The threat of presidential war power

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Matthew Cepican/ Flickr

Mark Parent
Opinions Editor

It is the most critical act in all governance. It is also in the hands of, perhaps, the most powerful person in the world. It is a position created by some of the finest minds in all of American history.

So why is it that the president’s power to go to war has been utterly and unquestionably monopolized by the executive branch, despite the clear checks and balances afforded to Congress, the Judiciary and the states?

Put simply, the realities of both politics and war have created an atmosphere of indecision that has wrought significant consequences to the American system of government. Hence, the rightful constraints devised by the Framers of the Constitution have been all but forgotten.

In essence, this has led to an imperial presidency, operating under the guise of constitutional parameters, whose actions are bound to be rubber-stamped by both a legislature determined to avoid politically damaging votes and judges unwilling to risk the potential wrath of an executive driven to ignore a court order in the area in which he is considered to be the sole organ of policymaking.

Nevertheless, this breakdown of basic constitutional practice has led to a situation unimaginable to the authors of Article II of the Constitution.

The presidency, in many ways, was envisioned as a compromise between the feckless executives of the Articles of Confederation and the often-despotic powers granted to the King of England. Yet, due to various historical and political developments, this version of executive power has become a relic of the past, destined to influence only those with the audacity to abide by the original intentions of the Framers.

Over time, various presidents have amassed power through sometimes brazen — and sometimes clandestine — military actions that neither sought authorization from Congress, nor responded to the repellence of an imminent threat.

As the Constitution clearly implies, once a wartime action has taken place, it is the obligation of the two opposing branches to adequately check the executive—if need be—in order to prevent the establishment of a damaging precedent that undermines the basic structure of our constitutional system of government.

It is for this reason that the Framers incorporated the Declare War Clause, Commander of the Militia Clause, Commander in Chief Clause, Army Clause and Navy Clause into our founding document. For these brilliant men, the decision to go to war must be controlled by Congress, the people’s branch.

In their minds, war is a tool of the despot; it was often vainly employed for personal gain, petty retribution and political purposes. After all, the examples of Caesar, Cromwell and the Duke of Marlborough were dire warnings of the potential harms of a powerful executive.

Yet, the Framers also understood that a legislature was ill-equipped to respond to imminent threats. As John Locke foretold in his “Second Treatise on Civil Government,” a system of government established on the notion of checks and balances must possess an executive that is equipped to unilaterally respond to imminent crises.

Of course, such a response must be both rapid and consequential; hence, the need for a single executive, rather than a plural executive became pivotal.

Ultimately, the Framers were determined to avoid the flaws of Holland’s republican system, which had chosen to divide executive power among multiple military officials; unsurprisingly, these leaders garnered a reputation for lethargy in times of crisis and placed their small country at risk.

But, in the U.S., our single executive would be free to defend the homeland from an impending invasion.

For instance, in 1861, when Confederate troops fired on Fort Sumter, President Abraham Lincoln unilaterally called up 75,000 militiamen from the states and began organizing a naval blockade of critical southern ports.

The reason for Lincoln’s unilateralism lay in the fact that Congress was on recess, and therefore unable to authorize these necessary actions. Yet, upon reconvening in Washington, all of Lincoln’s actions were approved by Congress; and, two years later, in the “Prize Cases,” the Supreme Court deemed Lincoln’s unilateral response as constitutional.

Sadly, such cases of presidential adherence to constitutional dogma are increasingly rare. Whether it is James Monroe in Spanish Florida, or Franklin Pierce in Nicaragua, or James K. Polk in Mexico, or William McKinley in China, or Woodrow Wilson in Russia, or Harry Truman in Korea, or Richard Nixon in Cambodia, or Bill Clinton in Haiti and Yugoslavia or Barack Obama in Libya and Syria, presidential war power has exceeded its constitutional boundaries and cast doubt upon the legitimacy of our system of checks and balances.

To put it bluntly, both Congress and the president have been complicit in the dismantling of the Framers’ conception of presidential war powers.

Curiously, in most cases, one would expect the two branches to grab power in a manner reminiscent of Easter Island. On Easter Island, of course, rival chiefs destroyed their environment in an ill-fated quest to build taller and grander statues than their adversaries on the other side of the island.

Likewise, in many areas of constitutional law, Congress and the president are engaged in a competition to gain as much power as possible, despite the many adverse effects that are bound to result from such a contest.

But, interestingly enough, when it comes to war-making, Congress acts like the French Senate under Emperor Napoleon I — a mere bystander, it is worthy of being only a footnote in history.

With that being said, the most straight-forward and likely method of recapturing the complex system of checks and balances designed to limit presidential war powers is for the judiciary to engage in the process.

For too long, courts have treated war-making as a purely political issue, immune from difficult constitutional questions; however, as time has progressed, the basic constitutional constraints placed upon executive power have evaporated and caused political questions to be transformed into constitutional crises.

Instead of having faith in the system, our institutions have adopted a mode of thinking reminiscent of Andrew Jackson’s claim of presidential autonomy through democratic majorities.

Put simply, in order to reassert constitutionalism and restore faith in the American system of checks and balances, the judiciary must guard the sacred constitutional principles affecting war and peace in an effort to reinvigorate the intense debate between the legislative and executive branches that is so necessary for the American system to function properly.

Mark Parent, a senior political science major pursuing disciplinary honors, is the author of, “Threat to the Republic: The Expansion of Presidential War Power.”

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