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War and the American Presidency
Wars contribute mightily to presidential power, so statesmen and scholars have told us for centuries. The microfoundations for such claims are not always clear, and systematic evidence that wars, all wars, necessarily exalt presidential power remains in short supply. But before clarifying the theory and empirically evaluating the claims, we would do well to survey the existing intellectual landscape, to trace the broad contours of an argument that has stood at the very center of American political debate for the better part of two centuries.
Among the Founders, such arguments established a primary justification for vesting Congress, rather than the president, with the power to wage war—lest the nation quickly devolve back into monarchical rule. The exigencies of the nation's greatest wars—one civil, two world—encouraged subsequent presidents to articulate ever more expansive readings of their Article II powers. For scholars in the mid-twentieth century, the relationship between war and presidential power had become so self-evident that it warranted the status of "law" or axiom. With the threats of terrorism and state failure shaking the nation's conscience, some advocates of a unitary theory of the executive branch now insist that national security threats are so endemic and so pervasive that divisions between peacetime and war time powers and domestic and foreign policy influence no longer make sense. With greater knowledge of foreign policy threats and the singular capacity to address them, presidents, it seems to some, demand continual deference during war.
Ideas about war and presidential power did not progress neatly, with each engaging and, where necessary, building off the insights of those that had preceded it. Disagreements regularly surfaced about a wide range of particulars—about the relevant constitutional justifications for war time powers, assessments of the precedential value of specific war time acts, definitions of judicial and congressional deference, and the like. Moreover, few writers bothered to hone the logic or build the evidentiary basis for the claim that presidents can, as a matter of course, accomplish things in war that would necessarily stymie them in peace. Consequently, contemporary arguments about war and presidential power are no more complete and no more exact than those offered centuries ago.
In the main, however, the arguments have been consistent. They can be reduced to the following claim: wars exalt presidential power. Or, more exactly, when the nation is at war, the president can (some would also say must) advance policy initiatives at home that during peace would surely fail. Over the last 250 years, this message has constituted much more than conventional wisdom—conventional wisdom, after all, typically presumes the possibility of contending (albeit inferior) schools of thought. On the matter of war and presidential power, however, all the greatest commentators on the American system of governance have converged upon a single view.
Going back to the nation's founding, political scientists have worried that through war presidents would find the means to exalt their power more generally. As Alexander Hamilton recognized in Federalist No. 8, "it is the nature of war to increase the executive at the expense of legislative authority." Echoing these sentiments, in his fourth Helvidius pamphlet Madison argued, "war is in fact the true nurse of executive aggrandizement." To justify the conclusion, Madison noted:
In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand that is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle.
Hamilton and Madison, of course, disagreed about the merits of a powerful presidency. But on their particular assessment of war's contribution to presidential power, the two adversaries stood together. On the basis of such judgment, they opted to vest Congress with the authority to declare war.
Those who opposed the Constitution at the time, of course, took such arguments even further. For them, the assignment of almost any war powers to the presidency inexorably led not merely to the expansion of executive power, but to the unraveling of a republic into tyranny. The Anti-Federalist Papers bristle with condemnation against an "elective king" whose war powers permit and even encourage the concentration of virtually all government authority. Writing under the pseudonym Cato, George Clinton recognized the president as "the generalissimo of the nation, [who] of course has the command and control of the army, navy and militia; he is the general conservator of the peace of the union." By taking the nation to war, Clinton insisted, the president would brandish powers that no government of a free people should retain. "Will not the exercise of these powers therefore tend either to the establishment of a vile and arbitrary aristocracy or monarchy?"
Primary among the Anti-Federalists' fears was the possibility that the president, as commander in chief, would use the army as an instrument of his own empowerment. Many of the controversies surrounding the existence of a standing army and the subservience of state militias to a federal militia stemmed from abiding concerns that a federal military would become the arm of the president's dominion. Though Congress might ostensibly have the authority to declare war, who had the power to stop a president intent on using the military as he saw fit? Speaking before the Virginia ratifying convention, Patrick Henry intoned:
Away with your President, we shall have a King: the army will salute him Monarch; your militia will leave you and assist in making him King, and fight against you: and what have you to oppose this force? What will then become of you and your rights? Will not absolute despotism ensue?
With the military and through war, Henry and his fellow Anti-Federalists warned, presidents would trample upon every individual right that the Constitution ostensibly protected.
Anti-Federalists and Federalists, of course, interpreted the Constitution very differently, and they held wildly divergent views about the consequences of ratification. Anti-Federalists expected that presidents would exploit their narrowly defined powers, and therefore the states ought to reject the Constitution. Federalists pointed out that the Constitution granted the all-important decisions about war to Congress, and hence it deserved to be ratified. However, the two sides fundamentally agreed about the dangers of vesting excessive war powers in a single man, and they were deeply preoccupied by the possibility that through war a president might eventually become, for all intents and purposes, a king.
