Constitutional Crisis

Not sure why I continue to post school stuff here, but what the hell?  This is a reaction paper for my US Foreign Policy class.  Enjoy.
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Who holds the power to decide America’s foreign policy?  Who should have the power?  The answers to these questions are, unfortunately, not the same.  In large part, the power to decide where the United States sends its troops, what actions they are allowed to take, and even where the distinction falls between foreign and domestic policy resides with the Executive branch and its agencies, and even more so with the President himself.  However, despite being designated “commander in chief” by the US Constitution, the Congress retains the right to declare war.  Much of the tension, and indeed the foundation of the debate, lies in the ambiguity of the Constitution on this very matter.  How these few passages (concerning the Presidency and the Congress in the foreign policy arena) are interpreted in today’s modern context causes a great deal of confusion and mistrust.

In Article II of the US Constitution, the Presidency is described in four sections, only one of which actually provides the President with any powers.  Section 1 describes the manner in which a President is to be elected, Section 3 is mostly concerning the State of the Union, and the fourth concerns his impeachment.  Only in Section 2 is the President described as being “commander in chief of the Army and Navy of the United States,” and is given the power to make treaties (but only with the consent of the Senate).  These are the President’s only foreign policy powers as described by the Constitution.  The Congress, however, in Article I, Section 8, is given extensive powers over the military.  Examples include declaring war, raising armies, governing the military forces, and in even more broadly, “to provide for the common defense.”

The tension between what powers a “commander in chief” has over those who “provide for the common defense” is clear.  Can, constitutionally speaking, the President command his troops to war without Congress first declaring war?  Along that line, what is the definition of war: any time Americans are called to fight?  Or is war a special state of action and readiness beyond just military force?  The Constitution remains silent on these questions and more, and the potential conflicts inherent in the document are abundant.  The President can make treaties, but if Congress can declare war, couldn’t each use their respective power toward the same nation?  Not that it’s probable by any stretch of the imagination, but it certainly is constitutionally possible.  In some respects, the US Constitution is a far-reaching document, predicting future behavior well in a variety of areas.  But in this regard, the framers could not have predicted the state of the world nor modern technology.  In 1789, it would have been unthinkable, for instance, to prohibit tapping the phones of suspected terrorists who were US citizens, because neither phones nor terrorists (of our current definition) existed!

But the constitutional conflict is not the only source of tension and confusion.  Congress itself has muddied the waters with the War Powers Act of 1973, giving the President the ability to essentially make war for up to 60 days without congressional approval.  Putting aside the fact that the Supreme Court has never challenged this, despite it being flagrantly unconstitutional, the act in itself has caused controversies.  According to James Baker and Warren Christopher, in a joint Op-Ed from their organization, the National War Powers Commission, to The New York Times in 2008, “no president has recognized its constitutionality.”  This sort of statement forces me to think that yes, the presidency is too powerful, and yes, there are not enough checks on the powers of the office.  “No president has recognized its constitutionality?”  The fact that any president could think to deem a law constitutional or unconstitutional, which is so far beyond the scope of his powers that it makes him nearly an emperor, is bad enough.  But that fact that this opinion has been held by every president since Richard Nixon is bizarre at best.

If the president can choose to ignore a law, and that choice be essentially ignored by Congress, because he considers it unconstitutional (irrespective of that fact that he’d be right), then there truly are not enough limits on his power.  But both parties are at fault here in expanding the powers of the Presidency.  I do not have any advanced training or education in constitutional law, but it seems to me that Congress cannot pass a law which changes the Constitution without amending it directly.  The War Powers Act of 1973 blatantly ignores Article I, Section 8, giving the President what are essentially Congressional powers for a limited time.  Given the fact that the land invasion of Iraq in 1991 took only three days to reach Baghdad, it seems ridiculous to think that a president would not need congressional approval until day 60, although he must inform them within 48 hours.  The fact that Congress passed the resolution to limit the President’s powers shows how far they had swung in his direction already. Compared to the Constitution, they were ceding power, but compared to how Presidents had been treating the armed forces, they were in fact restraining his power.

