Article !
Sorry. “Alt + s” did not make a section symbol when I was writing the above, it just posted the uncompleted message.
Article 1 Section 8:
What powers does this give Congress over the military? Can they make laws that the President has to follow in his role as CIC? Can they outlaw military techniques, such as outlawing the the use of bombs? Can they require the President to run all orders through a military council?
The precise extent to which Congress has legislative authority over the military has never been entirely explored. For example, legislation enacted since the Vietnam War limits the President’s ability to initiate military action for longer than 90 days without a declaration of war or a resolution supporting the action. This has never been contested because every large-scale military operation since then has had the requisite congressional approval.
While Congress cannot remove the role of the President as Commander-in-Chief, the organization of the military and the precise chain of command is set forth in legislation. The most important legislation currently is the Goldwater-Nichols Act, which removed the Joint Chiefs from the operational chain of command and unified the command of the military branches under the regional combat command system. The Joint Chiefs of Staff currently serve as the President’s military advisors, but any legislation that would require their (or anyone else’s) consent for a military order would be clearly unconstitutional.
Unless, of course, it was an illegal order. Who decides what orders are illegal? Why, Congress, of course. And international treaties which have been ratified by the Senate. If Congress wanted to outlaw bombs, they could refuse to appropriate money for their purchase or operation, they could alter the UCMJ to make bomb-use a crime, and so on.
So, in short, it’s a really hairy question.
Funding is a very powerful control mechanism. Congress has “over-sight” committees which keep track of what the military is up to. By having hearings they can dramatically influence public opinion. They also have the power to declare war, but for many years have allowed the President a free hand is this matter. Also there is the matter of ratifying treaties.
Ditto on Friedo’s post. Congress exerts its constitutional autorities in many ways not commonly known to most Americans. For example, every commissioned officer must have his appointment approved by the Senate, from the lowly 2nd Lieutenant to a five-star general. That goes for every promotion they get, too, and for most major assignments for high ranking generals (ie, a four star general may be ordered to move from being Chief of Staff of the Army to being Commander of Central Command – even if the general maintains his four star rank, that “transfer” must be approved by the Senate.)
Congress also sets statutory maximums for how many soldiers the Army may have, how many sailors in the Navy, etc., as part of the budgetary process.
As to the bombs question, Congress has outlawed the use of certain weapons by a variety of means. The most interesting for the purposes of this discussion may be a protocol to the Hague Convention (if memory serves) that forbids the use of plastic flechettes and booby traps in the lawful conduct of war. Since that treaty was signed by a President and ratified by 2/3 of the Senate, all future commanders in chief are bound by international law (as law of the land of the United States) never to use those weapons.
One interesting note of recent development relates to the whole Iraq torture scandal. In the 2002 memo from the Justice Department that argued that the President has wide latitude to determine how the various prohibitions on torture may be applied, the Justice Department argued that the commander in chief clause in the Constitution trumps all laws and treaties that may restrict the President’s ability to make orders relating to the military. It is an extremely expansive position that, carried to its logical end, would have extremely drastic consequences on the balance of power between the Legislative and Executive Branches. I can’t imagine that the Administration is too eager to try that argument out before the courts, though.
Sure, they could if they wanted to. For example, the United States Army cannot fly its own fixed wing aircraft (granted, this is originally based on the Key West Agreement of 1948 not a congressional act). Another example is the Anti-Ballistic Missile Treaty. Or the military can be told they can’t use biological weapons.