John Whitehead's Commentary

The "accumulation of all powers, legislative, executive, and judiciary, in the same hands...may justly be pronounced the very definition of tyranny."--James Madison, Federalist Paper No. 47

George W. Bush assumed near-absolute power soon after the September 11, 2001, attacks. Unfettered by Congress or the Constitution, Bush led the "war on terror" abroad and championed both the USA Patriot Act and Homeland Security Department domestically. This, of course, led to the Bush Administration's demand that presidential wartime powers permit the President to assume complete control over any and all aspects of an international war on terrorism. Such control included establishing military tribunals and eliminating basic rights long recognized under American law.

The recent revelation that Bush authorized the National Security Agency to secretly spy on American citizens, thus violating federal law and bypassing judicial oversight, raises serious questions concerning presidential power--especially since Bush claims that he possesses "inherent" authority to suspend laws during wartime. Chief among them are a decrease in congressional power to influence wartime decisions and a large increase in power for the executive branch, which would effectively set a historical precedent for unlimited presidential powers.

At stake here is the "rule of law." If the President can simply chart his course and establish his own rules, not being bound by the legislative or judicial branches of the government, he is effectively "above the law." In fact, he is the law.

Indeed, if the judiciary and Congress have significantly diminished roles during perceived times of war, what rule of law binds the President? The frightening answer is that there isn't one.

Generally, history has demonstrated that presidential powers have a constant and evolving ebb and flow. The President's power typically increases dramatically during a time of war and steadily decreases during times of peace. This pattern has had extremely significant consequences through the passage of time.

For example, during the presidency of John Adams, James Madison was shocked out of retirement by what he perceived as an unconstitutional abuse of power. At issue were the Alien and Sedition Acts, which significantly curtailed the rights of foreigners and the press during a time of national crisis. Addressing these laws, Madison, whose words are relevant for today, wrote: "The bill is a monster that must forever disgrace its parents." He added, "It dispenses with trial by jury, it violates the judicial process...and it bestows upon the President despotic power." And this is from the framer who, unlike others who feared a powerful president, supported a strong and independent executive leader. Madison summed up his disapproval of the increasingly powerful executive branch, while also understanding its necessity, when he said, "As there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form."

Later, it was Lyndon Johnson who expanded the role and powers of the President. In order to escalate the war in Vietnam, Johnson assumed major war-making powers with little regard for the views of Congress, the judiciary or the general public. For instance, Johnson had already dispersed U.S. forces throughout Vietnam well before Congress had even drafted the Gulf of Tonkin Resolution of 1964, which gave the president the power to resolve the conflict with any means necessary. Likewise, George H. W. Bush had sent off 550,000 soldiers to the perimeter of Kuwait before conceding a "discussion" with Congress about the decision to go to war.

But undoubtedly the most recent glaring example of swelled presidential war powers is illustrated by President Ronald Reagan throughout the 1980s. Reagan successfully embarked on a trail leading to unfettered presidential power and discretion. Reagan's decision to send an American "peacekeeping" force to Lebanon was in complete disregard of the War Powers Resolution. Passed in 1973, this resolution requires, among other things, that the President "consult with Congress" prior to making war. Reagan also snubbed his nose at Congress when he attacked Grenada. On neither of these occasions did Reagan consult Congress, inform Congress or even seem to care what Congress thought about his decisions. Strikingly, in addressing his role as "Commander-in-Chief," Reagan once remarked, "I do not and cannot cede any of the authority vested in me under the Constitution as President and Commander-in-Chief of the United States Armed Forces."

Even congressional and judicial attempts to limit the powers of the President during times of war have failed through time. Therefore, it seems that history, if an adequate and accurate indicator, shows that the President's "imperial power" is virtually unlimited.

However, a "strict constructionist's" view of the Constitution indicates that President Bush is clearly exceeding his power. In fact, while there is a clear tension between the legislature and executive built into the Constitution regarding wartime powers, any objective reading forces one to conclude that Congress must, at the very least, be involved in decisions made by a President. The Constitution clearly divides wartime responsibilities among both the President and Congress. For instance, the President has the following responsibilities: receive diplomatic representatives of other nations, appoint (with the approval of the Senate) U.S. diplomats, negotiate treaties (subject to the ratification of the Senate) and be the commander-in-chief of the armed forces. Congress, on the other hand, shares in this weighty responsibility in the following ways: authority to declare war, raising of military forces, providing funds for the military and the right to ratify or reject treaties.

From this, it is absolutely clear that the framers did not give the President a vast array of unilateral foreign policy powers. As constitutional historian W. Taylor Reveley III writes, "If we could find a man in the state of nature and have him first scan the war-power provisions of the Constitution and then look at war-power practice since 1789, he would marvel at how much Presidents have spun out of so little."

The structure of the Constitution simply fails to support the notion that the President, as George Bush claims, has unfettered--or even more than slightly limited "inherent"--wartime powers. A reasoned review of the list of the above powers and the way they were distributed among Congress and the President reveals a blatant synthesis. It is that the President was to be a liaison, spokesperson and principal diplomat for the young republic, while Congress was to "declare," and by extension "wage," war. Even the provision describing the President as the commander-in-chief fails to support modern ideas of presidential wartime powers assumed by George W. Bush. This language, on its face, provides the President with the clear and unmistakable power to be the leader of the military--not, as has been done, to bypass domestic and foreign law.

This view of the Constitution is consistent with early documents. For instance, the Declaration of Independence was a scathing indictment of a monarch the framers believed had too much power. Consequently, one of the chief concerns of the framers when they created a constitutional system including separation of powers was to significantly limit the power of the President. In fact, many early Americans feared even the existence of a chief executive. And an executive was only created after the Articles of Confederation were changed and the framers determined that a President was a necessary evil to balance out their ingenious form of government. Even then, the office of President was created with an extremely limited role.

Simply put, if we are to preserve any semblance of the framers' vision, presidential power must be restricted to that originally intended. However, practically speaking, such a result is very unlikely. Indeed, an increasingly weak and corrupt Congress offers little in the way of curbing executive power. As Jonathan Schell writes: "If Congress accepts Bush's usurpation of its legislative power, they will be no Congress and might as well stop meeting."

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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