of the separation of powers is not the relative division of power between President and Congress, but the effects which this division has upon the power of other groups. The existence of two coordinate bodies means that the power of each of these bodies vis-à-vis other groups is less than it would be if either possessed full sovereign authority. The principal beneficiaries of this spreading of power have been organized interest groups, bureaucratic agencies, and the military services. The separation of powers is a perpetual invitation, if not an irresistible force, drawing military leaders into political conflicts. Consequently, it has been a major hindrance to the development of military professionalism and civilian control in the United States.
With only minor modifications the Framers reproduced in the Constitution the division of authority over the military which prevailed in England and the colonies in the middle of the eighteenth century. “The purse & the sword,” said George Mason, “ought never to get into the same hands [whether legislative or executive].” The President inherited the powers of the English king, Congress the powers of the English Parliament. The executive authority of the President, Hamilton stated in The Federalist, “will resemble equally that of the king of Great Britain and of the governor of New York.” The Framers did, however, make one major adjustment in favor of the legislature. In giving Congress the war power, they altered British practice and established a significant precedent in the evolution of representative government. The result was that Congress was given the power
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces . . . And
To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
And the President was made “Commander in Chief of the Army and Navy of the United States.”14
The general intent of this division of power is clear. Further problems arise, however, from the nature of the grant of presidential power. This clause is unique in the Constitution in that it grants authority in the form of an office rather than in the form of a function. The President is not given the function “to command the Army and Navy”; he is given the office of “Commander in Chief.” This difference in form is of considerable importance. By defining the presidential power as an office, the Framers left undefined its specific powers and functions. This eased the approval of the Constitution in the ratifying conventions, but it gave subsequent generations something to cogitate about and argue about. What, after all, are the powers of the Commander in Chief? They might range from the extremely broad power to conduct war to a narrowly restricted power of military command. They certainly exclude all powers specifically assigned to Congress or the states, and they probably include all purely military powers not so assigned. But does the office possess nonmilitary powers as well? The Framers themselves seemed to hold conflicting opinions on this point. The Supreme Court in 1850, however, declared that the duty and power of the President as Commander in Chief were “purely military,” and denied the similarity between the presidential authority and the royal prerogative.15 So long as the Commander in Chief power is interpreted as purely military, it really adds little authority to the presidential office. Indeed, down to the Civil War it was, in Professor Corwin’s phrase, “the forgotten clause” of the Constitution. In the Civil War and in World War II, however, Lincoln and Roosevelt used the clause to justify an extraordinarily broad range of nonmilitary presidential actions largely legislative in nature. The justification of these actions by the Commander in Chief clause was persuasive, however, only because John Rutledge defined that power as an office rather than a function. It may be argued that the office of Commander in Chief possesses authority to seize a strike-bound war plant. It would be impossible to argue that the function of commanding the Army and Navy implied such authority. In other words, the clause has been of relatively little direct use in securing civilian control over the military. Indeed, in one respect it has been directly detrimental to such control. But because it was phrased as an office rather than a function, it has been of great use to the President in expanding his power at the expense of Congress. This, in turn, has broadened the area of conflict between these two institutions and, consequently, has indirectly further impeded civilian control by increasing the likelihood that military leaders will be drawn into this political controversy.16
The means through which the President has exercised his powers with respect to military affairs include the appointment of military personnel, the issuance of executive orders and commands, and reliance upon the instrumentality of the civilian secretary. Congressional weapons include statutes, appropriations, and investigations. These weapons have normally been wielded on behalf of Congress by the military and naval affairs committees, the appropriations committees, and special wartime investigating committees. On occasion both sides have found it necessary or expedient to appeal to the military for support of their plans or to seize upon and push military plans for purposes of their own. The involvement of the national officer corps in politics has, consequently, been less consistent and more sporadic in nature than the involvement of the militia officer corps. The division of authority between two separate governments demanded a permanent political spokesman for the interests of the militia. The division of authority between two branches of the same government led to the transitory involvement of individuals and cliques of officers in controversies over military strength, military strategy, military organization, and military appointments. Until 1940 these issues generally were not of great importance in national politics. Consequently, the separation of powers was primarily a passive, latent obstacle to the emergence of military professionalism. Its implications for civilian control were not clearly obvious because military policy was of relatively minor concern to both Congress and President.
