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The Congressional Abdication

[ 9 ] April 5, 2011 |

I generally agree with Mark Tushnet that Robert Jackson is overrated. But I also agree that he did have a talent for good lines, and this bit from his famous-if-overrated Steel Seizures concurrence was prescient indeed:

But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that “The tools belong to the man who can use them.” We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

I have a new article up at the Prospect on this general theme. While I agree with Paul and Bruce Ackerman that it’s hard to square the current presidential dominance over military and security policy with the constitutional framework established by the framework, on some level the argument becomes like debating the fine points of constitutional grand theory: presidential dominance is the de facto constitutional order. I draw the line at suggestions that the president can just ignore congressional statutes, but if accepted practice means anything (and I’m not going to selectively pretend to be an originalist) the president’s ability to initiate military force with congressional delegation or acquiescence is part of our constitutional order, and certainly Obama isn’t breaking any new ground. The only thing that can change things is for Congress to assert the formal powers it still possesses, but there’s little reason to believe it will do so.

Whether the current balance of power is constitutional a different question from whether it’s desirable, and on the latter question I remain highly dubious:

But it’s also true that recent American foreign-policy blunders would suggest it’s not entirely desirable for the president to have so much power. As Stephen Holmes argued at length in his brilliant 2006 book, The Matador’s Cape, an executive branch unconstrained in its military power is dangerous. “It turns out,” Holmes says, “that an executive branch that never has to give reasons for its actions soon stops having plausible reasons for its actions.” The Vietnam and second Iraq wars, in particular, suggest that there was real wisdom in the power-sharing over military policy Madison envisioned. Both wars provide classic examples of the pathologies one would expect from unilateral executive power: wars fought under largely false pretenses, with increasingly blurry aims and essentially no cost-benefit analysis. And the theories of unilateral executive power advanced by John Yoo and others in the executive branch under George W. Bush also led to arbitrary torture and other appalling civil-liberties abuses.

At any rate, my combination of outrage and fatalism is expressed in full at TAP. I’ll have more on Posner and Vermeule later today…

  • Joe

    Jackson isn’t a god or anything but he provided an important voice to the mix and quite a few opinions don’t really “hang together from beginning to end,” so what the heck does that prove? The overall comment seemed something of a cheap shot.

    • Jon

      Agreed. Justice Jackson, like everyone else, was not perfect, but he was a damn good Justice.

      And I don’t see why anyone would say his Steel Seizure concurrence was “overrated” — it was the best, by far, of the opinions in that case. Compare it to Justice Black’s lead opinion, which is basically a meaningless nothing. No one, especially no other Judge, has come up with a better articulation of the separation of powers than that concurrence — both in practice and as set out in the Constitution. If someone has, I’d like to see it.

  • Ralph Hitchens

    You can turn this around — I’ve long wondered about the Presidential abdication of certain powers, such as his clear-cut authority as commander-in-chief. Why is Congress deciding if the F-35 needs an engine from one manufacturer or a choice of two? Why can’t the President announce that in his judgment as C-in-C the US Navy needs only, say, 8 aircraft carriers and submit a budget request to that effect? And if Congress appropriates $$ for a dozen, does the President have the authority, as commander-in-chief, to not spend what’s appropriated for defense programs in which he doesn’t believe?

  • jon

    What a shocking, and corrupting importation of foreign legal precedent! I have pored over the Constitution, and cannot discern where the Founding Fathers deferred to Napoleon.

  • Michael Drew

    I do tend to follow leaders, so i am oonclined to follow you and Bruce Ackerman and Jack Balkin and others on the question. But when I look at the relelvant language, I don;t see where the framework is so clear. Mightn’t war powers in the Constitution be additive, not exclusive. the Congress is given the power to Declare War. Does this imply that the President does not have the power to decide to deploy the military on his own initiative? He’s made the Commander in Chief! That’s a hell of a title!

    I’m being only half serious here, but I am being half-serious. The Constitution gives Congress the power to declare war, and makes the President Commander in Chief of the military used to fight those wars. It seem to me that what is being done there is creating an obligation for the President to actually execute those wars the Congress determines he must, whether he is inclined to or not. But I don’t see any limitation of the President’s ability to also use the military on his own initiative. But I am willing to be told where it is either implied or explicitly spelled out.

    • Michael Drew

      …what is perhaps being done, I certainly meant that to say.

    • Scott Lemieux

      I actually agree with this. The unilateral deployment of forces is contrary to the founder’s expectations, but it’s far from clear that it violates the text of the Constitution per se. The maintenance of standing armies makes the commander-in-chief powers more consequential, and while Madison didn’t expect that the Constitution doesn’t forbid it.

    • Joe

      I think it’s clear that on “his own initiative,” he can use the military for certain limited purposes, such as dealing with emergencies, but some open-ended ability would violate the overall structure set forth where he is an “executive” that “executes” policies.

      Congress can’t set up someone superior to him or put a member of the military to command the military, which is a big deal. And, like Scott said, I’m not just taking this from the bare text. Bare text only takes you so far. But, bare text don’t really compel us to accept commanders can make national policy either.

    • Michael Drew

      I actually picked up a volume, Presidential War Powers by Louis Fisher, at the public library today, and the first chapter argues pretty persuasively to me) that from examining the Philadelphia debates, state conventions, and The Federalist, despite the absence of explicit delimitation on the powers attending the impressive title, the Commander in Chief title was clearly understood not to comprehend the initiation of war apart from “repelling sudden attacks.” People apparently understood themselves to be instituting a radical break from the Anglo-European precedent of war initiation as an executive power by placing it exclusively in the legislature. BUt for understanding that to be the case, I still think they made a clear statement of that principle remarkably invisible in the text, when nothing was stopping them from putting it front and center.