On the Commander in Chief Power – Article by David Luban

From Volume 81, Number 3 (March 2008)
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Since the attacks of September 11, 2001, the Bush Administration has made frequent dramatic appeals to the president’s commander in chief power, arguing that his decisions as military commander in chief in the global war on terror cannot and should not be second-guessed by the other branches of government. The “cannot” comes from Article 2 of the Constitution, which assigns the commander in chief authority solely to the president. Presumably this is what Mr. Bradbury, quoted in the epigraph above, means when he asserts that under the law of war the president is always right. The “should not” comes from elementary common sense. It seems self-evident that legislators and judges lack institutional competence to kibitz commanders about military matters. Their meddling would invite disaster. In its strong “cannot” form, the argument holds that it would be unconstitutional to enforce otherwise-valid laws that constrain the commander in chief’s pursuit of the war—a separation of powers argument for what has come to be known as the “commander in chief override” of other laws. In its weaker “should not” form, the argument holds that other branches of government, particularly courts, must adopt an extremely deferential stance toward the commander in chief’s decisions. Lawyers and legislators simply do not backseat drive on the battlefield.