Commander in Chief: War, Foreign Affairs, and the Constitutional Power to Impeach a President

Yesterday, I discussed the president’s law-execution powers and his independent and coequal power and duty of faithful constitutional interpretation. Today, I discuss the president’s powers over war, peace, and foreign affairs. I will also examine the most powerful tool the Constitution provides for combating abuse of presidential powers: impeachment.

Of all the powers that Article II of the Constitution vests in the president of the United States, none is more important—and none more potentially dangerous—than the fearsome combination of the “executive power” over foreign affairs and the power of military “Commander in Chief” of the nation’s armed forces. The president is both the nation’s leading diplomatic officer and its leading military officer. Let’s start with the role of diplomat in chief before turning to the more explosive powers of the president as military Commander in Chief.

The Foreign Affairs Power

Article II of the Constitution vests the president with “the executive Power” of the United States, a term that historically included both the ordinary law-executing power and the power to direct and conduct a nation’s external relationship with other nations—what is today colloquially dubbed the “foreign affairs power.” There is no separate “Foreign Affairs Clause” in the Constitution. The foreign affairs power was understood as an aspect of the executive power.

Article II also contains specific provisions concerning appointment of US diplomatic officers, the receiving of foreign ambassadors, and the making of treaties. These are not really the textual source of the president’s foreign affairs powers so much as specific limitations on (or clarifications of) that power, fashioned because of the framers’ desire to qualify or check certain aspects of the traditional executive power over foreign affairs. For example, the Senate must consent to the appointment of principal executive officers, including ambassadors to other nations. The Senate also must consent, by a two-thirds vote, to any treaty that is to have the force of law, as distinguished from a mere presidential agreement or deal with a foreign nation.

The rule for treaty making is laid out in detail precisely because it is a deliberate qualification of the general executive power over foreign affairs. Where the Constitution does not carve out a specific limitation or qualification, however, the residuum of the foreign affairs power of the nation remains with the president as part of “the executive Power.”

It follows that President Obama had the constitutional authority to reach an “executive agreement” with another nation—such as the one he concluded with Iran concerning that nation’s nuclear development. Yet such an agreement does not have the constitutional status of binding US law, as a treaty would. What one president can do by executive agreement, another president can undo. President Trump can rescind, modify, or simply disregard any prior “executive agreement” as an exercise of the general executive power over foreign affairs.

Now, to the extent that implementing a non-treaty “executive agreement” requires legislative action, such as the appropriation of funds or the changing of statutory provisions, Congress possesses a “check” on such agreement. Remember, the president cannot alter or amend law on his own; the power to make executive agreements does not rightfully include a power to repeal or rewrite statutes. The same goes for rescinding executive agreements: cancelling a presidential “deal” with a foreign nation cannot cancel laws enacted by Congress.

On occasion, though, presidents break this rule, Congress goes along, and the Supreme Court even upholds the violation! A notable, dramatic example of this was the Court’s unanimous decision in Dames & Moore v. Regan (1980) upholding the executive agreement with Iran ending the Iran hostage crisis, even though the deal included unauthorized changes in US law in the form of extinguishing private legal claims on Iranian assets. The Iran hostage deal demonstrates a disturbing truth: in foreign affairs, practical reality rules more than the Constitution. A precedent like Dames & Moore doesn’t actually change the Constitution. But it does show that constitutional principle does not always win the day, and that presidential usurpations of power in this area tend to be sustained—a true danger, when one considers what kind of deals an irresponsible president might fashion with foreign nations.

What about treaties? Can the president simply disregard them? The surprising and unsettling answer is yes. The president’s foreign affairs power is best understood as embracing the power to interpret, suspend, modify, or outright terminate treaties with other nations. The Senate’s shared power over treaty making does not encompass or imply a correlative shared power over treaty implementation, execution, or termination. That prerogative remains with the president as an aspect of his power over foreign affairs. But remember: presidential termination of a treaty cannot repeal laws passed by Congress implementing that treaty. To take a current illustration, President Trump can, as a matter of foreign relations, purport unilaterally to “terminate” NAFTA, but he cannot actually change the trade and tariff laws enacted by Congress.

In practice, the president’s power over foreign affairs can be a power to make peace or provoke war. The framers of the Constitution deliberately designed the presidency to vest such powers in a single individual in order that such delicate and important matters could be conducted with energy, secrecy, and dispatch. But there is no question that such powers, vested in unfit hands, are extraordinarily dangerous.

Commander in Chief

Yet, in terms of importance and danger, the foreign affairs power is mild compared with the president’s power as military Commander in Chief. Simply put, the president commands America’s armed forces and controls the exercise of America’s vast military might—including nuclear weapons—and its covert quasi-military operations. He conducts the nation’s military engagements, makes decisions concerning troop deployment, military strategy and tactics, the kind and degree of force to be employed, who and what are appropriate military targets, rules of engagement, intelligence and covert operations, interception of enemy communications (including with US citizens), and interrogation of enemy prisoners. He determines the interpretation, application, and force of international law and the law of war.

