Commander in Chief
THE HISTORY OF AMERICA'S CRISES is also a saga about the expansion of presidential power. At the start of the Civil War, Abraham Lincoln centralized authority in the White House to mount a Union army and protect Washington, D.C., from the Confederates, including by suspending habeas corpus. To address the Great Depression, Franklin D. Roosevelt declared national emergency, relying on a generation-old statute that was arguably inapt because it was intended for wartime, and the country was not then at war. When Japan later attacked Pearl Harbor and provoked the United States into World War II, Roosevelt further asserted his authority in order to direct the war efforts as well.
In these and other examples, the president relied on his power as commander in chief. The Constitution expressly grants Congress the power "to declare war," as the legislature has done just five times since America's start. Although the president was named commander to ensure civilian control over the military, the founding fathers made clear that he had what historian Arthur M. Schlesinger Jr. called "a limited and technical" authority to command America's forces in battle only after Congress declared war. Lincoln's take on his role as commander flouted those intentions. "I suppose I have a right to take any measure which may best subdue the enemy," he wrote. Three-quarters of a century later, Roosevelt took a similar stance "to avert a disaster which would interfere with the winning of the war."
Schlesinger recounted how these expansive readings are central to a dramatic shift in balance from Congress to the president, with the conduct of undeclared wars egregious examples among many bold assertions of executive power. Harry Truman's prosecution of the Korean War and Lyndon Johnson's of the Vietnam War laid the groundwork, but it was Richard Nixon's invasion of Cambodia that was the most consequential. In his view, the president has inherent power to act without authority from Congress or the Constitution.
Cambodia posed no threat to American security and was a neutral country during the Vietnam War. Congress had neither declared war against Cambodia nor consented to military action there. To give legal support for that invasion, William Rehnquist, then head of the Justice Department's Office of Legal Counsel, relied on Roosevelt's understanding of the commander's clout rather than on the founders'. Rehnquist observed that, as commander, the president has "a substantive grant of authority." Asserting that the invasion did not test "anything like the outer limits of the president's power," Rehnquist endorsed a prime act of what is widely called the imperial presidency.
IN REPUBLICAN ADMINISTRATIONS SINCE NIXON'S, as Georgia State University's Neil Kinkopf explains in this issue, there has been a sustained effort to construct for the imperial presidency a foundation in law not contemplated when the Constitution was written. The effort rests on a vision of the separation of powers that has long been a matter of controversy. Called the exclusivity view, it contends that the separation of powers is a division of labor in which each branch of the federal government is solely in charge of the functions assigned it by the Constitution. Applied in foreign affairs, the exclusivity view would give the president almost unlimited powerfor example, as the Bush Administration famously contended, to torture enemy combatants as part of interrogation. The view holds that even a law passed by Congress forbidding the use of torture doesn't apply when the president exercises his exclusive power.
The Supreme Court has consistently rejected this argument, beginning almost 80 years ago and continuing through last year, as the University of Chicago's Cass Sunstein relates. The court has favored a vision of separation of powers that the president and the Congress share responsibility for and authority over almost every aspect of governance.
But while the Bush Administration backed off its initial position about the lawfulness of torture, it hasn't retreated from this analysis of the separation of powersabout which the public seems not to be outraged perhaps because, buried in legalese, the approach is hidden in plain sight. Justifying resistance to Congress, the exclusivity view also exalts the president's authority as commander in chief.
The outlook of Richard Nixon was that he was above the law. Watergate disabused him of the notion. The position of George W. Bush is that he is a law unto himself. With the confidence of those whose party controls each branch of government, as Nixon's, Reagan's, and Bush the father's did not, the president's lawyers are resolutely seeking to make that the country's view. Theirs is a far cry from the framers' intent and reflects a presidency that, rather than imperial, is more fittingly called autocratic.