Military Strength. The pattern of national politics respecting the strength of military forces tended to obscure the extent of military participation in politics. Prior to 1940 the executive was generally more favorably inclined toward a larger military establishment than was Congress. Congress had less immediate contact with foreign dangers and was under greater popular pressure to cut spending. In addition, the easiest way to assert congressional authority in the budget process was simply to reduce executive requests. Thus, the institutional jealousy of the two branches, even apart from constituent pressure, tended to make Congress less favorable to military appropriations. The result was that military leaders were generally on the
side of the President; they appeared before congressional committees to support his program. Military involvement in politics on the side of Congress tends to be conspicuous and dramatic. Military involvement in politics on the side of the President tends to be subtle and less obvious. Undoubtedly, some administrations did use popular officers to rally congressional support for their military proposals. But it is extremely difficult to draw the line between the soldier giving professional advice to Congress as to what the country needs for its defense and the soldier lobbying with Congress for the administration. The two roles are distinct in theory but blended in practice. In the period following World War II on the other hand, a number of significant variations from this pattern have occurred, with Congress taking a more sympathetic view to military requests than the President.
Military Strategy. It is more difficult to identify continuing executive and legislative positions on strategy than on military strength. To the extent that there were persistent patterns, Congress generally favored a more aggressive and offensively minded strategy, while the President supported caution and restraint. When the issue was joined, both have been able to find elements in the officer corps favorable to their positions. Officers who did not find support for their strategic views in the top levels of the executive branch had no trouble in locating congressmen willing to push their strategy. Similarly, congressmen who wanted to attack the administration with respect to its strategy were usually able to find officers willing to lend an air of professional respectability to their criticism.
The most extreme example of the mixing of politics and strategy occurred in the Civil War. The purpose of the congressional Committee on the Conduct of the War was defined by one of its founders as “to keep an anxious, watchful eye over all the executive agents who are carrying on the war at the direction of the people . . . We are not under the command of the military of this country. They are under ours as a Congress.”17 The Committee favored a “radical” policy involving stringent opposition to slavery and an aggressive “On to Richmond” strategy. The President and General McClellan were for going slow on both counts. Consequently, the Committee had little hesitancy in using its power to undermine McClellan and force his withdrawal from command. Its members were certain that their own capabilities with respect to military strategy made them at least the equal of the generals. In opposing McClellan, they were assisted by many Army officers who shared their views and who actively subverted “Little Mac’s” authority. On the other hand, generals such as Hooker and Burnside, who were sympathetic to the Committee’s position, were hamstrung by the conspiratorial activities of more conservative subordinates.
Military Organization. With respect to military organization a natural coincidence of viewpoints led military officers to side with Congress against President. Congress normally tried to enhance its own power against the executive by detailed legislative prescription of military organization. Military officers generally supported this as tending to strengthen their position against the President and civilian secretaries. Consequently, military organization issues present many more obvious examples of military involvement in politics than do those with respect to strategy.
During the Civil War, Congress undertook to lay out the details of military organization, and forced Lincoln to divide the army into corps so as to reduce the number of troops under McClellan’s command. After the war, the Army Appropriation Act in 1867 directed the President to issue all orders and instructions relative to military operations through the General of the Army (Grant). It also provided that the General of the Army should not be removed or assigned to command elsewhere than at Washington, except at his own request or with the approval of the Senate. This effort to transfer some of the President’s authority as Commander in Chief to a military subordinate was undoubtedly unconstitutional, but it is not the only instance in American history where it has been attempted.
