Why the Enlargement of U.S. Presidential War Powers has not been a Positive Force in U.S. History

The potential for a broad expansion of the powers of the President was something that concerned the framers of the Constitution even as they were writing that document. This reality was noted by Matheson (2009), who observed that debates related to how best to curtail the power of the presidency took place even before the Revolution, and continued after it was over. That debate has, in fact, lasted into the twenty-first century due to the limited comments made regarding the power of the presidency in the Constitution. Obviously, the Framers established a clear division of power as the foundation of the government but, at the same time, “The Constitution bestows enormous power and responsibility on the President to protect the nation’s security and safeguard the people’s liberty” (Matheson, 2009, p. 1). While every American President has tried to find the proper balance between the rights of citizens and ensuring the nation’s security, it seems as if that balance has been increasingly tipping toward increased security at the expense of some perceived liberties. More specifically, it is during the time of a national security crisis—such as the current ‘War on Terrorism’—that Presidents tend to want expanded war powers.

In most cases, the President and the Executive Branch become the sole arbiters of how Presidential war powers should be exercised. Especially since the attacks of 9/11, the President (both Bush and Obama) has acted under the assumption that “the Constitution includes an implied executive power of self-preservation, a rule of necessity that overcomes statutory law and perhaps even constitutional provisions” (Matheson, 2009, p. 17). In effect, as the result of the threat of additional terrorist attacks, the war powers held and exercised by the President have expanded far beyond what any previous President enjoyed (or even desired). Currently, the President is able to act in any way that he considers necessary (as long as it does not conflict with powers granted to the legislative or judicial branches of government) to protect the security of the nation and its citizens.

Thirty years ago (1973), Congress—concerned with what was at that time viewed as the expanded powers of the Presidency to conduct war—passed the War Powers Act and overrode the attempted veto of President Nixon. While Nixon argued that the Act created unreasonable limits on the power of any President to conduct war and protect national security, Congress wanted specific procedures that would make sure that the President and Congress were both participants in any decision to commit American forces to conflict (Grimmet, 2012). There are specific sections of The War Powers Act directing the President to communicate with Congress on every occasion when he seeks to deploy American military forces [e.g., Section 3; 4(a)(1); and 5(b)]. These sections expressly require the President to ‘consult’ with Congress as well as make sure that the intended use of force is limited in duration without the express authorization of Congress to extend the hostilities (Marshal, 2008). In theory, the ability of the President to conduct military action is limited by law. However, in practice, Congress has expressed little desire to interfere with the President’s decisions in this regard, as long as the expressed motivation is national security.

Indeed, despite the concerns expressed by President Nixon that the War Powers Act was too limiting, President Bush was able to expand his Executive powers dramatically with little protest, and that practice was continued by President Obama (Mody & Curcie, 2011). Thus, not only has the power of the President expanded in order to protect American citizens from direct attacks on the homeland but it also now allows the President to engage in expanded surveillance activities as well as targeted assassinations of individuals classified as terrorist threats. In the current environment it is the President alone who becomes the ultimate decision-maker and does not need to consult with Congress as required by law.

President Obama has been relentless in the pursuit of terrorist targets anywhere in the world, including in countries that are, arguably, American allies. The relative freedom with which the President has acted in regards to military action has even allowed the killing of at least two American citizens (most notably Anwar al-Awlaki) by means of unmanned drone attacks. Ironically, both President Obama and many of his current supporters were opponents of former President Bush’s use of expanded Presidential powers. However, now that they are in power, they have acted in such a way that some claim is a “radical attempt to remake the constitutional law of war powers” (Knott, 2012, p. 83). This includes extending the reach of powers granted under the Patriot Act while failing to strengthen safeguards of civil liberties (Goldsmith 2012, 17). Interestingly, this process illustrates one of the struggles that faced the framers of the Constitution when they set out to define the powers of the President. They feared that the potential existed for anyone in power to seek to expand their powers beyond levels originally intended.

One of the most contentious uses of expanded war powers by President Obama is the extensive use of drones, which is a practice that remains a topic of significant debate—from both a legal and moral standpoint (Mody & Curcie, 2011). There are few challenges to the expanded war powers now exercised by modern presidents. One might expect that numerous legal challenges would be mounted in an attempt to reverse—or at least draw attention to—many of the President’s actions, but that has not been the case. In fact, it appears that the legal system is limited in its ability to address these issues at all (Powell, 1999). Ironically, the two most logical agencies for undertaking any legal action [the Department of Justice (DOJ) and the Office of Legal Counsel (OLC)] are also responsible for expressing legal opinions to the President, so their independent status is up for debate.

