"these provisions are contained in the RAVIN These provisions are out of place in að að öðlas 16/ 16. at 1354 (Rep. Kiblack), 177 "But if the President shall issue such an order than de is to be guilty of a misdemeanor. If quilty of misdDMOS NÓL in carrying out the provisions of the Constitution he then becomes liable to impeachment, the very thing that gentleman wishes to bring about,* 18. at 2353 (Rep. ie Sion), appropriations if I withhold my signature from the Two years later Grant became President, and the provision was repealed.19/ Constitutional historians since that time have cited the 1867 act, "aimed at humiliating the President by bypassing his constitutional authority, "20/ as a unique example of interference with the command role of the President. Johnson's "position was unquestionably sound. "21/ Under the act, "his military authority as commander-in-chief was shorn of essential attributes."22/ The legislation has gone down in history as a brief "extraordinary act" that was "[p]articularly obnoxious to any theory of constitutional regularity."23/ And the most eminent scholar of the Presidency, Edward S. Corwin, concluded that the 1867 Congressional effort to prescribe the chain of command was "remarkable and unquestionably unconstitutional."24/ 18/ Message Accompanying the Approval of the Army Appropriation Bill, March 2, 1867, reprinted in Edward McPherson, The Political History of the United States of America During the Period of Reconstruction 178 (1871). 19/ Act of July 15, 1870, ch. 294, § 15, 16 Stat. 319. The fact 20/ William M. Goldsmith, The Growth of Presidential Power: A Documented History 1056 (1974). 21/ Andrew C. McLaughlin, A Constitutional History of the United States 662 n.7 (1935). 222 William Archibald Dunning, Essays on the Civil War and 23/ McLaughlin, op. cit. supra at 663. 24/ Edward S. Corwin, The President: Office and Powers 17871957 463 n.89 (4th rev. ed. 1957). The provision was also later criticized in passing in a historical discussion by the Supreme Court in Myers v. United States, 272 U.S. 52, 165-67 (1926), which referred to "[t]he extreme provisions of all this legislation." 272 U.S. at 167. It is noted (Footnote Continued) 9 Since the 1870 repeal of the 1867 provision, the Congress has not attempted to prescribe the chain of command. Congressional leaders have recognized in various contexts that Article II of the Constitution is an independent source of Presidential authority, which is particularly at its height when he acts in the capacity of military commander.25/ in 10 On many occasions, as earlier noted, the Congress has established components of military organization. In 1958, U.S.C. § 124, it directed the President to set up the combatant organizations -- called "commands" which are designed to carry out military operations. But the Congress has never tried to tell the Commander in Chief through whom he must transmit orders. In fact, Commanders in Chief on occasion, wisely or unwisely, have elected to skip the long chain of command to the field and give directions directly to officers on the scene, as was done at times by Presidents John F. Kennedy, Lyndon B. Johnson and Jimmy Carter. The closest the Congress has come in recent years to prescribing command elements is to state that a combatant command "is under the full operational command of the commander of the command to which it is assigned," 10 U.S.C. § 124(b), and, negatively, to specify that the Chairman of the Joint Chiefs of Staff "may not exercise military command over the Joint Chiefs of Staff or any of the armed forces," 10 U.S.C. S 142(c). The latter is a very small negative restriction, if it is constitutional; as a practical matter, the President presumably could appoint the same officer if he resigned as Chairman to a position with whatever broad command authority the President directed. The former provision, stating that the unified and specified commanders shall command their commands, also is of little practical importance, because the commanders serve in those assignments at the pleasure of the Commander in Chief, who can replace them at any time and fill the positions with whomever he selects.26/ These provisions do not purport to restrict in significant manner the President's power; to the extent they did so, they would violate Article II. without any comment on its constitutionality in Blake v. The 25/ Cf. John G. Tower, Congress Versus the President: Formulation and Implementation of American Foreign Policy, 60 Foreign Affairs 229, 231 (1981) (referring to the President's powers related to foreign affairs). 26/ Positions at the three-star and four-star level of the military services, in fact, carry rank of that level only so long as the incumbent is assigned to that position. CONCLUSION The text and history of the Constitution, and nearly two hundred years of practice, leave little doubt that although the Congress has broad authority to prescribe military organization, and to establish subordinate military offices, under Article II it is up to the Commander in Chief alone to decide who shall transmit orders and what chain of operational command is appropriate.27/ Legislation prescribing that the holder of a particular office be in the chain of operational command from the President would be without respectable precedent and would exceed the Congress' legislative power. John G. Kester 27/ As was noted in 1867, "There is the authority conferred upon Mr. MAVROULES. I have one question here, and it is quite general. Should the chairman control the Joint Staff, and do you think the procedures for allowing the other members of the JCS to give advice are sufficient in the House bill? As you well know, the Senate bill will specify the military chain of command, and we do not. Can you comment on that, please? Mr. KESTER. I think very definitely, and without hesitation, that the Chairman should control the Joint Staff. They should work for the Chairman and not the corporate body. I think that is important. I note that there has been some backpedaling here and there, and I am sorry to see that. That is one of the fundamental reforms that has had wide acceptance in recent years, and I definitely believe he should do that. Mr. MAVROULES. I have one other question. I think perhaps you are correct when you stated we should not offer legislation. Of course, it is always a danger. What specific office created by Congress do you find objectionable? Mr. KESTER. I think, for example, in my view there are too many Assistant Secretaries of Defense right now. We got it down to seven. I think it is up to-it depends whether you count people at the Secretary level-I think it is up to 14. I ask you not to hold me to that. Mr. MAVROULES. Mr. Skelton said 10. Mr. Lally said seven. It has gone up. Mr. KESTER. There is always a little wiggle room in these things. It has gotten to be more than it used to be, no question. Substantially more. I don't think there needs to be that many. We set about abolishing some of these offices, and there was legislation passed that came out of this committee originally, back in 1978, which did away with the second Deputy Secretary of Defense, set up an Under Secretary of Defense for Policy, and at the same time did away with some Assistant Secretary provisions. Mr. Weinberger came back and asked for more Assistant Secretaries, and then I believe that as it finally emerged from the Congress, he got more than he asked for. I don't believe in specifying the duties of the Assistant Secretaries. I think what is important and essential changes from time to time, and the problems of a particular administration may be different from those of another. I have for many years believed we should not have an Assistant Secretary for Health Affairs; we should not have an Assistant Secretary for Reserve Affairs. I know many people disagree on that point. Those are positions that should be working through the Assistant Secretary for Manpower. And we had one Assistant Secretary for Manpower and Logistics. I noticed Mr. Weinberger has now carved that up again. The job Secretary Larry Korb used to have has now been carved up, disemboweled, and spread all over the third floor of the Pentagon. I don't think that that is a good idea. I think you need to have-if you don't have some of these things integrated at the Assistant Secretary or Under Secretary level, then all of the unresolved questions find themselves on the desk of |