Congress has generally supported military officers in the War Department opposed to the centralization of authority in the Secretary of War or in the General Staff. The independent position of the Corps of Engineers with respect to its civil functions is only the most extreme example of this tendency to combine military and legislative power against executive power. In 1901, four staff chiefs — the quartermaster general, the surgeon general, the paymaster general, and the chief of engineers — got Congress to strengthen their position despite the opposition of the Secretary of War. Subsequently, in the controversy over the relative powers of the Chief of Staff and the adjutant general, the Secretary of War successfully backed the former, but the latter received vindication at the hands of a congressional committee. In the army organization act of 1920, Congress required the Secretary of War to submit the comments of the General Staff, pro and con, with any proposed legislation unless this was “incompatible with the public interest.” The effect of this provision was to invite general staff officers “to try their controversy with their chief before a Congressional committee.” In 1914 and 1915 naval officers under the leadership of Admiral Fiske worked with congressional sympathizers to secure the creation of the office of the Chief of Naval Operations despite the opposition of the President and Secretary Daniels.18
Military Appointments. No single pattern of military involvement in politics prevails with respect to personnel appointments. The extent to which individuals become involved and the side they choose are functions of their views on policy and their political affiliations. Both Congress and the President, however, usually tried to maximize their own influence by securing the appointment of officers generally sympathetic to their views on military affairs and by blocking the appointment of those who were hostile. In the Mexican War, for instance, the two senior generals in the Army, Major Generals Scott and Taylor, were Whigs. President Polk, a Democrat, feared that he could not trust these officers and did not wish them to become popular military idols. Hence he asked Congress to create the position of lieutenant general whose occupant would outrank Scott and Taylor. To this position he planned to appoint a Democratic senator, Thomas Hart Benton. But Congress refused to go along with the idea, and in 1848 Taylor was elected President. During the Civil War, the Committee on the Conduct of the War actively tried to advance its favorite generals and get rid of those who opposed its policies. A routine, if unusually important, exercise of congressional influence occurred in the appointment of Dewey to the command of the Asiatic Squadron prior to the outbreak of the Spanish-American War. Secretary of the Navy Long was opposed to Dewey; Assistant Secretary Theodore Roosevelt supported him. T. R. called in Dewey and asked him if he knew any Senators. When the naval officer admitted to knowing Senator Proctor of Vermont, that legislator was induced to approach President McKinley, and the appointment went through.19
The differing interests of Congress and the President thus determined the side which military officers supported. On issues of military strength they were normally with the President, on organizational issues they were with Congress, on strategy they were divided, and on personnel issues they followed their own best interests. Whenever significant questions of military policy arose, the national officers were drawn into the legislative-executive struggle on one side or the other. The separation of powers made it impossible for American officers ever to be at ease in their professionalism.
THE COMMANDER IN CHIEF CLAUSE: THE POLITICAL-MILITARY HIERARCHY
One major function of the Commander in Chief clause has been to justify the exercise of broad Presidential powers in times of national emergency. A second principal function has been to complicate the achievement of civilian control in the executive branch. Just as the separation of powers is a standing invitation to military leaders to bypass the President and go directly to Congress, the Commander in Chief clause is a standing invitation to bypass the civilian secretary and go to the President.
The Commander in Chief clause is the outstanding example of the Framers’ mixing of political and military functions. The same thinking which permit
ted them to envision Senators becoming generals in war also permitted them to accept a civilian President as military commander in chief. In most societies, from primitive nomadic tribes down to their own time, it had been customary for the chief of state also to be the chief military commander. This had been true of the Greek city state, the Roman republic, and the European national monarchies; it was to be true of Napoleonic France. Virtually all the state constitutions at the time made the governor commander in chief of the militia. Military command was as much a function of the chief executive as the appointment of administrative officials or the negotiation of alliances. It was only natural for this role to be assigned to the President. He was to be a republican Soldier-President patterned upon the Royal Warrior of the European states.
The extent to which the Framers expected the President to exercise military functions may be seen in their failure to curb his authority personally to lead troops on the field of battle. Such a restriction was contained in the New Jersey plan and had the support of Hamilton. The Convention, however, explicitly rejected these attempts to limit his authority to command in person. Some criticisms of this power were voiced in state conventions but there, too, efforts to curtail it were unsuccessful. The intention and the expectation of the Framers and of the people was that the President could, if he so desired, assume personal command in the field. Early presidents did not hesitate to do this. Washington personally commanded the militia called out to suppress the Whiskey Rebellion. James Madison took a direct hand in organizing the ineffectual defense of Washington in 1814. During the Mexican War, President Polk, although he did not command the army in the field, nonetheless personally formulated the military strategy of the war and participated in a wide range of exclusively military matters. The last instance of a President directly exercising military functions was Lincoln’s participation in the direction of the Union armies in the spring of 1862. The President personally determined the plan of operations, and, through his War Orders, directed the movement of troop units. It was not until Grant took over in Virginia that presidential participation in military affairs came to an end. No subsequent President essayed the direction of military operations, although Theodore Roosevelt in World War I argued conversely that his previous experience as Commander in Chief proved his competence to command a division in France.20
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