Presidential Power

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Presidential Power
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Commander in Chief
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Commander in Chief

• The President shall be Commander in Chief of
  the Army and Navy of the United States, and of
  the Militia of the several States, when called
  into the actual Service of the United States
• ---Article I Section 2

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Hamilton, Federalist 69

• 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, gall which, by
  the Constitution under consideration, would
  appertain to the legislature.

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The Congress shall have Power

• To declare War, grant Letters of Marque and
  Reprisal, and make Rules concerning Captures on
  Land and Water To raise and support Armies, but
  no Appropriation of Money to that Use shall be
  for a longer Term than two Years To provide and
  maintain a Navy To make Rules for the Government
  and Regulation of the land and naval Forces To
  provide for calling forth the Militia to execute
  the Laws of the Union, suppress Insurrections and
  repel Invasions To provide for organizing,
  arming, and disciplining, the MilitiaArticle I
  Section 8

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Why put the war power in Congress hands?
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Why?

• The power of declaring waris in its nature and
  effects so critical and calamitous, that it
  requires the utmost deliberation, and the
  successive review of all of the councils of the
  nations. War, in its best estate, never fails to
  impose upon the people the most burthensome taxes
  and personal sufferings. It is always injurious,
  and sometimes subversive of the great commercial,
  manufacturing, and agricultural interests. Nay,
  it always involves the prosperity, and not
  unfrequently the existence, of a nation. It is
  sometimes fatal to public liberty itself
• --Supreme Court Justice Joseph Story (Fisher p. 4)

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Why put the power in the presidents hands?
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Hamilton, Federalist 70

• Decision, activity, secrecy, and dispatch will
  generally characterize the proceedings of one man
  in a much more eminent degree than the
  proceedings of any greater number and in
  proportion as the number is increased, these
  qualities will be diminished.

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How do we think of the presidents war powers
today?
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• President George H. W. Bush
• I dont have to get permission from some old
  goat in the United States Congress to kick Saddam
  Hussein out of Kuwait.
• President Bill Clinton
• I think I have a big responsibility to
  appropriately consult with Members of Congress in
  both partieswhenever we are in the process of
  making a decision which might lead to the use of
  force. But I think that, clearly, the
  Constitution leaves the president, for good and
  sufficient reasons, the ultimate decision making
  authority.

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What changed?

• General growth of Presidential prominence
• Precedents
• Military technology and the Cold War
• Secret agencies
• Alternative sources of legitimacy (UN, NATO)
• Congressional abdication of responsibility

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In what ways can Congress fight back?

• Why is it difficult for Congress to do so?

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War Powers Resolution

• Consulting requirement
• The President in every possible instance shall
  consult with Congress before introducing US Armed
  Forces into hostilities or into situations where
  imminent involvement in hostilities is clearly
  indicated by the circumstances, and after every
  such introduction shall consult regularly with
  the Congress

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War Powers Resolution

• Reporting requirement
• In the absence of a declaration of war, when
  troops are introduced
• 1) into hostilities or imminent hostilities
• 2) into the territory of a foreign nation armed
  for combat
• 3) In numbers which substantially enlarge the
  forces in a nation or region

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War Powers Resolution

• Reporting
• The President shall submit within 48 hours to the
  Speaker of the House and President of the Senate
  a report, in writing including
• The circumstances requiring forces
• The constitutional and legislative authority
  under which troops were introduced
• The estimated duration of the hostilities

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War Powers Resolution

• Automatic removal
• Within 60 days after the report is submitted or
  required to be submitted, the President shall
  terminate any use of United States armed forces
  unless the Congress
• Declares war
• Has extended by law the 60 day period
• Is physically unable to meet

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In what ways can Congress fight back?

• Why is it difficult for Congress to do so?

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Can the courts affect this balance of power?
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Jackson on Presidential Power

• When the President acts pursuant to an express
  or implied authorization of Congress, his
  authority is at its maximum, for it includes all
  that he possesses in his own right plus all that
  Congress can delegate
• --Justice Jackson, Concurrence,
• Youngstown Sheet and Tube Co. v. Sawyer

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Jackson on Presidential Power

• When the President takes measures incompatible
  with the expressed or implied will of Congress,
  his power is at its lowest ebb, for then he can
  rely only upon his own constitutional powers
  minus any constitutional powers of Congress over
  the matter.
• --Justice Jackson, Concurrence,
• Youngstown Sheet and Tube Co. v. Sawyer

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Jackson on Presidential Power

• When the President acts in absence of either a
  congressional grant or denial of authority, he
  can only rely upon his own independent powers,
  but there is a ZONE OF TWILIGHT in which he and
  Congress may have concurrent authority or in
  which its distribution is uncertain
• --Justice Jackson, Concurrence,
• Youngstown Sheet and Tube Co. v. Sawyer

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Is there any way to roll back the presidents
usurpation of Congress war powers?