Imbalance of Power
Just how imperial can the commander in chief be during a time of crisis?
Advocates of both sides often rely on the variously authored papers of The Federalist.Collectively, these writings provided the intellectual underpinnings of the Constitution, and, more to the point, they offer differing takes on executive authority. Federalist No. 4, penned by John Jay, cautions that monarchs often make war "for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans." Monarchs, of course, can be taken to mean any leader who acts autocratically. Small-"d" democrats of the early Jeffersonian Republican party attacked President John Adams and his fellow Federalists as quasi monarchists for suppressing dissent with the Alien and Sedition Acts, instituted during the undeclared naval war with France.
But Federalists like Adams and Hamilton often drew on the reasoning behind Hamilton's own papers (particularly Federalist Nos.70-75) advocating a strong and "unitary" chief executive. This unity would be diminished, Hamilton argued, by having more than one executive or by vesting power "ostensibly in one man, subject, in whole or in part, to the control and cooperation of others, in the capacity of counsellors to him." Those "others" apparently included other government branches, notably the legislature. As Hamilton observed, "It is one thing [for the executive] to be subordinate to the laws, another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government."
But, again, the critical nub is how the commander in chief remains subordinate to the laws if he must stretch or even break them to deal with the extraordinary circumstances of war or other emergencies. That was the question Lincoln repeatedly faced during the Civil War, beginning with his orders to call up the militia and expand the Army and the Navy and continuing through his emancipation measures and his suspension of habeas corpus to silence war opponents who were discouraging military enlistment. In each case, argues political scientist Sean Mattie in an article in the Review of Politics, Lincoln overcame the apparently unresolvable conflict between the need for executive prerogative and the rule of law by seeking after-the-fact legislative approval of his emergency-driven measures. And in each case, Congress provided that approval either through explicit statutes or funding bills. "Congress's legislative support strengthened Lincoln's position as executive but also its own as legislature," Mattie writes, "since statutory approval testified to the power of (if not also the need for) Congress to give formal recognition to extraordinary executive power." Bush's reluctance to seek congressional approval of his own extraordinary measures may be one reason for the growing concerns about their legality and possible abuse of his office.
Scrutiny. Then there is the matter of which circumstances call for extraordinary measures. Because World War II was as clear a threat to the republic as the Civil War had been, Roosevelt overcame challenges to his most legally questionable actions. Not only did the Supreme Court accept Japanese-American internment; in Ex Parte Quirin (1942), it upheld Roosevelt's decision to try eight German saboteurs--including an arguably naturalized U.S. citizen--in front of a military tribunal he had appointed. (This ruling is often cited, puzzlingly, as a precedent for the treatment of terrorism suspects Yaser Hamdi and Jose Padilla, even though, as constitutional scholar Louis Fisher points out in Presidential War Power, nothing in that decision "justifies holding a U.S. citizen indefinitely without access to counsel or a trial.") During the Korean War, however, the Supreme Court may have slapped down Truman's attempted steel-plant takeover in part because Congress had never officially declared war. Similarly, as the somewhat ill-defined war on terrorism stretches into the future, historian and Columbia University Provost Alan Brinkley suggests, extraordinary measures will more likely be subjected to closer constitutional scrutiny: "This may go on 20, 30, or 50 years, as the Cold War did, but we didn't let the Cold War serve as a basis for the alteration of our basic rights."
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