American Elephants


President Obama is not Commander in Chief of Foreign Policy by The Elephant's Child

Alan M. Dershowitz wrote this week that  “Politicians should stop referring to the President of the United States as the Commander in Chief. And Barack Obama frequently refers to himself in those terms. Mr. Dershowitz has tried to clarify the situation:

But the president is not the Commander-in-Chief for purposes of diplomatic negotiations. This characterization mistakenly implies that President Obama — or any president — is our Commander, and that his decisions should receive special deference. This is a misreading of our constitution, which creates a presidency that is subject to the checks and balances of co-equal branches of the government. The president is only the commander in chief of “the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.” This provision was intended to assure civilian control over the military and to serve as a check on military power.

The only people he is empowered to command are soldiers, sailors and members of the militia — not ordinary citizens.

This important limitation on the president’s power is highly relevant to the current debate about Congress having the authority to check the president’s decision to make the deal that is currently being negotiated with Iran. The Constitution is clear about this. The President is not the Commander-in-Chief of our nation’s foreign policy. When he is involved in “high-stakes international diplomacy,” his involvement is not as Commander-in-Chief of our armed forces, but rather as negotiator-in-chief, whose negotiations are subject to the checks and balances of the other branches.

As President, he cannot even declare war, though he can decide how a war should be fought after Congress declares it. He cannot make a treaty without the approval of 2/3 of the Senate. He cannot appoint Ambassadors without the consent of the Senate. And he cannot terminate sanctions that were imposed by Congress, without Congress changing the law. Were he the “Commander-in-Chief” of our country — as Putin is of Russia or as Ali Khamenei is of Iran — he could simply command that all of these things be done. But our Constitution separates the powers of government — the power to command — into three co-equal branches. The armed forces are different: power is vested in one commander-in-chief.

A president is the head of the executive branch, one of three co-equal branches. As head of the executive branch, he can negotiate treaties, agreements and other bilateral deals, but Congress has a say in whether to approve what the president has negotiated. If the deal constitutes a “treaty” within the meaning of the constitution, then it requires a formal ratification by congress. Executive agreements can be undone. Any impression that the president alone can make an enforceable and enduring deal with Iran regarding its nuclear weapons program is incorrect.

Alan M. Dershowitz is a Professor of Law emeritus from Harvard Law, and a frequent commenter on matters legal and constitutional.

 


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