One of the few attempts in Congress to oppose the President’s expanded use of war powers was undertaken by Rand Paul, a Republican Senator from Kentucky. His primary objection dealt directly with the use of drones as tools to execute suspected terrorists in foreign countries, especially in light of reports that innocent civilians were often unintended victims of such attacks. While his efforts ultimately failed, many Democrats, as well as Republicans, agreed with his concerns (Wolf, 2013). Conversely, senior Congressional leaders such as John McCain and Lindsey Graham came out strongly supportive of expanded Presidential war powers, claiming that they are essential to protect the country and its national interests form potential terrorist attacks. Indeed, such a response is not unique, since history shows a tendency for Congress to refuse to act in most cases when it should step up and exercise the authority given it under the Constitution. Rather, Congress typically prefers to simply acquiesce and allow a President whatever authority he desires (Irons, 2005). The proof exists in the fact that more than 100 times in the last 40 years the President has ordered the military into action in some form without any notable input or opposition by Congress (Healey, 2009). Therefore, Congress has not helped limit the power of the President—as the Constitution intended—but has enabled that power to expand, including the ability to engage in military actions.

In spite of the objections of many citizens as well as other concerned groups, it seems clear that there is little organized opposition to the expanded war powers of the President. Thus, it appears that the status quo will remain for the foreseeable future unless something dramatically changes (Schroeder, 2005). Returning to the possibilities of legal action, the fact remains that federal courts have shown no desire to address the expansion of Presidential powers, even in the context of the War Powers Act. An indication of this inaction was shown when the Supreme Court considered three cases specifically connected with the Bush Administration’s actions in its War on Terror that directly ignored the power of Congress to set limits on Presidential authority. In all three cases (Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush), the Court failed to provide any insight into this issue, and in some cases refused to even comment (Barron & Lederman, 2008). Consequently, neither the Legislative nor the Judicial Branch seems inclined to act in order to place any limits on the expanding powers claimed by the President in ordering military forces into action.

In summary, the basic issue appears to be whether the American people are content with allowing the President (regardless of who he or she is or from which Party they hail) to maintain expanded war powers that were not conceived of by the framers of the Constitution. This also includes an assessment of the fact Congress and the courts have failed to fulfill the responsibilities given to them by the Constitution. Do most citizens feel that the expanded powers of the Presidency act as a protection of their security or represent a potential threat to civil liberties? The entire governmental system and separation of powers were designed as a buttress against potential tyranny and unlimited power (Wolfensberger, 2002). However, if these are not exercised as they were intended, the safeguards fail to protect the citizens and the potential exists for abuses of power, even if these are unintended.

Therefore, the ultimate decision-makers will be the American people who may eventually act to make sure that members of Congress fulfill their Constitutional obligations to curb the powers of the President by voting for individuals who set that as an objective. In any case, the action of a President who does not feel constrained by Congress or the courts does not project an image of a democratic society. Furthermore, the accidental killing of civilians in foreign countries by drone strikes, where a significant portion of the country already distrusts the United States, actually endangers American security. Perhaps the courts—even the Supreme Court—may also finally decide to offer opinions that will serve as a deterrent to expanded Presidential war powers.

References

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Goldsmith, J. (2012). Power and Constraint. New York: W.W. Norton & Company, Inc. Print. Grimmett, R.F. (2012). The War Powers Resolution: After Thirty-Eight Years. Congressional Research Service 7-5700. Web. Retrieved from, https://www.fas.org/sgp/crs/natsec/R42699.pdf.

Healy, G. (2009). Reclaiming the War Power. In D. Boaz (ed.), Cato Handbook for Policymakers, (7th ed.) (pp. 107-114). Washington, DC: Cato Institute. Web. Retrieved from, http://www.cato.org/cato-handbook-policymakers/cato-handbook-policymakers- 7th-edition-2009.

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Matheson, Jr. S. (2009). Presidential Constitutionalism in Perilous Times. Cambridge: Harvard University Press. Print.

Mody, A., & Curcie, C. (2011). The New Imperial Presidency. Harvard Political Review, 38(4), 13-15. Web. Retrieved from, http://issuu.com/harvardpoliticalreview/docs/winter2011.

Powell, H.J. (1999). The Constitution and the Attorneys General. Durham, NC: Carolina Academic Press. Print.

Schroeder, C. (2005). Loaded Dice and Other Problems: A Further Reflection on the Statutory Commander in Chief. Indiana Law Journal, 81(4), 1325-32. Web. Retrieved from, http://www.repository.law.indiana.edu/ilj/vol81/iss4/9.

Wolf, Z.B. (2013). Rand Paul Wins Applause from GOP and Liberals. ABC News, March 7, 2013. Web. Retrieved from,http://abcnews.go.com/blogs/politics/2013/03/rand-paul-wins-applause-from-gop-and-liberals/.

Wolfensberger, D.R. (2002). The Return or the Imperial Presidency? The Wilson Quarterly, 26(2), 36-41. Web. Retrieved from, http://www.jstor.org/stable/40260602.