January 11, 2006
The controversy over President Bush’s ordering the NSA to monitor phone conversations without a warrant is the latest in a long line of fights over executive authority during wartime. Congress has been increasingly frustrated at being cut out of the decision loop in matters ranging from the conduct of the war in Iraq to the treatment of prisoners in Guantánamo Bay. South Carolina Republican Lindsey Graham asked a very pointed question during the Alito confirmation hearings: “Do you believe that any president, because we’re at war, could say the statute on torture gets in the way of my ability to defend the United States, therefore, I don’t have to comply with it?”
Liberal blogger Kevin Drum poses a more fundamental question: What is a wartime president? He acknowledges that, “It’s safe to say that whatever Bush’s NSA program actually involves, no one would have batted an eyelash if FDR had approved a similar program during World War II.” Still, the United States has, to varying extents, been in a state of war for most of the last 60 years. Where do we draw the line?
Nearly half a century ago, legal scholar Edward S. Corwin wrote that, “The Constitution is an invitation to struggle for the privilege of directing American foreign policy.” His argument was that, while the Framers clearly intended for the legislature to be the predominant branch in domestic policy, both branches had substantial power in the realm of international affairs without bright lines to delineate them. Most notably, the Congress had the power to declare war but the president, as Commander-in-Chief, had the power to send troops into harm’s way.
Fictional “Dallas” patriarch Jock Ewing once told his equally fictional son, Bobby, that “Nobody gives you power. Real power is something you take.” All of our great presidents — and some of the less-than-great ones — took great liberty with the Constitution. The have seized the initiative and forced Congress to react.
Teddy Roosevelt quipped, “I took the canal zone and let Congress debate, and while the debate goes on the canal does also.” More famously, he solved a dispute with Congress over sending the fleet around the world thusly:
“The head of the Senate Committee on Naval Affairs announced that the fleet should not and could not go because Congress would refuse to appropriate the money—he being from an Eastern seaboard State. However, I announced in response that I had enough money to take the fleet around to the Pacific anyhow, that the fleet would certainly go, and that if Congress did not choose to appropriate enough money to get the fleet back, why, it would stay in the Pacific. There was no further difficulty about the money.”
He understood that, while Congress theoretically has the power to thwart the president, it is politically unfeasible if the action is popular.
As Drum noted, Franklin Roosevelt claimed and was granted extraordinary powers during the war. Indeed, he asserted the right to ignore laws passed by Congress that he deemed harmful to the war effort. On September 7, 1942 he demanded that Congress repeal certain provisions of the Emergency Price Control Act and wrote,
“In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act. . . . The President has the powers, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war. I have given the most thoughtful consideration to meeting this issue without further reference to the Congress. I have determined, however, on this vital matter to consult with the Congress. . . . The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat. When the war is won, the powers under which I act automatically revert to the people–to whom they belong.”
Congress acceded to this demand, so we never heard from the judiciary whether the president could so brazenly flout the law. In February of that same year, FDR issued, “by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy,” Executive Order 9066, ordering Japanese-Americans to be placed in detention centers. The Supreme Court upheld this order in Korematsu v. U.S. (1944).
World War II was followed, with almost no hiatus, by the Cold War and the National Security Act of 1947. That legislation further centralized national security policy in the White House and further isolated Congress. This was quickly followed by an undeclared war in Korea, a slow descent into war in Vietnam, and numerous military and intelligence operations of dubious legality, especially in Latin America.
Arthur Schlesinger dubbed this largely unchecked growth of executive power the Imperial Presidency. Congress reasserted itself with the 1973 War Powers Act and the 1975 Church Committee hearings but the momentum was too great. Presidents have largely treated the former with impunity and the latter, while halting some of the abuses of the past, has received substantial blame for the intelligence failures leading up to the 9/11 attacks.
If the Constitution is “an invitation to struggle,” it is one that presidents have been winning since the 1940s. The modern president has reversed the Constitutional presumption that Congress is the preeminent branch and the president secondary. Since Roosevelt, it has been axiomatic that “the president proposes, Congress disposes.” That is especially true in foreign policy and even more so in national security matters.
It’s true that Bush doesn’t have the degree of autonomy in this war as FDR and Lincoln did in theirs. But that’s mostly a function of public perception of the nature of a war–what he can get away with, to put it more crassly–than any limitation of constitutional power. Much of what FDR and others have done is extraconstitutional. But bold wartime leaders have been flouting the Constitution since at least Lincoln, with the full support of the public.
 The President: Office and Powers, 1787-1957, New York, New York University Press, 1957. p. 171.