Presidential Powers

An integral part of the president's foreign policy role is the enormous power of the U.S. armed forces, over which the Constitution makes the president commander in chief. The president may threaten a foreign nation with force or actually conduct military actions to protect U.S. interests, aid U.S. allies, and maintain national security.

Although the president is commander-in-chief, Article I of the Constitution gives Congress the power to declare war. Despite this apparent constitutional impediment, presidents since Thomas Jefferson have dispatched troops to combat situations without the prior approval of Congress. The Supreme Court held in the Prize cases, 67 U.S. 635, 17 L. Ed. 459; 70 U.S. 451, 18 L. Ed. 197; 70 U.S. 514, 18 L. Ed. 200; 70 U.S. 559, 18 L. Ed. 220 (1863), that the president has the authority to resist force without the need for special legislative action.

In times of crisis, the president has the power to commit U.S. forces, but the Vietnam War led Congress to place limits on the presidential war power. The War Powers Resolution of 1973 (50 U.S.C.A. §§ 1541 et seq.) restricts the president's power to mobilize the military during undeclared war. It requires the president to make a full report to Congress when sending troops into foreign areas, limits the duration of troop commitment without congressional authorization, and provides a veto mechanism that allows Congress to force a recall of troops at any time.

Following the September 11 terrorist attacks on the United States, Congress passed a resolution authorizing the president to use force to fight a WAR ON TERRORISM. President George W. Bush issued military orders in October and November 2001 that mobilized NATIONAL GUARD and Army Reserve units and directed the detention of ENEMY COMBATANTS by the military. In a controversial move, President Bush authorized military tribunals to try suspected terrorists. After the U.S. invasion of Afghanistan, many suspected terrorists were captured and moved to military prisons for indefinite terms of detention. The invasion of Iraq by U.S. and British forces in March 2003 was authorized by Congress in the fall of 2002, again giving the president as commander-in-chief broad authority to conduct a military campaign.

The president also has broad powers over domestic policy during wartime. President ABRAHAM LINCOLN issued an order to military commanders suspending HABEAS CORPUS during the Civil War, which allowed the military to arrest and detain persons without trial for an indefinite time. Congress later passed a law suspending habeas corpus, but after the Civil War, the Supreme Court, in EX PARTE MILLIGAN, 71 U.S. 2, 18 L. Ed. 281 (1866), condemned Lincoln's directive establishing military jurisdiction over civilians outside the immediate war zone.

During the early days of U.S. involvement in WORLD WAR II, President FRANKLIN D. ROOSEVELT issued orders authorizing the establishment of "military areas" from which dangerous persons could be expelled or excluded. This order was used to designate the West Coast a military area and to remove and imprison 120,000 Japanese Americans in "relocation centers" for the duration of the war. The Supreme Court upheld the relocation order in KOREMATSU V. UNITED STATES, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), finding that the government had a compelling national security interest during a time of war to take such extreme measures.

Following the September 11 attacks on the United States, Congress passed the USA PATRIOT ACT, which gives the president increased powers to wiretap suspected terrorists without judicial supervision as well as the power to indefinitely detain ALIENS who are suspected of TERRORISM. U.S. citizens who have been held as enemy combatants in military prisons without the right to consult with an attorney or have a criminal trial have challenged the president's authority. In Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), the Fourth Circuit Court of Appeals ruled that the courts must defer to the president when dealing with issues of national security. Therefore, the president could order the indefinite detention of enemy combatants.