Regulating the Commander in Chief: Some Theories

Abstract

Recent events have caused scholars to consider a long ignored issue: the relation between the commander in chief (CINC) and Congress's powers to regulate the armed forces and captures. The famous Bybee memorandum brought this issue to the fore when it asserted that Congress could not interfere with "the President's direction of such core war matters such as the detention and interrogation of enemy combatants. The memo's critics scoffed at this claim, insisting that Congress may regulate the detention of enemy soldiers. With their articles in this issue, Dean Harold Koh, Neil Kinkopf, and others have added their voices to the clamor against the Bybee memo.Although one might generate any number of theories about the interaction of the Commander in Chief Clause and Congress's war regulatory powers, four seem most plausible. This essay sketches these theories with sufficiently broad strokes that none of these sketches will satisfactorily answer questions about who may regulate certain aspects of a war. In particular, these theories will tell us nothing about whether the Bybee memo or its critics have the better argument about whether Congress can limit the CINC's ability to order coercive interrogation techniques.First, it is possible to suppose that congressional and presidential powers do not overlap at all. A second thesis (the Coterminous Thesis) posits that the powers are coterminous, or at least largely so. A third possibility is what we might call the Partial Overlap. It is possible to suppose that the two powers overlap in some ways, but that each also has an exclusive sphere. The final theory posits that the President has all the powers that Congress has and more, but when Congress acts in its more limited sphere, its rules always trump the President's. Arguments about the structural Constitution that seek to further a particular moral view are likely to be utterly feckless. Torture may be an evil necessary for the successful prosecution of war against Al-Qaeda, or an unspeakable act that benefits absolutely no one. Whatever it is, these difficult moral questions have little to do with whether the Constitution enables the President to order the use of coercive interrogation techniques in the face of a statute that prohibits such means.