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."
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."
To Robert George, a professor of jurisprudence at Princeton University, questions circling the limits of executive prerogative are less large-"c" constitutional issues than small-"c" ones. By that, he means that these questions tend to be addressed less through close parsing of what the Constitution says about presidential prerogative (which is quite broad and vague) than through the judgments of the court of public opinion. "In the current context," George says, "the public seems to think the president is doing what is necessary."
Polls back that up, but George cautions that such verdicts must stand up against the test of history: "If it turns out this power was used in an abusive way--say, for political reasons--we will think back on it as we do on the way we abused executive power in World War II when we used the War Relocation Authority [to intern Japanese-Americans]. It will be seen as a great stain on our constitutional record. It all depends on whether the power is used responsibly. And," adds George, "the temptation to use it wrongly is very high."
This story appears in the January 30, 2006 print edition of U.S. News & World Report.