A Super-Power Presidency Is UnconstitutionalPosted: December 26, 2016
Incoming president Donald J. Trump inherits a presidential office more powerful than it has ever been.
The Growth of Presidential Power
Eisenhower warned that this was a problem.The dramatic increase in government services and departments during the Great Depression, coupled with the expansionary effects of a world war, left the federal government, and the president in particular, with new and broad powers. Gazing upon the redesigned government, Eisenhower warned of a military-industrial complex, saying, “Our military organization today bears little relation to that known by any of my predecessors in peacetime, or indeed by the fighting men of World War II or Korea.”
Nonetheless, many citizens did not worry as Johnson to create “The Great Society.”
With Nixon, however, Americans awakened to the real problem of providing presidents with so much control over foreign and domestic affairs. Nixon claimed the power to unilaterally authorize the bombing of Cambodia (after Congress explicitly condemned any action in that country) and he authorized the NSA to spy on American citizens without a warrant.
Congress attempted to check these actions, creating the Foreign Intelligence Surveillance Court intended to provide government oversight of domestic surveillance. Instead, it provided the government with judges they needed to rubber stamp warrants for domestic surveillance.
They also passed the War Powers Resolution intended to contain presidential discretion over military affairs. Instead, it served to provide the executive with a way to legally justify unilateral action that falls below the 60-90 day threshold. Presidents came to have legal authority to engage in actions without having to go through Congress.
For this reason, Reagan saw a genuine opportunity to maintain popularity and achieve his objectives as president by using the power of his office to dramatically increase the arms race in order to defeat the Soviet Union. His gamble paid off as the Soviet Union fell.
Both George H.W. Bush and Clinton followed this model, seeing major domestic policies frustrated while enjoying heightened popularity when they intervened internationally.
By the time George W. Bush came to power, the executive branch had an established focus on international crises, only paying lip service to any sweeping legislative changes. The War on Terror served as a shot of steroids to presidential unilateralism and continues juicing it to this day.
While the president today has a variety of powers (enumerated, implied, discretionary and — more controversially — inherent ones), none are more controversial and disconcerting than the commander-in-chief power and the ability to authorize executive orders.
The Commander-in-Chief Power
As we all know from reading the Constitution (that’s something everyone does, right?) the president is the commander-in-chief of the armed forces. This provides him with the ability to initiate hostilities against any organization or country around the world at any time by ordering the armed forces into action.
They are duty-bound to follow his orders. Even if the president orders an illegal action, such as waterboarding suspects or targeting the families of terrorists, it is likely that the military would have the same reaction as they did when George W. Bush ordered illegal actions — they obeyed and simply wrote memos outlining their legal and moral concerns.
Referring back to the Constitution — that everyone reads — one might be tempted to say that Congress, not the president, has the power to declare war. Many legal scholars argue that Congress’s power to issue letters of marque and reprisal provides them with the exclusive power to initiate both large- and small-scale hostilities. By the letter, this is correct. By precedent, however, presidents have consistently initiated hostilities without prior authorization from Congress in most major and minor engagements…..(read more)
Sarah Burns is an Assistant Professor of Political Science at the Rochester Institute of Technology. She received her Ph.D. from Claremont Graduate University in 2013. Her research examines the intersection of political liberalization and American constitutional development with an eye toward policy implications for democratization across the globe.
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