Professor Wins Prize for National Security Law Scholarship

University of Virginia School of Law professor Saikrishna Prakash has been awarded the 2023 Mike Lewis Prize for National Security Law Scholarship for his article “Deciphering the Commander-in-Chief Clause.”

The prize is given by the Strauss Center for International Security and Law at the University of Texas at Austin and Ohio Northern’s Pettit College of Law, in consultation with the American Association of Law Schools’ Section on National Security Law.

Prakash’s article, published in the Yale Law Journal, uses 18th-century understandings of what it meant to be a commander in chief to topple the modern reading of the clause — a reading that ascribes to the president the authority to start wars, create military courts, direct and remove officers, and wield emergency wartime powers.

“Anyone interested in war powers should be interested in this key puzzle piece,” Prakash said. “People often make assumptions about the clause and what the founders wrought — almost all of these assumptions are mistaken.”

While the commander-in-chief clause does grant the president military powers, such as operational control over the military, Prakash argues that the modern interpretation of this clause as granting absolute and exclusive military powers to the president is a significant departure from its original intent.

In the 18th century, the term “commander in chief” was not as singular and powerful as it is today. It was a common military status, and every leader of a military unit was considered its commander in chief. Each naval flotilla had a commander in chief and every army unit had its own commander in chief, so “commanders in chief” were plentiful and unexceptional.

Furthermore, every commander in chief was subject to the direction of others.

“In Britain, every commander in chief was directable by Parliament and the crown,” Prakash said. “Parliament could — and did — constrain the military decisions of the crown.”

In America, the Continental Congress routinely directed the commander in chief of the Continental Army, George Washington. So prior to the Constitution, a commander in chief was “hardly unique, came with no autonomy, and Congress thoroughly regulated the armed forces and thereby limited the authority of the commander in chief,” Prakash said.

By making the president the commander in chief of the army and navy, the commander-in-chief clause makes the president the principal commander, akin to a “first general and admiral.” The clause did nothing to preclude the existence or authority of other commanders in chief. Nor did it constrain Congress’ power to govern and regulate the armed forces.

Prakash emphasized that the clause does not grant the president any emergency powers, nor does it authorize a president to wage war, raise armies or navies, or create a criminal code. These powers lie with Congress, which has broad authority over the military and warfare.

Prakash’s research suggests because “commanders in chief were not powerful or autonomous creatures, most of the president’s authority over the military arises from other clauses, such as the vesting clause, the appointments clause and the veto power.”

The appointments clause gives the president the power to appoint all military officers. The vesting clause of Article II cedes the president the power to remove all military officers. The veto power provides significant leverage over the content of federal law. Finally, Congress’ structure and culture — including its lengthy law-making process, its partisanship and its tendency toward prudence — also contribute to the president’s “outsized,” as Prakash puts it, influence on military action.

Prakash said that the modern, expansive understanding of the powers conferred by the commander-in-chief clause has been driven by various factors, including overseas crises that require quick action, a military-legal complex intent on amassing power, the absence of judicial pushback and the modern perception of the clause as a far-reaching grant of authority.

Without clear boundaries, Prakash warns, the clause could become a “wandering clause” capable of swallowing up new authorities as crises cause the president to put the clause’s powers to the test. The drift toward an increasingly powerful and autonomous executive could threaten the balance of powers envisioned by the Constitution.

“For too long, presidential administrations have argued that, whatever the clause’s hypothetical limits might be, that discussion should be saved for some other day,” Prakash said. “And yet, administration after administration, that day never quite comes.”

Prakash is the James Monroe Distinguished Professor of Law and the Albert Clark Tate, Jr., Professor of Law. He teaches Constitutional Law, Foreign Relations Law and Presidential Powers at the Law School, and is a Miller Center Senior Fellow. He is the author of two books, “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers” and “Imperial from the Beginning: The Constitution of the Original Executive.”