After revelations about President Bush ordering surveillance of Americans without obtaining warrants, the boundaries of executive power will undoubtedly be one of the principal issues raised at the confirmation hearing of Supreme Court nominee Samuel Alito. The conservative Alito has publicly endorsed the theory of the unitary executive, which takes a broad view of presidential authority. Alitos liberal critics say his record has been too obsequious to expanded executive power.
The position of these two camps seems peculiar. Many of todays conservatives, such as Alito, Vice President Dick Cheney, and Cheneys chief of staff David Addington, believe that the presidency is not muscular enough. In fact, the vice president, contrary to most scholarship on the issue, feels that, in recent decades, the executive branch has been emasculated. Yet conservatives also tout their custodianship of the original intent of the framers of the Constitution. The nations founders would turn over in their graves if they were to learn of the modern imperial presidency.
The U.S. Constitution was written after a war of independence from what the colonists believed was a despotic king. The document was designed to strictly limit federal power, vis-à-vis the powers of the states and the people. Within the constricted federal realm, the framers intended to make the decentralized Congress the dominant branch and gave that body many more enumerated powers than the president or the judiciary. It is no coincidence that the article of the Constitution setting forth the powers of the legislative branch is listed first and is by far longer than Article II, which lists the responsibilities of the executive branch, and Article III, which covers the judiciary.
In particular, the founders feared the power of a potent executive to impose wars upon the American people in which they would bear the brunt of the costs in blood and treasuremuch as the autocratic European monarchs of the day inflicted such costs on their subjects. Thus, the framers, contrary to conventional wisdom, gave most of the war powers to Congress. The legislature has the power to declare war, raise and support armies, provide and maintain a navy, regulate the land and naval forces, make the rules for captures on land and water, and provide for organizing, arming, disciplining, and calling forth the militia in times of insurrection and invasion. In contrast, the president has only the power of commander-in-chief of the army, navy, and militia when called into service by the federal government.
It is this last power that modern presidents, especially the current incumbent, have attempted to stretch from its narrow origins into the very nightmare the framers wanted to avoida single official with unchecked war powers. President Bush has justified unconstitutional acts in the war on terror by expanding the power of the commander-in-chief beyond the founders intention. He has used that power to justify torture, the surveillance of Americans without a warrant, and the effective suspension of habeas corpus by indefinite detention of enemy combatantsincluding some Americanswithout a trial or access to lawyers. Yet the founders intended only that the president command forces on the battlefield because it was difficult for the many members of the legislative branch to do so. Yes, gathering intelligence is part of that effort, but another part of the Constitutionthat is, the Fourth Amendment in the Bill of Rightsimplicitly guarantees that people will be protected against searches without a warrant. For conservatives that love original intent, the Constitution says nothing about being suspended during wartime. Also, torturing prisoners in violation of the congressionally approved Geneva Conventions and indefinitely detaining them without a trial seem to run afoul of the constitutional provisions providing that Congress has the power to make rules concerning captures on land and water and implying that only Congress, rather than the executive, has the power to suspend habeas corpus in times of rebellion or invasion (this provision is in Article I and not Article II).
Of course, there is currently no rebellion or invasion, so any suspension of habeas corpuswhether by the president or Congressis likely to be unconstitutional. In fact, there is no war; the war on terror is not really a war at all. The post-9/11 congressional resolution authorizing the use of force against the attacks perpetrators and those that harbored them, which the president uses as an additional justification for his domestic snooping, did not even imply the approval of such surveillance, expanded executive power (in fact, members of Congress from both parties went on record specifically rejecting that interpretation), or a declaration of war.
So even though the president and his administration constantly say, we are at war, technically we are not. The last official war the United States fought was World War II. After that, the Congress abdicated its responsibility to declare war. Since then, presidents have declared a unilateral right to send U.S. forces into harms waythe founders worst fear. For example, even though President Bill Clinton couldnt get congressional approval to attack Serbia and Kosovo, he ordered the bombing anyway. Before Gulf War I, President George H. W. Bush claimed that he was asking for a congressional resolution of support, as opposed to a declaration of war, only as a courtesynot because he was required to by the Constitution.
Yet despite the recent bending of the rules, the Constitution and the debates at the constitutional convention were clear that a declaration of war is needed to go to war, unless an invasion prevents the Congress from meeting. Even then, Congress was expected to ratify an existing state of war as soon as it could. In the current war on terror, because Congress has not declared war, the existing congressional resolution should not be used to justify domestic surveillance or anything else. Also, with no official war, the presidents authority as commander-in-chiefinterpreted narrowly by the founderswould be even more limited.
Most of the extraordinary actions that President Bush has taken after 9/11 are unconstitutional. The imperial presidencyespecially its expanded war powersrests on constitutional quicksand.