One of my scholarly interests is analyzing the continuing battles between Congress and the president over the limits of the president’s commander-in-chief authority. The tension between the branches has significantly increased in recent decades, regardless of which party controls Congress or the White House.
Partisan divides heighten the debate, but institutional underpinnings always drive it. President Obama and Congress recently wrestled over the prisoner exchange at Guantanamo Bay, for example, which had less to do with the prisoners or the future of the prison than with the limits of the president’s commander in chief authority.
When members of both Houses loudly complained that President Obama had violated the 30-day notice that the law required before any prisoner release or exchange from Guantanamo Bay, the president reacted by reminding them that he had vigorously objected to the requirement. In fact, when he signed the law, he said, and I quote here, that Congress could not “hinder the Executive’s ability to carry out its military, national security, and foreign relations activities”.
Year after year, Congress has tried to limit the president’s role as commander in chief and routinely those efforts have fallen on deaf ears. The issue is institutional, not partisan. During the Bush administration, a Republican-controlled Congress banned torture during military interrogations, but President George W. Bush ignored the ban, arguing that Congress had no constitutional authority to become involved with how the military conducts its operations. Both Republican and Democratic presidents in recent years have aggressively asserted that Congress cannot pass laws that limit their authority as commander in chief or in national security decisions.
This tug of war between the branches over the limits of the president’s commander in chief authority will unquestionably continue and escalate, regardless of which party controls Congress or the White House. Partisan divides often heighten the debate, but the institutional underpinnings drive the debate.