A few years ago, I wrote a book called The New Imperial Presidency, in which I built on ongoing events and new scholarship to trace the growth of presidential power after Watergate. I argued that this increased authority was both taken (by presidents) and given (by Congress). In short, “The fact is that we have had an invisible Congress as much as an imperial President.”
Today’s New York Times provides the lead quote for the next edition of the book, courtesy of Rep. Peter King (R-NY), member of Congress for more than 20 years and former chair of the House Homeland Security Committee. To wit: “I strongly believe that the commander in chief has the absolute right to take military action.”
Assuming King meant just that, his strong beliefs are contrary to those who designed the American constitutional framework. For example, James Wilson — one of the key architects of Article II and “unity” (not unitary-ness…) in the executive — told the Pennsylvania ratifying convention on December 11, 1787, that “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives…”
James Madison, writing as “Helvidius” in a series of letters attacking the Washington administration, piled on. “The received and the fundamental doctrine of the constitution,” he argued, is “that the power to declare war including the power of judging of the causes of war is fully and exclusively vested in the legislature: that the executive has no right, in any case to decide the question, whether there is or is not cause for declaring war.” (Emphasis in the original.) Indeed, “in no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”
A few years later, in a 1798 letter to Thomas Jefferson, Madison reiterated that “The constitution supposes, what the History of all Govts. demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.” A few years later, in turn, Jefferson told that Legisl in a December 1805 special message that “considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided.”
Now, the story is of course not so simple – we can argue about the definition of “war,” to start with, and President Jefferson himself was not always so considerate of legislative sensibilities and authorities. On the other hand, the Helvidius letters were prompted by Washington’s proclamation of American neutrality in the interminable Anglo-French conflicts – so about a decision not to go to war! even this, Madison argued, needed congressional sanction. (Which, in the end, was given.)
The point is that those framing this process as a presidential gift to be given have it backwards — even leaving aside the niceties of the law (the topic of my next post, stay tuned). A Congress with institutional pride (with ambition aiming to counteract ambition, in Madison’s famous turn of phrase in Federalist #51) would have acted on its own. Indeed, legislators who signed on to letters to Obama demanding that he reconvene Congress and ask for authorization were given credit for being assertive. Yet why were those letters written to Obama in the first place, and not to the House and Senate leadership? If Obama’s decision yesterday made Congress slightly more visible, little credit for that appears to go to Congress itself.