War-Power Paranoia
From the Nov. 15, 2010, issue of NR.


Andrew C. McCarthy

Second, “commander-in-chief” is not the sum total of the Constitution’s presidential endowment. The president is also made sole repository of government’s “executive power.” This, as no less a states’-rights partisan than Thomas Jefferson acknowledged, was a conferral of plenary power over foreign affairs. Moreover, “commander-in-chief” is not, as Mr. Williamson suggests, an honorific that implies only “titular” power. The Supreme Court construed it in 1850 to empower the president to “employ [the armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy.” During the Civil War, it held that even in the absence of congressional authorization, the commander-in-chief was not merely authorized but obliged to repel attacks against the U.S. by any necessary force.

The president’s national-security powers are intended to be daunting. The lack of an executive capable of swiftly and decisively protecting the nation from foreign attack was a principal failing of the Articles of Confederation, and thus a catalyst for adopting a constitution that created a powerful president. Still, presidential authority is not without severe limits. I don’t disagree with Mr. Williamson on that proposition. Consequently, to carry his case along, he must caricature the arguments of national-security conservatives — while risibly asserting, “I do not wish to exaggerate Mr. McCarthy’s position.”

Mr. Williamson reports, for example, that I believe the president is not required to comply with congressional statutes. That’s silly. The president must comply with all statutes that do not infringe on his inherent Article II powers — and most don’t. But notwithstanding Mr. Williamson’s exaltation of statutes as “the law” — as in all of it — they are only a species of law. Of course, as they reflect the will of the people expressed through their representatives, statutes are an especially significant component of our law. But just like judicial rulings, treaties, and administrative regulations, they are subordinate to the Constitution. That is why I describe them as “mere” — to Mr. Williamson’s bemusement — only when comparing them with the superior provisions of the Constitution.

The subordinate status of statutes is why the Supreme Court has been invalidating them for over two centuries when they run afoul of constitutional limits. And like the judiciary, presidents decline to enforce statutes they believe to be invalid. President Bush did not invent this practice. It has been going on for as long as constitutional governance. It is what the Framers intended. They were worried, as Hamilton put it in Federalist 73, about “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.” 

So yes, I did contend, as Mr. Williamson points out, that President Bush’s Terrorist Surveillance Program — a wartime effort to intercept cross-border enemy communications — did not go beyond the executive branch’s lawful powers, even though it violated Congress’s 1978 Foreign Intelligence Surveillance Act (FISA). Unmentioned by Mr. Williamson is that my argument tracks the holding of the specialized appeals court Congress created to rule on surveillance issues: “We take for granted that the President does have that authority [to conduct warrantless surveillance for foreign intelligence purposes] and, assuming that is so, FISA could not encroach on the President’s constitutional power.” 

National-security conservatives do not contend that Congress is powerless to conduct oversight of the executive-branch agencies it has created, or that those agencies may ignore its subpoenas. In claiming otherwise, Mr. Williamson seems not to perceive the difference between executive agencies (which routinely provide voluminous documents and testimony in response to congressional demands) and the White House staff (i.e., the president’s personal advisers). It is the latter that Congress must refrain from subpoenaing — just as it should not subpoena the president himself, or a federal judge, or that judge’s clerks. That’s Separation of Powers 101.

Mr. Williamson talks about Congress’s war power, but he doesn’t appear to understand it. It is the power to “declare” war — which the Framers settled on after rejecting language that would have empowered Congress to “make” war, and does not prevent the president from committing troops or conducting hostilities as he sees fit. And he completely ignores Congress’s control of the purse, which the Framers saw as its primary check on presidential authority. In point of fact, if it chose to do so, Congress could today defund combat operations, including any concomitant authority in the executive to order assassinations of enemy combatants. That would stop such assassinations (if they had actually started). Mr. Williamson also grossly underestimates another congressional check, impeachment. In his imagining, the Congress that impeached a popular president for obstructing an investigation into his sexual improprieties would somehow stay its hand against a president who was using war as a pretext to murder American citizens.