THE COMMANDER IN CHIEF AT THE LOWEST EBB —FRAMING THE PROBLEM, DOCTRINE, AND ORIGINAL UNDERSTANDING
David J. Barron
& Martin S. Lederman
Over the past half-century, discussions of constitutional war powers have focused on thescope of the President’s “inherent” power as Commander in Chief to act in the absenceof congressional authorization. In this Article, Professors Barron and Lederman arguethat attention should now shift to the fundamental question of whether and when thePresident may exercise Article II war powers in contravention of congressionallimitations, when the President’s authority as Commander in Chief is at its “lowest ebb.”Contrary to the traditional assumption that Congress has ceded the field to thePresident when it comes to war, the Commander in Chief often operates in a legalenvironment instinct with legislatively imposed limitations. In the present context, theBush Administration has been faced with a number of statutes that clearly conflict withits preferred means of prosecuting military conflicts. The Administration’s response,based on an assertion of preclusive executive war powers, has been to claim theconstitutional authority to disregard many of these congressional commands.This Article is the first of a two-part effort to determine how the constitutional argumentconcerning such preclusive executive war powers is best conceived. Professors Barronand Lederman demonstrate that, notwithstanding recent attempts to yoke the defense of executive defiance in wartime to original understandings, there is surprisingly littlehistorical evidence supporting the notion that the conduct of military campaigns is
Professor of Law, Harvard Law School.
Visiting Professor of Law, Georgetown University Law Center. These articles grew out of aconversation that we began in
with a group of our former colleagues from the Office of Le-gal Counsel, including Walter Dellinger, Vicki Jackson, Dawn Johnsen, Neil Kinkopf, TrevorMorrison, Randy Moss, Beth Nolan, Nina Pillard, Jeff Powell, Richard Shiffrin, Chris Schroeder,and Michael Small. We are very grateful to them for encouraging this project, and for their criti-cal insights. Professors Jackson, Johnsen, and Schroeder also gave us excellent editorial advice.We would also like to thank Sam Bagenstos, Jack Balkin, Jerome Barron, Patricia Bellia, PhilipBobbitt, Bradford Clark, David Cole, Noah Feldman, Jerry Frug, David Glazier, Phil Heymann, Juliette Kayyem, David Luban, Bill Marshall, Frank Michelman, Martha Minow, Gerry Neuman, James Oldham, Deborah Pearlstein, Rick Pildes, Jed Purdy, Mark Rosen, Laura Rosenbury, Lau-ren Rothfarb, Larry Tribe, Mark Tushnet, Adrian Vermeule, Robin West, John Witt, JulianZelizer, and Jonathan Zittrain; participants in the Duke Faculty Workshop, the Georgetown Uni-versity Law Center Faculty Research Workshop, the Harvard Law School Colloquium on Consti-tutional Law, the Harvard Law School Conference on the Commander in Chief, and conferencesat the Cardozo School of Law and the Vanderbilt Law School; as well as the students in theGeorgetown University Law Center Spring
seminars in Current Issues in National SecurityLaw and Separation of Powers (in particular, Ateesh Chanda, Matthew Fisher, and Andy Silver),and the students in the Fall
Public Law Theory Seminar at Washington University School of Law. Richard Fallon, Jack Goldsmith, David Golove, and Michael Seidman have provided usespecially thorough and invaluable guidance throughout this endeavor. Rich Chen, Meghan Mor-ris, Adam Pollet, Brishen Rogers, Shalev Roisman, and Phil Tedesco have provided outstandingresearch assistance. The extraordinary efforts of Jennifer Locke Davitt, Rhona Williams, andtheir colleagues at the Georgetown Law Library, and Janet Katz and her colleagues at the Har-vard Law Library, have been indispensable to these Articles.