These are awesome powers. The exact extent of such powers remains contested, and Congress possesses powers with which to push back, including legislative power over the decision to declare war, certain ancillary questions of military organization, discipline, and property seizures and appropriations. But unquestionably, the role of “Commander in Chief” of the most powerful military in the history of human civilization is the most important of the constitutional powers of the president of the United States today.

The Power to Declare War

This is not to say that the president can do whatever he wants in the exercise of his military authority. Constitutionally, Congress has the power “to declare War.” The president does not. As I have written previously in this space (and noted in essays co-authored with Luke Paulsen and with Robert George), the framers did not intend for the president to be able to initiate a state of armed conflict with another nation or force. Rather, they consciously removed that traditional aspect of the executive power from the president and vested it in Congress, on the theory that in a republican government the power to take the nation to war should never be vested in one man.

The power to “declare” war—a careful modification of earlier draft constitutional language that would have vested Congress with the power to “make” war—meant that the president retained the traditional executive power to respond in defense of the nation to sudden attacks or imminent danger. But the “Commander in Chief” power of the president was never meant to be a plenary power to initiate offensive military conflict in anything other than a defensive, emergency, or rescue situation. It was meant to vest in the president complete control over the management—the “execution” as it were—of military conflict, where constitutionally authorized by Congress.

Presidents have sometimes usurped this power, initiating hostilities or claiming to have the power to do so on their own. Truman did this with the Korean War. Clinton did it with the Kosovo War. Obama claimed it twice: the air war against Libya, whatever one thinks of its policy merits, had no legitimate legal basis. (Incredibly, his Justice Department’s argument was that this was not a war because the President didn’t mean it to be a war, and that other presidents had done things like this in the past.) He asserted the same power with respect to Syria, in order to punish its use of chemical weapons against its own people early in that civil war, but did not follow through.

Sometimes presidents get away with this. Congress is often passive in the face of presidential war-making initiative. Its appropriations check on the military is rarely used to constrain such usurpations, and almost never effectively. Moreover, certain of Congress’s war-waging authorizations are cast in dramatically broad terms, like the Tonkin Gulf Resolution (the legal authority for the Vietnam War) or the 2001 Authorization for Use of Military Force (a sweeping delegation of war-waging power and discretion to the president). The courts are extraordinarily reluctant to get involved in such matters.

For better or worse, our president is currently armed with an arsenal of terrifying military weaponry, sweeping congressional authorizations for the use of military force, and the full powers of military command constitutionally afforded by the Commander in Chief Clause. On top of that is layered the recent illegitimate tradition of presidents pressing these powers beyond their limits, the resulting misperception that the president has plenary power to initiate hostilities at his sole option, and a modern pattern of congressional and judicial passivity and pliancy.

It is obviously vital that such extraordinary raw power—partly constitutional, partly a function of practicality, and partly usurped—be exercised by a Commander in Chief possessed of good judgment, steady temperament, maturity, and responsible morality. The concern of a great many is that the present officeholder does not possess these qualities to anywhere near the requisite degree.

The Constitutional Power to Impeach and Remove a President

If the office of president of the United States is one of vast, formidable, and potentially dangerous constitutional powers, it remains true that the exercise of those powers, and their abuse, is subject to powerful constitutional checks. It has become fashionable in modern times to look to the courts as the institution to check the president’s misuse of constitutional powers. But the framers’ original vision was that Congress, the representative branch and the one closest to the people, would have the ultimate power to check the pretensions of an errant, willful, or irresponsible president.

Congress’s powers of legislation, appropriations, and investigation, and the Senate’s power to withhold its consent to executive and judicial appointments, are familiar day-to-day checks. The president can do a lot of terrible things, but if he lacks funds to spend, his actions grind to a halt. Congress’s power to legislate (or not) is a power to frustrate a president’s preferred policy agenda, which can be leveraged to constrain presidential conduct generally. And the president cannot work his will effectively without loyal subordinates.

But it is impeachment that is the truly extraordinary check—the ultimate constitutional trump card (so to speak). Article II of the Constitution, after setting forth the powers and duties of the president, concludes with this broadly worded description of allowable grounds for impeachment: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Article III defines treason as “levying War” against the United States or “adhering to their Enemies, giving them Aid and Comfort.” In context, that definition limits the circumstances in which treason can be made a criminal offense, punishable in courts of law. It does not limit what Congress could consider “treason” for impeachment purposes. In any event, “Treason” and “Bribery” do not exhaust the permissible grounds for impeachment, which extend to “other” offenses that can be considered “high Crimes and Misdemeanors.” This of course is the key language: what is included in, or might be judged to fall within the meaning of, “high Crimes” and “Misdemeanors”?

The best short answer is that the term has an intuitive core meaning and a less definite periphery left to the good faith constitutional judgment of the bodies charged with exercising that judgment—the House in its power to bring impeachment proceedings and the Senate in its power to judge charges brought by the House. The impeachment standard does not have a single, fixed, determinate meaning. The practical power to interpret and apply it to particular circumstances is vested in Congress.

