Article I, Section 8 of the US Constitution (in relevant part):



This means that Congress has the power to make rules for the government and regulation of the military.

Article II, Section 2 of the US Constitution (in relevant part):



This means that the President is the Commander in Chief of that military.

Is there a constitutional conflict in light of the President's current assertions regarding his "inherent authority"

Are Congressional regulations of the military binding to the President as Commander in Chief of that military?

Is there a constitutional conflict in light of the President's current assertions regarding his "inherent authority"
No. Commanding is very different than setting rules and regulations. Those roles have been clearly defined throughout our history.

Are Congressional regulations of the military binding to the President as Commander in Chief of that military?
The President legaly does not fall under the regulations of the military. He/She does not wear a uniform and is not in any way a member of the armed services.

Now, the case can be made that it should be different, but legally that is how it stands.

Is there a constitutional conflict in light of the President's current assertions regarding his "inherent authority"
Yes! Commanding actually is determined by setting rules and regulations. These include doctrine, training, force structure, materiel selection, rules of engagement, Geneva Convention, etc., and many that are "historically assumed". Those historical roles have not all been clearly defined throughout our history.

And, military history, both before and after 1775 when the Army began, have been demonstrably revisionist (see for example the initial and final reports on the Iraq war--huge differences!--why?--which is the one we use?) and therefore are most certainly NOT to be considered in the missions and functions definition of the "Commander and Chief" of the military.

Are Congressional regulations of the military binding to the President as Commander in Chief of that military?
Yes indeed! The CFR's are full of stuff Congress says the "military" is to do, including the so-called "Universal Code of Military Justice".

My pet peeve is "equality before the law" beginning with the simple "howcome the president doesn't, to my knowledge, get sworn in as part of the military, as does the rest of the military, "to protect and defend the Constitution from enemies both foreign and domestic, etc.", and howcome the swearing in is different for enlisted and officer personnel?"

To quote a recent book title somewhat, an enlisted person can be just one bullet away from being an officer

Is there a constitutional conflict in light of the President's current assertions regarding his "inherent authority" Again, yes indeed! But more importantly, there is a basic disconnect between "we the people's version of the missions and functions definition of the "Commander and Chief" of the military. (This I hope you will at least consider if you have not served. If you have served at some time below O-3 or E-6, and you disagree, tell me about it please! Tks!)

Are Congressional regulations of the military binding to the President as Commander in Chief of that military?

I think this was established as far back as the "Quasi-War" with France in 1798. Congress exercised its power of declaring war, but did not give an open-ended declaration. Instead, it authorized only limited warmaking, mostly against French shipping. This to me suggests that Congress has the power to restrict how the President conducts war. I'm not aware of anyone having raised constitutional objections at the time.

Yes, it seems to me that commanding involves understanding and adhering to rules and regulations. What it does not involve is altering those rules and regulations... particularly when it is another branch of government that has explicit and exclusive power under the Constitution to do so. The only option a President has in terms of altering rules and regulations for the military is to veto a bill that creates those rules and regulations or to suggest to Congress that the rules and regulations be altered. The President as Commander in Chief does not have the authority to alter the rules and regulations himself.



This does not mean that he isn't bound by the rules and regulations of the military. He still must adhere to them in his role as Commander in Chief... at least in the sense that his commands must be guided by those rules and regulations. The Commander in Chief does not have the authority to command the military to violate or ignore those rules and regulations.

It does mean he isn't bound to those rules. Is it a good idea to follow them? Absolutely, as the leader of the military the president should set an example, but he can't be tried under military law.

An example: Bill Clinton commits adultery. Under UCMJ, he would have been tried, and as a high ranking person probably forced out of the military. Now he did have to deal with Congress and public opinion, but he could not be tried under UCMJ like a member of the armed services. That was a big sore point with many people in the military at the time for a perceived double standard.

