The Imperial Presidency: Is this the beginning of its end? We can hope.
By Kent R. Kroeger (July 20, 2018)
Consider this question: When was the last time the U.S. Congress declared war?
December 1941. World War II.
Every U.S. military engagement since then has occurred without a congressional declaration of war, starting with Harry S. Truman’s police action on the Korean peninsula.
On July 18, Representatives Walter Jones (R-NC) and Tulsi Gabbard (D-HI) stood on the Capitol lawn announcing their new U.S. House Resolution 922 calling for Congress to reclaim its constitutional power to declare war. In their resolution, presidential wars not declared by Congress would become impeachable “high crimes and misdemeanors.”
“Ever since, Congress has failed to uphold this congressional duty and has ceded this power to president, presidents of both parties,” Gabbard said at the Capitol lawn press conference. “So our country remains in a state of perpetual war at a great cost to the American people.”
From 2001 to 2016, the wars in Iraq, Afghanistan, Pakistan and Syria have cost this country around $3.6 trillion, according to Brown University researchers.
Constitutional scholar Bruce Fein, who drafted the Jones-Gabbard resolution, offers a more sociopolitical argument in support of House Resolution 922: “War gives birth to a surveillance state and the crippling of privacy protected by the Fourth Amendment under a national-security banner. War replaces transparency with secrecy inconsistent with government by the consent of the governed and congressional oversight of the executive. War destroys the Constitution’s separation of powers — a structural Bill of Rights — by entrusting limitless power to the president.”
In the Jones-Gabbard resolution’s favor is the Constitution itself. The War Powers Clause (Article I, Section 8, Clause 11 of the U.S. Constitution) is crystal clear on what branch of government has the explicit right to declare war: The Congress shall have power…To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.
However, our U.S. Congress is populated by mostly risk-averse politicians unprepared to take ownership of our nation’s many and usually counter-productive wars. In 1950, a war-weary Congress was more than willing to relinquish its War Powers to President Truman at the onset of the Korean War.
Since Truman, wars have been justified under the rubrics of national security and the fulfillment of treaty obligations, policy domains where the executive branch has firm constitutional standing. While Congress always has the power of the purse at its disposal, few in Congress are willing to cut funding for on-going military operations for fear they’d be accused of ‘cutting our military off at the knees.’ Re-election obsessed politicians aren’t going to take that chance. Not now. Not ever.
The constitutional power for making war may reside with Congress, but the political power to do so is decidedly in favor of the president — at least since Truman’s Korean War. Which is why the Jones-Gabbard resolution is so important, even if it is a symbolic gesture unlikely to ever pass out of the House Armed Services committee, much less become law. Their resolution is an opening salvo from Congress in the direction of the Trump administration (and for all administrations hereafter).
Presidential power must be tempered so it will again be in relative alignment with the other branches of government.
At a time when the ethic of bipartisanship feels more appropriate for a drippy, contrived message in a Disney movie than a political discussion, the Jones-Gabbard House bill represents what may be a growing congressional movement— finding material ways to limit the power of a presidency currently in the hands of a man the Washington establishment and half of the American public considers a palpable threat to our national interests and security.
Donald Trump is not a Russian intelligence asset. That belief is the product of a modern, virulent form of McCarthyism whose proponents will soon face their own day of reckoning.
But the reality of Trump is far worse…he’s incompetent and dangerously impulsive. And, if Steven Spielberg’s Abraham Lincoln is correct, Trump is nonetheless “clothed in immense power.”
Thank God, a long overdue conversation is starting in this country about the risks of what historian Arthur Schlesinger Jr. called The Imperial Presidency, a term he penned during the Richard Nixon administration, but meant to be applicable to the executive branch since Franklin Delano Roosevelt.
In critiquing Schlesinger’s book The Imperial Presidency for The New York Times in 1973, writer Garry Wills offered this critique on presidential power: “The celebrants of Presidential power — Sorensen, Neustadt, Burns — have busily if rather quietly gone to work on their palinodes. Naturally, they try to save as much of the prior fabric as they can, amending here, canceling there and subtly restating throughout. Since they all agree that the last good Powerful President was Mr. Kennedy, and that the main count against his successors is Vietnam, the obvious course is to claim that Presidential power remains a blessing — all but the war-making power, which must be cut back.”