At a minimum, “high Crimes and Misdemeanors” can include ordinary statutory crimes for which any citizen might be arrested and punished by law. If Congress judges commission of an ordinary statutory crime sufficiently important to justify removal from office, the Constitution surely permits that result. But the impeachment standard plainly is not limited to such garden-variety crimes. It extends to “high” offenses of a public-political nature as well—matters such as betrayal of public trust or misuse of official power.

There is strong historical evidence that the term “misdemeanor” at the time of the founding carried the sense of misconduct or misbehavior—literally, not demeaning oneself properly in high office (“misdemeaning”)—rather than the modern sense of a minor or less serious ordinary criminal offense. The term “high . . . misdemeanor” thus embraces, broadly but indefinitely, misbehavior in office serious enough to be judged worthy of removal from office. The offenses of treason and bribery are illustrative of such seriousness—and of disloyalty to duty—but do not limit the range of judgment.

A Deliberately Open-Ended Standard

Who then judges the character and seriousness of the misconduct at issue? Here is where the Constitution’s structural logic and allocations of power come in. The framers, seemingly by design, left it to the two houses of Congress (the House in its power to bring impeachment proceedings and the Senate in its power to judge charges brought by the House) to fill in the broad interstices of this standard by exercising their respective good-faith constitutional judgments as to how to apply the standard in particular situations.

Historical evidence of the framers’ original intentions and understandings strongly confirms the breadth and indeterminacy of the impeachment standard and the structural inference that Congress has power to decide such questions in practice. Alexander Hamilton, in Federalist 65, said impeachment was appropriate for “those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust.” That is a broad standard indeed. Such offenses, Hamilton continued, are “of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” Impeachment was thus a “NATIONAL INQUEST into the conduct of public men.” In applying this standard to courts in Federalist 81, Hamilton explicitly embraced “usurpations” of power as a legitimate basis for impeachment.

At the Constitutional Convention, the framers had debated the best way to describe the impeachment power in adequate breadth, considering such formulations as “mal-practice or neglect of duty,” “corruption,” “mal-administration,” and attempting to “subvert the Constitution.” No term proved fully satisfying; each had flaws. In the end, the synonyms and alternatives encircle the language actually chosen and tend to confirm its general sense and indeterminate boundaries. Ratification statements reflect the broad understanding that impeachment could remove officials “who behave amiss,” or who “abuse” or “betray” their “public trust” or commit political offenses against the spirit of the Constitution. James Madison went so far as to say that a president might be impeached for sheltering “suspicious” persons!

This history was well plumbed in debates over whether Richard Nixon or Bill Clinton had committed impeachable offenses, and produced no clear political consensus on either occasion. The uncertain lesson of those recent congressional deliberations seems to be that the scope of “high Crimes and Misdemeanors” remains subject to legitimate debate; that obstruction of justice—political and legal dishonesty in office—appears to fit within the range of that meaning; but that a president cannot as a practical matter be removed from office unless he has lost the political support of the nation and of his own political party in Congress.

Perhaps the most interesting political precedent is the impeachment of President Andrew Johnson in 1868. Johnson, Lincoln’s inept, racist, cantankerous, obstructionist successor, was a truly dreadful president, whose actions were often quite harmful to the nation. But his “crimes” were chiefly political. Radical Republicans in Congress attempted to cast those offenses in “legal” terms—arguing, for example, that Johnson had violated the Tenure of Office Act by firing Secretary of War Stanton. But the real offense was that Johnson was a really bad president. Johnson came within one vote of being removed from office. He was probably saved by the political considerations that Johnson’s term was nearly over, he had already been rendered ineffectual and irrelevant, and Ulysses S. Grant was waiting in the wings almost surely to be elected as his successor. Better not to rock the boat, some thought.

The Johnson impeachment poses an interesting question. If Congress believes that a president has acted in serious violation of the Constitution, abused his office’s legitimate powers, betrayed the interests of the nation, or failed to fulfill his constitutional duties as Congress sees them, may Congress impeach and remove a failed president on such a basis? Does not the breadth of the Constitution’s language admit of impeachment on such grounds? Is that not what the framers contemplated in designing an explicitly political process for making such judgments?

In my view, the Constitution does grant Congress such power and Congress was wholly within its rights in seeking to remove Andrew Johnson. Impeachment was designed to be a formidable congressional check on the formidable powers of the president—power counteracting power, ambition checking ambition. The standard chosen seems deliberately open-ended, to leave judgment to the pull and tug of competing branches of government.

The question today—and perhaps of many subsequent days—is whether President Trump’s behavior in office constitutes permissible grounds for impeachment. Ultimately, that is up to the House and Senate to decide. It is their task to discern whether any of this president’s acts, or the accumulated weight of several of them, constitutes sufficiently egregious misbehavior or misconduct in office, abuse or misuse of power, betrayal of constitutional duty or loyalty, or outright violation of the Constitution to justify his removal from office.