In my last post I argued that the anti-Federalists got a lot more right than we usually give them credit for: they correctly predicted that the courts would become much more powerful than predicted by Hamilton and the Federalists, making determinations that affect the course of politics and society on a regular basis. The Supreme Court has become the locus of arguments about constitutional meaning, with the views of other political actors shunted to the side in favor of judicial determinations.
Here I’d like to continue the discussion with some thoughts about the constitutional design of the American presidency. At first glance, the president’s powers in the constitutional text might seem relatively modest, perhaps – the ability to make treaties with other nations, the power to send and receive ambassadors, executing the laws passed by Congress, appointing the heads of government agencies and judicial appointments, vetoing bills passed by Congress, and being Commander-in-Chief of the Army and Navy. At least three of these are subject to a clear check by another branch of government, as appointments and treaties require Senate approval (2/3, in the case of a treaty) and the veto can be overridden by a 2/3 majority of both houses of Congress. From a purely formal perspective, then, it doesn’t seem like the presidency is overbearing at all.
However, the context matters – prior to the writing of the Constitution, under the Articles of Confederation, there was no president or any separate executive branch at all. The entirety of the national government consisted of Congress. Creating an independent, powerful president was very much on the mind of those who drafted the Constitution, especially James Madison and Alexander Hamilton.
Hamilton famously wrote in Federalist #70 that “Energy in the Executive is a leading character in the definition of good government… A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”
The power of being Commander-in-Chief and leading the nation’s military force received some more specific treatment from Hamilton in Federalist #69, where he compared the powers of the president to those of the British monarch: “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”
Hamilton argues here that, unlike the King of England who can decide when the nation will go to war, the president of the United States will not have the ability to determine when we go to war, since only Congress can do that – after all, Article I section viii states explicitly that only Congress has the power “to declare war”. The president merely will command the military forces once the representatives have declared a war exists, Hamilton says.
The Anti-Federalist writer Cato, by contrast, saw that the potential for the misuse of the Commander-in-Chief power was built into the constitutional structure, saying of the proposed President: “he is the generalissimo of the nation, and of course, has the command & control [sic] of the army, navy and militia… Will not the exercise of these powers therefore tend either to the establishment of a vile and arbitrary aristocracy, or monarchy?”
In practice, Cato’s argument seems to have been borne out by events – presidents have found it remarkably easy to use military force without congressional authorization. Take, for instance, the example of so-called “small wars,” including Jefferson’s expedition against the Barbary pirates and the numerous wars against Native tribes (of which there were at least 10 major conflicts in the years before the Civil War). In none of these did Congress play a role in specifically authorizing the use of military force, and many were quite consequential for the territorial expansion of the United States and involved many years, thousands of troops, and millions in expenditures. While it is true that Congress funded these conflicts, presidents were able to put Congress in a reactive position by acting first and effectively daring legislators to try and stop a conflict set in motion. (I’ve written about this previously.)
Even a war authorized by a congressional declaration, like the Mexican-American War, was quite clearly set in motion by President Polk’s order to have American forces cross into the disputed region on the Texas border between the U.S. and Mexico, after which Mexican forces fired on what they perceived to be an invasion. When General Zachary Taylor reported the incident, Polk turned around and told Congress that a state of war now existed between the two nations, and he received his desired congressional war declaration in response.
This pattern has, if anything, become substantially more pronounced in the modern era, especially since the end of World War II. Both in Korea and Vietnam, presidents started major wars with little or no congressional permission in advance of the conflicts. Other wars have seen congressional authorizations of force, though no declarations of war have happened since World War II. There have been dozens of other smaller uses of force that never received congressional authorization of any kind.
The question then becomes: what can we do to remedy this situation? How can we restore Congress’s proper role and limit the ability of presidents to so easily start international conflicts? That’s going to be the subject of my next post.