At what point did I mention trying Bush under military law? At no point? Thank you. The manner in which the President is bound by the rules and regulations is that he has no power to alter those rules and regulations passed by Congress. He must, as is specifically stated in the Constitution, faithfully execute those rules and regulations that come about through Article I, Section 8. That is his Constitutional duty. Nowhere in the Constitution does it say he can do anything to alter those rules and regulations beyond the power of the veto and the suggestion to Congress that they be altered. That is it. That is how they are binding to him.

The President was meant to be a civilian Commander in Chief and not a member of the military for a reason – to keep this country from being under military rule. This does not mean, however, that his commands are not to be guided by laws.

I fully agree with you. We're talking about two different sets of rules. The president must follow the rules set forth by Congress on how the military can or cannot be used. The president is not subject to the internal rules and regulations of the military. It may just be confusion on semantics here, but there is a huge difference between these sets of rules.

The questions were very clear in that they deal with the President's current assertion that he has the "inherent authority" to bypass FISA... a rule that governs and regulates the military. It's isn't a matter of semantics. The President is constitutionally bound to faithfully execute the provisions of FISA. If he does not like the provisions of FISA, he can suggest that Congress amend it. The question of whether the AUMF provides authorization is a different question, but there is no "inherent authority" to bypass a law passed by Congress that governs and regulates the military.

Is there a constitutional conflict in light of the President's current assertions regarding his "inherent authority"

The constitution has built in leverage for the executive branch to act on habeas corpus and on the 4th amendment as to examples. Both leave open the authority to determine rebellion, invasion and reasonable search.

Are Congressional regulations of the military binding to the President as Commander in Chief of that military?

Congress, whether they know it or not, provided the president powers in the War Power Resolution and when they declared the president to do whatever necessary to defeat the terrorists. By any means could have put checkpoints everywhere, curfews, much more then the President has done. Remember the Patriot Act. The president is merely doing his job, by monitoring communications everywhere. He is very legal. The Late Justice Rhenquest spoke to this issue. I said that the USSC has swung the way of the times, in war to support greater protections and less of a boundary on rights, and in peace, a greater protection of rights. As to the present issue of monitoring, no one has been violated. In about 1975, a law was passed to preclude the federal government from sharing any personal information on a citizen. Has anyone had this done?

The authorization did not say whatever necessary... it said all necessary and appropriate force. Meaning that what was authorized needed to be necessary and it needed to be appropriate. They have not proven that it was necessary to bypass FISA, nor have they proven that it was appropriate. It is reasonable to assume that appropriate would mean within the bounds of the law... meaning in accordance with FISA.



Yes, I remember the Patriot Act. Why do we need the Patriot Act, which amended FISA to make it easier to conduct surveillance, when the President is going to bypass its provisions?



Merely doing his job... And how do we know that he isn't overstepping his bounds? How do we know he isn't spying on people who oppose his administration? How do we know he isn't spying on organizations that merely protest the war in Iraq? Oh, yeah... they told us they wouldn't. And they never lie.

You see, I want the terrorists to be surveilled. I do. But the manner in which this President is going about it is a license for tyranny. He may not be going about it tyrannically himself, but without the proper checks and balances he opens the door for any President, himself included, to abuse that power. I am unwilling to give any President the authority to spy on American citizens without a warrant and no congressional or judicial oversight. Considering the reasons this country exists in the first place, I am willing to be money that the framers of the Constitution had no intention of granting the Commander in Chief this unchecked authority. There is nothing in the Constitution that grants the President the unlimited authority to engage in warrantless searches. Absolutely nothing.



Really? And what did the late Justice have to say about the President's wiretapping of Americans? What did he have to say about the lack of congressional oversight? Oh, yeah... nothing because he was dead a few months before it came to light. So, no... he did not speak to this issue. He spoke in generalities about protections and rights. He did not speak about the President bypassing laws that govern and regulate the military... laws that he is, according to his constitutional duty, supposed to faithfully execute.