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of command. The congressional role in the mentioned regards is re inforced by traditional military reliance on rank and adherence to the seniority system, i.e., "time in grade, time in the service." These factors tend to give Congress a large, if not decisive, role in establishing the formal chain of command. Insofar as lawful orders are concerned, the latter operates exclusively on the basis of “trickle down."
In addition to its power to create offices, art. I. $ 8 Cl. 14 empowers Congress "[t]o make Rules for the Government and Regulation of the land and naval Forces." Judicial decisions applicable to this clause are few and guarded insofar as it relates to the President's power as Commander in Chief. Justice Jackson did not go beyond the observation “that [by] the congressional power 'to make rules for the Government and Regulation of land and naval Forces,' it [the Congress) may to some unknown extent impinge upon even command function." 13
The cou have failed to draw the line between his power and those of Congress, except to proclaim such self-evident dogmas as the President cannot by military orders evade legislative regulations and Congress cannot by rules and regulations impair the authority of the President as Commander in Chief. 14
Although in establishing positions and grades Congress effective ly fixes the line followed when the President transmits battle and other orders, legislative efforts to limit absolutely the exercise of command authority to a single mode or channel raises both constitutional and practical problems. Congress undertook to do that on one occasion and a short time later rescinded its efforts when recommended to do so by President Grant.
Section 2 of the Army Appropriation Act of 1867,15 among other things, provided that all army orders should pass through the General of the Army, who was required to keep his headquarters at Washington and who should not be removed, suspended relieved from his command, or assigned to duty elsewhere, except at his own request or by approval of the Senate. 16
13 Youngstown Co. v. Sawyer, 343 U.S. at 644.
16 16 This provision was one of several legal restrictions that Congress imposed on the removal of federal officials largely because of its differences over reconstruction with President Johnson. The chief of these was the Tenure of Office Act, 14 Stat. 430 (1867), the violation of which led to President Johnson's impeachment and trial and eventual acquittal. The opinion of the Court in Myers v. United States, 272 U.S. 52, 164-166 (1926), which gave the President broad powers to remove executive officials, describes these events as follows:
We come now to a period in the history of the Government when both Houses of Congress attempted to reverse this constitutional construction and to subject the power of removing executive officers appointed by the President and confirmed by the Senate to the control of the Senate-indeed, finally, to the assumed power in Congress to place the removal of such officers anywhere in the Government.
This reversal grew out of the serious political difference between the two Houses of Congress and President Johnson. There was a two-thirds majority of the Republican party in control of each House of Congress, which resented what it feared would be Mr. Johnson's obstructive course in the enforcement of the reconstruction measures, in respect of the States whose people had lately been at war against the National Government. This led the two Houses to enact legislation to curtail the then acknowledged powers of the President. It is true that, during the latter part of Mr. Lincoln's term, two important, voluminous acts were passed, each containing a section which seemed inconsistent with the legislative decision of 1789, (Act of February 25, 1863), 12 Stat. 665, c. 58, § 1, Act of March 3, 1865, 13 Stat. 489, c. 79, § 12); but they were adopted without discussion of the inconsistency and were not tested by executive or judicial inquiry. The real challenge to the decision of 1789 was begun
Continued by the Act of July 13, 1866, 14 Stat. 92, c. 176, forbidding dismissals of Army and Navy officers in time of peace without a sentence by court-martial, which this Court, in Blake v. United States, 103 U.S. 227, at p. 235, attributed to the growing differences between President Johnson and Congress.
Berdahl, whose studies on the commander-in-chief continue to be a frequently cited source in this area, states that “President Johnson signed this [the Army Appropriation] act under protest, holding that it in effect deprived the President of the command of the Army; and having obviously been passed as a measure designed to control him in particular, its injustice and inexpediency were soon recognized and it was soon repealed.” 17 Professor Corwin, previously quoted in support of the view that the President lacks the power of “choosing his subordinates”, characterized the provision as follows: ". the remarkable—and unquestionably unconstitutional—rider' to the Army Appropriation Act of March 3, 1867, by which President Johnson's power as Commander-in-Chief was partially transferred to General Grant. ..." 18
The views expressed by Professor Corwin on section 2 of the Army Appropriation Act of 1867 and legislation authorizing and regulating the commander-in-chief's military subordinates are not inconsistent or contradictory. As indicated, the former was undertaken with the purpose and effect of depriving the President of command of the army and as such, was in contravention of one of the unquestioned powers conferred by the Commander in Chiefship Clause, i.e., “general direction of the military and naval operations” and “control of the movements of the army and navy”. 19 The 1867 law is a far cry from legislation authorizing officer positions, grades and qualifications pursuant to the congressional necessary and proper powers. The latter, supplemented by the Armed Forces adherence to the seniority system, i.e., “time in grade, time in service", may affect the order of hierarchy which is generally described as the chain of command, but it does not deny or prohibit the President from assuming personal direction of military operations. The latter seems to be the prime reason that led Corwin to conclude that the "rider" to the Army Appropriation Act of 1867 was unquestionably unconstitutional.
