President and National Security

1. President and National Security Readings emphasize the growing centralization of power over national security: • Movement of power from Congress to the president • Movement of power of State and Defense to the Presidents staff and NSC

2. Louis Fisher: Invitation to Struggle Argument: Modern presidents have used their powers as commander in chief to conduct military operations without gaining the approval of Congress. This practice differs from the “expectations of the framers” of the Constitution.

3. Early models The British and European monarchical governments vested full authority over security and warmaking with the executive. The King had full power over the army and navy, and could enter into binding treaties with other nations.

4. Early American Government The Articles of Confederation rejected that model: • No executive • Vested foreign policy and warmaking powers with Congress. • With the drafting of the Constitution, warmaking powers remained with Congress.

5. Critique Fisher argues that the Founders rejected the European model by referring the extensive powers of Congress under the Articles, then extending the argument to cover the Constitution. Yet even if we grant his argument re: the Articles, it is very difficult to extend it to the Constitution. One of the reasons for the rejection of the Articles was the weakness of the national government when it came to national security. Enhancing national security under the Constitution entailed creating a strong executive.

6. Interpretation of the Debates Fisher attempts this link by referring to the debates over the Constitution: • Evidence of unease at the prospect of a powerful executive with powers of monarch over war and peace • Emphasis on the role of Congress and particularly the Senate with regard to matters of foreign policy and war

7. Critique While Fisher argues that the division of powers over foreign policy and war between Congress and president a “decisive” rejection of the earlier model, he underestimates the powers given to the President and how closely they resemble the old model: president as appointer of officers, commander in chief, chief diplomat. This is hardly a decisive rejection.

8. Powers of Congress Fisher emphasizes the number and importance of the powers given to Congress: • Finance military • Make military regulations • Call, arm, and discipline militia • Commerce power, which was directly related to issues of war.

9. Warmaking Fisher argues that the Convention created an important distinction: • The president was given the power to conduct military operations (“make war”) when faced with a sudden attack on US or US forces. To be used in an emergency, to repel attacks. • Congress given the power to declare war– to give approval for the initiation of military operations in the absence of an attack on the US

10. Appropriations Fisher also argues that a number of other powers given Congress make clear that military initiative resides with Congress, not the president: • Congress’s power of the purse in general, and particularly over the military, meant to keep power out of the hands of the executive, both to create military forces, and to decide when to use them.

11. Meaning of Commander in Chief • Congress has powers that limit the authority of the President as commander in chief, in that Congress, not president, calls out militia • Having the president act as commander in chief was meant: • To unify command, not initiate war • To keep control of the military in civilian hands • Thus not much more than a title. Critique: this ignores the evidence from the Convention and from Washington that condemned Congressional interference in military matters. Giving office to president means something.

12. Presidential Practice Fisher emphasizes that early presidential practice recognized the power of Congress in this area:] • All early military operations authorized by Congress by declaration of war or other means. • Lincoln acted without Congress, but both he and Congress recognized that those actions, while essential because of the emergency, were unconstitutional. They were regularized retroactively by Congress.

13. Presidential Practice Thus while Fisher concedes the necessity of action by the president, argues that such actions undertaken without Congress are • Unconstitutional, and • Extraordinary. Critique: but should necessary actions by a commander in chief be deemed unconstitutional without explicit textual foundation? Aren’t all military actions in some sense extraordinary?

14. Modern presidents Truman, Bush and Clinton have used their powers as Commander in Chief to initiate military actions. In doing so they have acted unconstitutionally and contrary to the wishes of the founders and early presidential practice.