Among the modern presidents, none are guiltless in their extra-constitutional exercising of power, and although few have caused any uproar over their actions, former President George W. Bush stands out as one who, so to speak, took the ball and ran with it.  Again, Congress itself is partly to blame for this increase of presidential power.  By granting the President “all necessary and appropriate force against those…he determines” were involved in the terrorist attacks of September 11, 2001 in the “Authorization for Use of Military Force” of September 18, 2001, Congress essentially ceded some of its power to the President, and gave up some rights of oversight.  The President himself was endowed with the ability to wage a war outside of legislative interference, which again, is an undeniably extra-constitutional state of affairs.  But Congress was of course not entirely to blame; President Bush took some liberties all on his own.

According to Charlie Savage of The Boston Globe, in his article of April 30, 2006, Bush “claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.”  Perhaps Bush’s most famous attempt to establish a theocratic dictatorship success in expanding presidential power was the domestic spying program, in which Americans who were suspected of terrorist activity had their phones tapped without a judge’s warrant, as the law requires.  Many of Bush’s signing statements dealt with national security, an area where he felt that his role as commander in chief trumped that of congressional (or judicial) oversight.  This claim does have a (very thin, weak) legal leg to stand on: President Bush was the “commander in chief of the Army and Navy of the United States,” which, under only a slightly broader interpretation, would include all those agencies and groups tasked with protecting the United States from foreign threats.

I continue to focus on the Constitution here because it is the largest part of the foundation on which the government is built.  It is a flawed document, made by flawed people, but it has survived for more than 220 years, through protests, riots and a civil war.  And now it’s biggest threat comes from a power-hungry executive branch, a weak legislature, and a complacent court, not willing to exercise its judicial review (which, admittedly, was something of a power grab for them as well).  It’s one thing to be concerned over the United States’ behavior (e.g., torture, extraordinary rendition) and the problems that it causes overseas, or the reduced civil liberties at home, or the danger of a President committing us to a war that Congress doesn’t approve of.  These dangers are caused by all parties involved not knowing where the limits of their power lie, and not having the political will to push back when something as heinous as the Joint Resolution of September 18, 2001 was passed.  But these fears are small when compared to the crisis we may have over the Constitution itself being ignored or actively subverted.  This is where the real danger lies: if it becomes so commonplace to ignore laws, ignore precedent and ignore the separation of powers, then this might not just be a crisis for constitutional scholars and liberal bloggers, but for every citizen and resident.  A military cannot have questions about from whom or what organization they are to take their orders.  To take this argument to its extreme would be nothing more than a doomsday-crying flight of fancy, and I will not indulge myself, but these are serious issues that are not going to go away on their own.

The issues of presidential power may not be as apparent in our calmer era at the moment.  Yes, we are still engaged in two wars, but the atmosphere of thought surrounding them is not the same urgent drum-beating of late 2001.  But the prevailing thought that President Barack Obama will not use his executive power and privilege to the same extent that former President Bush did has several problems.  First, there will be other presidents, and some of them will be as hawkish as Bush.  We cannot simply trust that all future presidents will ignore the power with which they have been endowed by precedent.  Power is an attractive force.  Secondly, according to Sharon Teimer of the Associated Press, in her article of March 16, 2010, President Obama’s administration has “cited the [deliberative process] exemption [to Freedom of Information Act requests] at least 70,779 times during the 2009 budget year, up from 47,395 times during President George W. Bush's final full budget year.”  While this is a very different arena, it showcases the willingness of an administration to keep a mindset of ‘executive privilege’ about them.  The extra powers given to the Presidency, starting with the War Powers Acts of 1947 and 1973, and including the more recent concession of power from Congress to the President, must be either repealed, rewritten or reviewed by the Supreme Court.  In addition, all areas of ambiguity or confusion about what activities each branch may engage in should be made as clear as possible.  It may not be possible to eliminate all legal and constitutional ambiguities, but they can certainly be reduced.  While we may have a handle on it now, we cannot predict what the future will bring to this very delicate constitutional crisis.