Nearly every subsequent generation of scholars has revisited the Founders' concerns that wars would exalt presidential power not merely on the battlefield but at home as well. Alexis de Tocqueville argued that the "first axiom of science" dictates:
War does not always give over democratic communities to military government, but it must invariably and immeasurably increase the powers of civil government; it must almost compulsorily concentrate the direction of all men and the management of all things in the hands of the administration.
Writing a half century later, James Bryce put it as follows:
[Though] the direct domestic authority of the president is in time of peace very small ... [in war] it expands with portentous speed. Both as commander in chief of the army and navy, and as charged with the "faithful execution of the laws," the president is likely to assume all the powers which the emergency requires.
In the words of Edward Corwin, whose views we examine in greater depth later in this chapter, the nation's greatest wars offer a clear lesson:
The President's power as Commander-in-Chief has been transformed from a simple power of military command to a vast reservoir of indeterminate powers in time of emergency.
According to the constitutional law experts Eric Posner and Adrian Vermeule:
Because the executive is the only organ of government with the resources, power, and flexibility to respond to threats to national security, it is natural, inevitable, and desirable for power to flow to this branch of government. Congress rationally acquiesces; courts rationally defer.
Says the contemporary champion of the unitary theory of the executive, John Yoo:
War acts on executive power as an accelerant, causing it to burn hotter, brighter, and swifter.
And on and on.
Within political science, the relationship between war and presidential power received its most careful attention in the mid-twentieth century. And no wonder. The devastation wrought by two world wars separated by little more than two de cades demanded explanation. And so political scientists launched entirely new research agendas on security studies, international relations, and the domestic politics of war. Within this latter camp resided some extraordinarily influential scholars who argued that wars, particularly total wars, had utterly transformed the American presidency.
1.1 A Notion Expressed
For three of the most famous twentieth-century presidency scholars, Edward Corwin, Clinton Rossiter, and Arthur Schlesinger Jr., war stood at the very center of the American presidency. Individually, each of these three titans wrote prodigiously on the impact of war on our system of separated powers generally, and more particularly on the willingness of adjoining branches of government to actively promote presidential power during times of crisis.
Corwin devoted a significant portion of his masterwork The President: Office and Powers to the issue of presidential power during times of war, which he then followed up with a series of University of Michigan lectures published as Total War and the Constitution. Reflecting on the nation's three largest wars—the Civil War and the two world wars—Corwin saw the president's constitutional authority as being at its apex. Abraham Lincoln, Woodrow Wilson, and Franklin D. Roosevelt all flexed their Article II powers, and Congress and the courts steadfastly refused to stand in their way. Indeed, Corwin observed, Congress during these wars actively supplemented the president's constitutional powers with new statutory authority over a wide range of policy domains; and at least as long as troops remained in the field, the courts refused to interfere. Based on his reading of the historical record, Corwin concluded "the principal canons of constitutional interpretation are in war time set aside so far as concerns both the scope of national power and the capacity of the President to gather unto himself all constitutionally available powers in order the more effectively to focus them upon the task of the hour." A war time jurisprudence, one that looks considerably more kindly upon exercises of presidential power, supplants a peacetime jurisprudence for at least as long as American troops are fighting and dying.
Over the course of his career, Corwin appears to have been conflicted over whether presidential power promptly reverts to its prewar status when fighting at last ceases. Writing just a few months after the U.S. intervention into World War I, Corwin suggested that "in the heat of war the powers it confers are capable of expanding tremendously, but upon the restoration of normal conditions they shrink with equal rapidity." If true, then those who worry about the state of the Constitution during war need only hasten the return of peace. Yet later in life, Corwin recognized that powers exercised during war may spill over into times of peace: "constitutional practices of war time have molded the Constitution to a greater or less extent for peacetime as well." Corwin further suggested that when presidents confront altogether new crises, they benefit from the powers claimed during past ones. "In each successive crisis the constitutional results of earlier crises reappear cumulatively and in magnified form." New peaks of presidential power are reached with every successive presidency, as today's war time president draws upon all the precedents of past wars, and tomorrow's president will add to that stockpile the actions and arguments asserted by today's.
The resulting increase in war time presidential power may be steady, but it need not be precedent-setting. The precedent-setting value of some wars has been markedly greater than others. In this regard, Corwin distinguishes the Civil War from World Wars I and II. From Corwin's perspective, the Civil War, defined by Lincoln's fleeting incursions into the domestic polity and his continual homages to constitutional limits on presidential power, did not fundamentally alter the office of the presidency. But the two world wars, with their development of massive war time administrations, sweeping claims of presidential power, and emergency delegations of authority, plainly did.