Another measure having the same origin and purpose was a rider on an army appropriation act of March 2, 1867, 14 Stat. 487, c. 170, $ 2, which fixed the headquarters of the General of the Army of the United States at Washington, directed that all orders relating to military operations by the President or Secretary of War should be issued through the General of the Army, who should not be removed, suspended, or relieved from command, or assigned to duty elsewhere, except at his own request, without the previous approval of the Senate; and that any orders or instructions relating to military operations issued contrary to this should be void; and that any officer of the Army who should issue, knowingly transmit, or obey any orders issued contrary to the provisions of this section, should be liable to imprisonment for years. By the Act of March 27, 1868, 15 Stat. 44, c. 34, 82, the next Congress repealed a statutory provision as to appeals in habeas corpus cases, with the design, as was avowed by Mr. Schenck, chairman of the House Committee on Ways and Means, of preventing this Court from passing on the validity of reconstruction legislation. 81 Congressional Globe, pages 1881, 1883, Ex parte McArdle, 7 Wall. 506.
But the chief legislation in support of the reconstruction policy of Congress was the Tenure of Office Act, of March 2, 1867, 14 Stat. 430, c. 154, providing that all officers appointed by and with the consent of the Senate should hold their offices until their successors should have in like manner been appointed and qualified, and that certain heads of departments, including the Secretary of War, should hold their offices during the term of the President by whom appointed and one month thereafter subject to removal by consent of the Senate. The Tenure of Office Act was vetoed, but it was passed over the veto. The House of Representative preferred articles of impeachment against President Johnson for refusal to comply with and for conspiracy to defeat, the legislation above referred to, but he was acquitted for lack of a two-thirds vote for conviction in the Senate. 17 War Powers of the Executive in the United States 128 (1921). 18 President: Office and Powers, supra, at 463, note 89. 19 War Power of the Executive in the United States, supra, note 17, at 117, 121.
Clearly, Congress in authorizing (or refusing to authorize) positions and grades can have a significant bearing on the President as Commander in Chief, but that fact alone does not make congressional action or inaction unconstitutional. Justice Brandeis, dissenting, dissenting, Myers v. United States, 20 effectively stated that such disharmony is the price exacted by the separation of powers.
The separation of the powers of government did not make each branch completely autonomous. It left each, in some measure, dependent upon the others, as it left to each power to exercise, in some respects, functions in their nature executive, legislative and judicial. Obviously the President cannot secure full execution of the laws, if Congress denies to him adequate means of doing so. Full execution may be defeated because Congress declines to create offices indispensable for that purpose. Or, because Congress, having created the office, declines to make the indispensable appropriation. Or, because Congress, having both created the office and made the appropriation, prevents, by restrictions which it imposes, the appointment of officials who in quality and character are indispensable to the efficient execution of the law. If, in any such way, adequate means are denied to the President, the fault will lie with Congress. The President performs his full constitutional duty, if, with the means and instruments provided by Congress and within the limitations perscribed by it, he uses his best endeavors to secure the faithful execution of the laws enacted. Compare Kendall v. United States, 12
Pet. 524, 613, 626. Although Congress in establishing the hierarchy of responsible parties effectively fixes the line followed when the President gives orders, it seems that legislative efforts intended to limit his sources of advice on military matters would be a futile endeavor.
In summary, Congress by law has effectively established the chain of command and by law has changed it or authorized the President, subject to congressional scrutiny, to change it. If Professor Corwin can be relied on, Congress traditionally establishes the President's military subordinates.
To some extent, the congressional power to make rules for regulation of the armed forces seems supportive of this conclusion although case law is silent on the point. In any event, it is striking that the chain of command accords with the scheme set forth in the basic military legislation of the United States.
The position of Chairman at the Joint Chiefs of staff was authorized by the section 211 of the National Security Act Amendments of 1949,21 which specifically designated the incumbent to preside at meetings of the Joint Chiefs, but he was not to be considered Chief of Staff to either the President or the Secretary of Defense or of the Armed Services. The Act provided that he should have no vote. Briefly, the Chairman, so long as he remains chairman, is prohibited under existing law from exercising military command. Accordingly, placing him in the chain of command for purposes of performing military missions would require two changes in existing law: (1) modification of 10 U.S.C. § 142(c) to permit him to exercise command generally or for particular purposes, and (2) modification of 10 U.S.C. § 124(c) to insert him in the chain of command between the President and Secretary of Defense and combatant command commanders.
20 272 U.S. at 291-292. 21 10 U.S.C. § 142.