Question re Confirmation of Petraeus

[Carrese, Paul O CIV USAF USAFA USAFA/DFPS]

I'm not a JAG officer, and don't even play one on TV, but after 12 years
teaching as a civilian at a military academy, a general reply to Prof.
Moskowitz's question would be as follows: given the concern since the
founding about a single executive and the dangers to a republic of the
commander in chief power in Article II, Congress and the President have long
agreed, under statute, that every promotion in rank in the armed forces -
both enlisted and officer - must be confirmed by the Senate; that is,
Congress has not accepted the view that military appointments and promotions
are "inferior officers".  Moreover, by statute, Congress and the President
have agreed that senior command positions (however they agree to define
them) also require appointment.  So, it's not enough that Petraeus had to be
confirmed by the Senate for his 4th star; or as a combatant commander (Cent
Com); he now needs to be confirmed as US forces commander in Afghanistan (is
it also confirmation as NATO commander?).  Of course, most of these
confirmations are routine, only the top ones have committee hearings, etc.
But even the Colonels and Generals who serve as department heads and Deans
at West Point and USMA have to be confirmed by the Senate (do they have a
PhD, are they otherwise worthy of promotion to this rank apart from the
appointment, etc.).

 

Separation of powers, as Madison (perhaps with the hand of Hamilton
involved) argues in Federalist 47 to 51, is not total separation;
Montesquieu's concept for this in the Spirit of Laws, in the French, would
be more literally translated as "distribution" of powers (and he is the main
source for Publius).  The core of executive power lies with the President,
but not all of it, and over the centuries, this is the deal about military
forces and senior commands that the Exec and Leg have worked out.

 

As to where this is in the US code, my guess is Title 10 . . . .

 

With best regards,

 

Paul Carrese

 

Dr. Paul Carrese

Professor, Political Science

U.S. Air Force Academy

 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Myron Moskovitz
Sent: Thursday, June 24, 2010 12:07 PM
To: CONLAWPROF
Subject: Question re Confirmation of Petraeus

 

I was surprised to hear on the news that General Petraeus must be confirmed
by the Senate.  I had thought that as Commander-in-Chief, the President had
complete control over what officers he assigns to run which theaters of war
- with no need for Senate confirmation.  Am I missing something from Article
2, Section 2 (below)?

 

He shall have Power, by and with the Advice and Consent of the Senate, to
make Treaties, provided two thirds of the Senators present concur
<http://www.usconstitution.net/glossary.html#CONCUR> ; and he shall
nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.

 

Myron

 

Myron Moskovitz

Professor of Law

Golden Gate University School of Law

536 Mission St., San Francisco, California 94105

Phone: (510) 384-0354; FAX: (415)563-6872

e-mail:  <mailto:mmoskovitz at ggu.edu> mmoskovitz at ggu.edu; website:
myronmoskovitz.com

 

 

 

 

 

 

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