In even less qualified terms, Clinton Rossiter developed many of the same arguments. Trying to account for the astronomical rise of presidential power during the nation's first 175 years of history, Rossiter observed, "In such time, 'when the blast of war blows in our ears,' the President's power to command the forces swells out of all proportion to his other powers." This influence, however, was hardly confined to the conduct of war. By Rossiter's account, it permeated policy domains that are only tangentially related to the war effort:
As proof of this point, we need only think of the sudden expansion in power that the Presidency experienced under Lincoln as he faced the rebellion, under Wilson as he led us into a world war, or under Franklin Roosevelt as he called upon Congress to extend him "broad Executive power to wage war" against depression. Each of these men left the Presidency a stronger instrument, an office with more customary and statutory powers, than it had been before the crisis.
This expansion, moreover, is not the exclusive province of great presidents in great wars. Rossiter admonishes:
Nor should we forget lesser Presidents in lesser crises, for these men, too, left their mark on the office. When Hayes dispatched troops to restore peace in the railroad strike of 1877, when McKinley sent 5,000 soldiers and marines to China during the Boxer uprising, and when Harry Truman acted on a dozen occasions to save entire states from the ravages of storm or fire or flood, the Presidency moved to a higher level of authority and prestige—principally because the people had now been taught to expect more of it.
According to Rossiter, presidents can claim new influence over the doings of government even without launching a massive war or keeping troops in the field for excessive periods of time. The equivalent of a battalion or two will often suffice, and the effects may be felt almost immediately.
In his doctoral dissertation "Constitutional Dictatorship: Crisis Government in the Modern Democracies," Rossiter was especially emphatic about the necessity of resurrecting an all-powerful executive for the duration of wars. Unless power is concentrated in the presidency, government policy reaches beyond its typical bounds, and the executive branch is liberated from constitutional proscriptions—the three criteria of Rossiter's "constitutional dictator"—a state's ability to survive is unnecessarily imperiled. While recognizing that an expansion of presidential power during war does not, of itself, ensure the state's survival, Rossiter argued that, other things being equal, "a great emergency in the life of a constitutional democracy will be more easily mastered by the government if dictatorial forms are to some degree substituted for democratic, and if the executive branch is empowered to take strong action without an excess of deliberation and compromise." Should they renounce constitutional dictatorship, governments conspire in their own demise.
Excerpted from THE WARTIME PRESIDENT by William G. Howell, Saul P. Jackman, Jon C. Rogowski. Copyright © 2013 The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS.
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List of Tables and Figures
PART I: BACKGROUND
1 War and the American Presidency
1.1 A Notion Expressed
1.2 A Notion Evaluated
1.3 Sifting through the Claims
1.4 Quantitative Studies on War and Presidential Power
1.5 Moving Forward
PART II: THEORIZING ABOUT INTERBRANCH BARGAINING DURING WAR
2 The Policy Priority Model
2.1 Theoretical Building Blocks: Policies, Outcomes,
and Interbranch Bargaining
2.2 The Model
2.3 Nontechnical Summary
3 The Model’s Predictions about Modern U.S. Wars
3.1 Defining War
3.2 Which Equilibrium Are We Playing?
3.3 Mea sur ing the Prioritization of National Outcomes
3.4 Characterizing the Wars
3.5 Key Expectations
3.6 Competing Explanations
3.7 A closing Note on Theory Testing
PART III: EMPIRICAL INVESTIGATIONS
4 Spending in War and in Peace
4.2 Primary Analyses
4.3 Strategic Proposal Making
4.4 Distinguishing between Two Theoretically Informed Causal Mechanisms
4.5 A Comment on Endogenous War Making
5 Voting in War and in Peace
5.1 Data and Methods
5.2 Post- 9/11 Wars and the 107th Congress
5.3 Earlier Wars
5.4 World War I and the Relevance of Stateside Attacks
5.5 War and Other Crises
6 Case Studies I: Illustrations
6.1 The First Total War
6.2 Pearl Harbor and National Labor Policy
6.3 Roo se velt and All the Resplendence of a War time Presidency
6.4 The Immigration Provisions of the USA PATRIOT Act
6.5 final remarks
7 Case Studies II: Challenges
7.1 The Federal Government Enters the Public Education Business
7.2 The Great Society and the 1965 Decision to Send Ground Troops into Vietnam
7.3 Bush’s War time Effort to Reform Social Security
7.4 Final Remarks
PART IV: CONCLUSION
8 Summaries, Speculations, and Extensions
8.1 Holes and Extensions
8.2 The Future of War
8.3 A Future for the Policy Priority Model
PART V: APPENDIXES
A Technical Details, Chapter 2
B Alternative Bridging Criteria, Chapter 5
C Summary Tables, Chapter 5
D Robustness Checks, Chapter 5
D.1 Alternative Est imat ion Procedures 308
D.2 Alternative Interest Group Bridges
D.3 Changes in the Agenda
D.4 Subsets of Roll Call Votes
D.5 Defining the Beginning of War
D.6 Rising Conservatism and War
D.7 Placebo Tests