Imbalance of Power
Just how imperial can the commander in chief be during a time of crisis?
During the Civil War, Abraham Lincoln got away with suspending habeas corpus and subjecting citizens to military law. Even more famously, he defied the law of the land by freeing enslaved Americans. During World War II, Franklin D. Roosevelt ordered the internment of Japanese-American citizens and received the Supreme Court's subsequent approval. Yet when Harry S. Truman ordered the Commerce Department to take over 87 steel plants crippled by striking workers during the Korean War, the high court ruled that he had pushed executive prerogative beyond acceptable bounds.
So just how imperial can the American president be? And more specifically, how, when, and how far can the powers that the Constitution invested in the commander in chief be extended?
Disclosures about George W. Bush's support for a National Security Agency-run domestic-spying program have pushed those questions to the fore once again. The headlines have fueled charges that his administration has, in post-9/11 measures ranging from indefinite detention of terrorism suspects (including two U.S. citizens) to torture and abuse of detainees around the world, taken presidential discretion to new, possibly illegal extremes. Joining a host of liberal voices, former Vice President Al Gore has decried a "truly breathtaking expansion of executive power" by the Bush administration.
Bush, so far, has gotten a broad pass on his amplification of the commander in chief's prerogatives, which many Americans view as justified in the name of the war on terrorism. But there are growing signs of resistance. Congressional hearings in February will examine the president's rationale for ignoring procedures instituted in the 1978 Foreign Intelligence Surveillance Act, namely the requirement that intelligence agencies secure a warrant from a special court before eavesdropping on U.S. citizens. Another congressional committee says it will oversee implementation of a new ban on the use of torture, which the president, even while signing the bill into law, suggested he would ignore when necessary. For its part, the Supreme Court is mulling over the possibility of hearings on detainee cases, although the Justice Department's solicitor general has argued that the court has no jurisdiction over them.
Whatever the solicitor general argues, cases involving possible executive overreach are almost certain to reach the high court. The American Civil Liberties Union and the Center for Constitutional Rights have filed separate suits to challenge the legality of warrantless domestic spying and to determine whether the NSA monitored lawyers, journalists, and academics involved with the Middle East. One plaintiff in the ACLU suit, journalist Christopher Hitchens, a prominent backer of Bush's war on terrorism and the war in Iraq, says that if the administration wants to engage in domestic spying, it "must ask Congress to change FISA, not ignore it."
Powering up. This in some ways goes to the nub of the historical and theoretical debate about executive authority: How does the commander in chief exercise extraordinary powers within the legal framework of the republic, including the constitutionally ordained separation of powers?
Arguments for and against strong executive authority--"energy in the executive," as Alexander Hamilton phrased it--have been put forth by both sides of the conservative-liberal divide, depending largely on who is in the White House. From the 1950s through the '70s, liberal scholars and pundits were among the aggressive supporters of a stronger executive. Historians Henry Steele Commager and Arthur Schlesinger Jr. both took on critics who attacked Truman for not securing congressional authority when he sent troops to Korea. Richard Neustadt's 1960 study, Presidential Power, exalted FDR's strong leadership and lamented Dwight Eisenhower's allegedly listless presidency. But after both John F. Kennedy and Lyndon Johnson tried, with mixed results, to bring greater elan to the White House, Neustadt grew uneasy that his ideas were seen as providing a warrant for the Vietnam War debacle and Nixon administration abuses, including illegal wiretapping of political foes and antiwar activists. Schlesinger also changed his tune in his book The Imperial Presidency. But as liberals began deploring a lack of balance among government branches, conservative (and particularly neoconservative) thinkers supportive of Ronald Reagan's "morning in America" began to trot out the oldest justifications of a strong executive. "When you own the presidency," acknowledges Harvard political scientist Harvey Mansfield, a leading conservative defender of executive prerogative, "it looks like a far more valuable possession."