Lulu Mansour (Harvard University, Harvard Law School; UC Berkeley School of Law; Harvard University – Harvard Law School) has posted Congressional Authority To Regulate Military Operations on SSRN. Here is the abstract:
This Note makes the case for congressional authority to regulate military operations through the formal adoption of statutory rules of engagement. Authority over the conduct of hostilities is traditionally thought to be within the exclusive province of the Commander in Chief. The constitutional text and historical evidence from the early republic, however, confirm that Congress may regulate in this space. Yet the practical exercise of such congressional power must be weighed against the President’s independent duty to interpret and implement the law and Constitution.
While often discussed in relation to judicial supremacy and broader questions of constitutional interpretation, this Note borrows the doctrine of presidential departmentalism and sketches how it constrains, but does not entirely hamstring, Congress’s ability to legislate in this domain. Past Presidents have interpreted their Commander in Chief authority expansively, treating it as extending beyond battlefield command and implementation discretion (arguably the President’s core, preclusive authority) to include broader governance of military operations. Historically, such interpretations have prevailed notwithstanding Congress’s concurrent authority.
This persistent pattern may suggest the Framers envisioned a constitutional structure that permits executive primacy in operational control within a system of shared war powers. Still, Congress retains meaningful constitutional mechanisms (including by the enactment of standing rules of engagement) through which it can influence the conduct of military operations.