…all but the war-making power…which must be cut back.
We’ve known of this problem since at least 1973, yet, the office has only grown more powerful.
The power to make war is peerless among governmental functions. Even Congress’ nebulous power to tax and spend is politically and functionally subordinate to the power of invading a hostile country and changing its alliances and form of government. As a country, we have been comfortable with these War Powers being in the possession of either men who posed no challenge to the existing military-security establishment (LBJ, Nixon, Reagan, Clinton, Obama) or were groomed within it (Eisenhower, JFK, Carter, George H. W. Bush, George W. Bush).
But no prior president comes into office as maladjusted to the office’s demands and expectations as Donald J. Trump. And, yet, his access to its War Powers are only abbreviated by the knowledge and creativity of his national security team. Even the slightest provocation by Iran tomorrow would be enough justification for Trump to start a hot war and there is very little Congress or the American people could do to stop it.
How is this possible?
If you seek to blame someone for the damage Donald Trump is capable of doing to this country (and the world), start the blame game at the feet of FDR. The executive branch grew exponentially under FDR as it addressed two existential crises: a crushing economic depression and an impending World War. Congress simply wasn’t nimble enough to address these problems, particularly with respect to the War.
Fast forward to the present, Trump is the direct benefactor of FDR’s extraordinary political tools, as was every president between Truman and Obama.
Now that we arguably have a rogue president — a fact I don’t completely accept but understand why some do believe this — what do we do now?
Impeaching Trump is not a solution. That is a extempore salve to a bigger institutional problem — an executive branch that has grown too powerful relative to the other branches of government.
There is only one long-term solution to this problem: Reduce the power of the presidency and reassert the already existing constitutional powers of the legislative branch.
“It’s time we found a way to work around this presidency,” suggested former New Orleans mayor Mitch Landrieu, while appearing recently on CNN’s The Axe Files with David Axelrod.
Barack Obama’s former senior adviser immediately laughed at Landrieu’s idea, and his reaction was telling. Axelrod, a political operative of a rank matched in recent times by only Karl Rove and James Carville, is part of the problem Jones and Gabbard are trying to dismantle and his dismissive attitude towards Landrieu revealed his unbowed allegiance to presidential power. And why not? It’s made him rich and a lifetime member of the Washington establishment.
However, Axelrod’s political project to make a junior U.S. Senator from Illinois the most powerful man in the world was both a stunning political success (if simply winning the presidency is the measure) and a debatable failure (if tangible, durable results are the measures).
Yes, Obama helped save the economy at a time when it was conceivable this country would languish in an economic depression for many years. But, even that success is tempered by the knowledge that Obama simply perpetuated and expanded economic policies developed by Wall Street banking interests and initially implemented by George W. Bush’s administration (i.e., TARP and the Federal Reserve’s quantitative easing policy).
It’s not historical chance that our country is still dealing with the consequences of the Truman’s Korean conflict. Presidential-led wars never end because the political purpose they serve never ends.
When they do end, it often coincides with a change in the presidential administration. Eisenhower suspended the Korean War. Nixon/Ford eventually did the same with Vietnam. Obama effectively pulled the U.S. out of Iraq (George W. Bush’s war) only to start his own military adventures in Syria, Yemen and Libya (among others).
These executive-initiated wars rarely represent, or even need, the independent will of the people and, instead, gain their popular support through the imaginary independence of the mainstream media which often has a greater incentive than the president to push for a new, marketable American war.
The U.S. has been in a constant state of war since 9/11. Some might even argue we haven’t stopped fighting wars since V-J Day. The Jones-Gabbard resolution will not stop that fact anytime soon. Presidential power in the age of Trump is still unbowed. It will take an assertive Congress and an clear-eyed American public to turn this ship around.
The Jones-Gabbard House Resolution 922 offers hope in that regard.