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).

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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. It was widely criticized as unconstitutional at the time, and as was

5/

6/

Thus, for example, the members of the Joint Chiefs of Staff,
although appointed for fixed terms, nevertheless serve "at
[or, in the case of the Army and Air Force, 'during'] the
pleasure of the President." See 10 U.S.C. SS 142, 3034,
5081, 5201, 8034.

A notable exception is the War Powers Resolution of 1973, 87 Stat. 555, the effect and constitutionality of which are open to serious question.

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
operations issued by the President or Secretary of
War shall be issued through the General of the
Army, and, in case of his inability, through the
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/

7/ 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
(1960).

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)

- 6

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
that it seems to me perfectly obvious that that
section is in direct conflict with the Constitution
of the United States. . . . [E]very intelligent
Senator who has a right to vote upon this floor
ought to know that this is a gross attempt at a
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
President of the United States when the

Constitution declares that he shall be Commander-
in-Chief of the Army and Navy? Why, sir, there is
one power under this head which no man can deny or
doubt; and that is the power of giving orders to
his inferiors in military rank."15/

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
on the subject, been conceded to him that he was
entitled as Commander-in-Chief, to assign to
officers whatever duty in his judgment he thought
they ought to be called upon and were best quali-
fied to perform.

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-
priations for the support of the Army for the year
ending June 30, 1868, and for other purposes,'
contains provisions to which I must call attention.

"These provisions are contained in the second
section, which in certain cases virtually deprives
the President of his constitutional functions as
Commander-in-Chief of the Army, and in the sixth
section, which denies to ten States of the Union
their constitutional right to protect themselves in
any emergency, by means of their own militia.
These provisions are out of place in an appropria-
tion act. I am compelled to defeat these necessary

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).

appropriations if I withhold my signature from the
act. Pressed by these considerations I feel con-
strained to return the bill with my signature, but
to accompany it with my protest against the sec-
tions which I have indicated."18/

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/

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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, S 15, 16 Stat. 319. The fact
that Johnson and Grant remained on good terms for at least a
year after the 1867 act diminished its practical effect.
See McKitrick, op. cit. supra n.7, at 482 n.83.

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

24/

McLaughlin, op. cit. supra at 663.

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)