War Powers, Constitutional Balance, and the Imperial Presidency Idea at Century's End

Abstract

Twenty-five years ago, students of the American presidency were confronted with the idea that the chief executive had overstepped the reasonable limits of power and was in danger of becoming imperial. Historian and presidential biographer Arthur M. Schlesinger Jr. wrote the Imperial Presidency(1) to trace the rise and development of presidential power, to identify where and when executive power had grown into executive dominance, and to warn of the consequences of an out-of-control presidency for the American republic. The idea caught on, and the word itself has become common in contemporary political discourse.(2) However, in the early 1970s, Professor Schlesinger was not seeking to sketch out a broad-based indictment of the presidency. Rather, he identified a specific area of concern, the constitutional allocation of power between the legislative and executive branches with attention to matters surrounding the use of military force in foreign settings. The foreword states, This book does not deal systematically with all facets and issues of presidential power.... It deals essentially with the shift in the constitutional balance--with, that is, the appropriation by the Presidency, and particularly by the contemporary Presidency, of powers reserved by the Constitution and by long historical practice to Congress. ... the imperial Presidency received its decisive impetus, I believe, from foreign policy; above all, from the capture by the President of the most vital of national decisions, the decision to go to war.(3) What brought about the fear of an imperial presidency in the early 1970s? The constitutional balance of power, especially the war power, had tilted in favor of the president. Traditional constitutional assumptions based on shared powers and collective judgment had given way as the political and structural conditions on which they were based were altered. The latter half of this century saw the rise of the United States to superpower status, the concomitant need for permanent standing armies (with American troops permanently based on foreign soil), and the development of technologically sophisticated weapons of mass destruction that reduced the war decision to a matter of minutes rather than days or weeks. Professor Schlesinger feared that these changed conditions had helped push the war power fully and exclusively into the hands of a single individual--a form of tyranny that the founders vigorously debated and sought to avoid.(4) A president that could order military troops and weaponry around the globe without fear of being held accountable by a coequal branch of government was a president who had become imperial. A quarter of a century later, the claims of unchecked presidential power in matters of war remain. Political and military conflicts in Lebanon, the Mediterranean Sea, Grenada, Kuwait, Somalia, Ethiopia, and Bosnia have placed the conflict between the executive and legislative branches and the problem of war powers into bold relief. The constitutional balance has not been addressed in a conclusive and satisfying way. Many observers conclude that we are left with a president imperial by default in that the key issue left unresolved by the Philadelphia Convention of 1787, that of the allocation of the war-making power, remains unclear and unanswered. This article is not meant to be another review of the Imperial Presidency. However, twenty-five years later, the language, approach, and interpretive assumptions used in that work continue to provide a basis for analyses and evaluations of presidential initiatives abroad. The Imperial Presidency was published just as this country confronted an oil crisis, the end of the Nixon presidency; and the less-than-satisfying final chapter of the Vietnam War. The book remains an important signpost from that era, and its author himself remains widely read and respected today. …