The Congress over the years also has imposed some limitations on the forms through which the President exercises his appointing and dismissing powers with respect to holders of military office. Appointments to regular military office are required pursuant to the Congress' authority in Article II, section 2 of the Constitution to be subject to Senate confirmation. For removal of officers, the Congress has provided that a formal dismissal by the President shall be replaced by an administrative discharge if a general court-martial is requested and finds accordingly. See 10 U.S.C. S 804. It also has established that military personnel in general can be forced to leave the service only in conformity with procedures the Congress set up in law for administrative discharges or as part of a detailed personnel system. See, e.g., 10 U.S.C. SS 611-645. The Supreme Court has never squarely faced whether Congress has power by itself to remove an officer from the armed forces. Cf. Blake v. United States, 103 U.S. 227 (1881); 12 Ops. Atty. Gen. 4 (1866). - Except as noted below, however, the Congress has never sought to interfere with Presidential removals of officers from particular command assignments as, for example, President Harry S Truman's relieving of General Douglas MacArthur.5/ And for nearly two hundred years of U.S. constitutional history, the Congress has stayed away from purporting to direct by statute the actions of the President as Commander in Chief, powers which the courts have held to be extremely broad. Cf., e.g., Korematsu v. United States, 323 U.S. 214 (1944); Prize Cases, 2 Black 635 (1863); cf., e.g., DaCosta v. Laird, 471 F.2d 1146 (2d Cir. 1973); United States v. Marchetti, 466 F.2d 1309, 1317 (4th Cir.), cert. denied, 409 U.S. 1063 (1972). In particular, where the heart of the command power military orders and operations were concerned, the Congress has sometimes criticized, but has not sought to legislate.6/ The only exception located occurred in circumstances that underscore the established rule. On one occasion a statute was passed, and remained briefly in force, that purported to prescribe the chain of command below the Commander in Chief. was widely criticized as unconstitutional at the time, and as was It 5/ 6/ Thus, for example, the members of the Joint Chiefs of Staff, A notable exception is the War Powers Resolution of 1973, 87 5 the case with the infamous Sedition Act of 1798,7/ that judgment has become the verdict of history. In the administration of Andrew Johnson, on March 2, 1867, "three acts were passed which brought executive power to he lowest point it has ever reached before or since."8/ The first of the trilogy, the Reconstruction Act,9/ abolished existing governments and placed the South under military rule. The Tenure of Office Act10/ forbade the President to remove civil officers without the consent of the Senate, and when violated by Andrew Johnson became the occasion for his impeachment trial and the unsuccessful attempt to remove him from office. Finally, a section of the Army Appropriation Act11/ specified that "all orders and instructions relating to military It also provided that the General of the Army (then General Ulysses S. Grant) "shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said headquarters, except at his own request, without the previous approval of the Senate."12/ Act of July 14, 1798, ch. 74, 1 Stat. 596. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 276 (1964) (Footnote omitted): "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Eric L. McKitrick, Andrew Johnson and Reconstruction 13 8/ 9/ Act of March 2, 1867, ch. 153, 14 Stat. 428. 10/ Act of March 2, 1867, ch. 154, 14 Stat. 430. 11/ Act of March 2, 1867, ch. 170, 14 Stat. 485. 12/ The section in full provided: "And be it further enacted, That the head-quarters of the General of the army of the United States shall be at the city of Washington, and all orders and instructions relating to military operations issued by the President or Secretary (Footnote Continued) During debate on the measure, many members of Congress had complained that in specifying through which officer he must transmit orders, the provision was a flagrantly unconstitutional effort to limit the powers of the Commander in Chief. Senator Reverdy Johnson of Maryland observed that "I shall content myself, therefore, with saying Senator Fessenden of Maine, on the other hand, argued that the power of Congress to prescribe rules means that "it has a right, moreover, to say that all orders shall pass through him as General."14/ Senator Buckalew of Pennsylvania replied: "What powers, then, are conferred upon the of War shall be issued through the General of the army, and, in case of his inability, through the next in rank. The General of the army shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said head-quarters, except at his own request, without the previous approval of the Senate; and any order or instructions relating to military operations issued contrary to the requirements of this section shall be null and void; and any officer who shall issue orders or instructions contrary to the provisions of this section shall be deemed guilty of a misdemeanor in office; and any officer of the army who shall transmit, convey, or obey any orders or instructions so issued contrary to the provisions of this section, knowing that such orders were so issued, shall be liable to imprisonment for not less than two nor more than twenty years, upon conviction thereof in any court of competent jurisdiction." 13/ Cong. Globe, 39th Cong., 2d Sess. 1851 (1867). 14/ Id. at 1852. 15/ Id. at 1853. Similarly, in the House opponents of the measure protested that "It has always, so far as my reading has taught me I am aware that the limitations of the Constitution have not borne very heavily upon those who are in the majority here."16/ The legislation was widely seen as, like the Tenure of Office Act, a vehicle to tempt the President into disobedience which then would provide a basis for impeachment charges.17/ President Johnson, however, signed the bill because he did not want to veto the accompanying appropriation provisions and leave the Army unpaid. His message back to the House on the same day of passage complained of that section and another in these words: "The act entitled 'An act making appro- "These provisions are contained in the second 16/ Id. at 1354 (Rep. Niblack). 17/ "But if the President shall issue such an order then he is to be guilty of a misdemeanor. If guilty of misdemeanor in carrying out the provisions of the Constitution he then becomes liable to impeachment, the very thing that gentleman wishes to bring about." Id. at 1353 (Rep. Le Blond). During debate on the measure, many members of Congress had complained that in specifying through which officer he must transmit orders, the provision was a flagrantly unconstitutional effort to limit the powers of the Commander in Chief. Senator Reverdy Johnson of Maryland observed that "I shall content myself, therefore, with saying Senator Fessenden of Maine, on the other hand, argued that the power of Congress to prescribe rules means that "it has a right, moreover, to say that all orders shall pass through him as General."14/ Senator Buckalew of Pennsylvania replied: "What powers, then, are conferred upon the Constitution declares that he shall be Commander- of War shall be issued through the General of the army, and, in case of his inability, through the next in rank. The General of the army shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said head-quarters, except at his own request, without the previous approval of the Senate; and any order or instructions relating to military operations issued contrary to the requirements of this section shall be null and void; and any officer who shall issue orders or instructions contrary to the provisions of this section shall be deemed guilty of a misdemeanor in office; and any officer of the army who shall transmit, convey, or obey any orders or instructions so issued contrary to the provisions of this section, knowing that such orders were so issued, shall be liable to imprisonment for not less than two nor more than twenty years, upon conviction thereof in any court of competent jurisdiction." 13/ Cong. Globe, 39th Cong., 2d Sess. 1851 (1867). 14/ Id. at 1852. 15/ Id. at 1853. - 7 |