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The Congressional Abdication


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…

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