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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 0.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.gu, 10 0.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 0.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.,, Korematsu v. United States, 323 0.s. 214 (1944); Prize Cases, 2 Black 635 (1863); cf., e.q., 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. It was widely criticized as unconstitutional at the time, and as was
Thus, for example, the members of the Joint Chiefs of Staff,
the case with the infamous Sedition Act of 1798,1/ 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 Actil/ specified that
"all orders and instructions relating to military
next in rank." 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 0.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
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 Rev dy Johnson of Maryland observed that
"I shall content myself, therefore, with saying
violation of the Constitution."13/ 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).
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 : 7:="167 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
16Id. 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).
appropriations if I withhold my signature from the
Two years later Grant became President, and the provision was repealed. 197 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 "(particularly 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
19/ Act of July 15, 1870, ch. 294, 15, 16 Stat. 319. The fact
that Johnson and Grant remained on good terms for at least a
20/ William M. Goldsmith, The Growth of Presidential Power:
Documented History 1056 (1974).
21/ Andrew C. McLaughlin, A Constitutional History of the United
States 662 n.7 (1935).
22 William Archibald Dunning, Essays on the Civil War and
Reconstruction and Related Topics 261 (1910) (footnote
omitted). 23 McLaughlin, op. cit. supra at 663. 24/ Edward S. Corwin, The President: office and powers 1787
1957 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 0.s. at 167. It is noted (Footnote Continued)