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War and Executive Power

War as a tool to consolidate executive power is an old theme. Still, I was taken by surprise by a couple of passages I read yesterday in Gordon Wood’s review of four books on the War of 1812 and James Madison in the current New York Review of Books. (One of the four, George Daughan’s 1812: The Navy’s War, is featured above.) Somehow, there’s never-ending novelty in the news that there’s nothing new under the sun.

Reviewing the historical background to the US’s declaration of war on Britain, Wood explains (emphasis mine) that

Both Democratic-Republican presidents, Thomas Jefferson and James Madison, and their Republican colleagues in Congress had strenuously sought to prevent any augmentation of the country’s military establishment. In January 1812 the Republicans in Congress actually voted down any increase in the size of the navy that was to fight the war they voted for six months later. The Republican Party feared military establishments and war-making because these were the means by which governments had traditionally enhanced executive power at the expense of liberty. Indeed, the Republicans seemed to believe that America’s military posed a greater threat to the United States than it did to Great Britain. Armies and navies, declared John Taylor of Caroline, the conscience of the Republican Party, “only serve to excite wars, squander money, and extend corruption.” Even a strong navy, warned a Republican congressman from Philadelphia, might become “a powerful engine in the hands of an ambitious Executive.”

Later in the review, Wood analyzes President Madison’s war record, concluding (emphasis mine again):

The burning of Washington and other defeats, the many misjudgments, the poor appointments, and the bureaucratic snafus all reveal that the War of 1812 was not Madison’s finest hour. He may have been at times a very successful practical politician, but he was not a decider. He was a legislator, not a natural executive; he was someone who sought to persuade, not command. Believing devoutly in republican principles, he was ill at ease in exercising executive authority. He was, as Henry Clay privately admitted, “wholly unfit for the storms of war.”

But in one important respect President Madison redeemed himself. Throughout all the administrative confusion, throughout all the military failures, throughout all the treasonous actions of the Federalists, Madison remained calm in the conviction that in a republic strong executive leadership—the leadership of a Napoleon or a Hamilton—could only endanger the principles for which the war was fought. Unlike the Federalists who during the Quasi-War with France in 1798 had passed the harsh Alien and Sedition Acts to suppress the opposition, President Madison, as one admirer noted, had withstood both a powerful foreign enemy and widespread domestic opposition “without one trial for treason, or even one prosecution for libel.” No subsequent American president has ever been able to constrain the growth of executive power in wartime as much as he did.

Of course, it helps if the president actually has an interest in constraining the growth of executive power. We know Bush didn’t, and now we know that Obama doesn’t. I won’t go on about that again. I’ll just quote the opening from this piece put out yesterday by PrivacySOS.org:

Let’s go back to school for a minute. Remember learning that the United States had three separate branches of government and a system of checks and balances to prevent any one branch from becoming too powerful?

Congress could make laws; the president could veto them and propose other laws; Congress could override the president’s veto, control the purse strings and had the sole power to declare war while the president served as commander-in-chief; members of the Supreme Court – nominated by the president and approved by the Senate — could declare a law unconstitutional.

This fragmentation of power was seen at the time the Constitution was drafted as the best way to guard against tyranny and protect liberty.

It’s worth pondering what is left of this system in the post 9/11 world where President Obama has embraced and further enlarged the radical assertion of executive authority handed to him by the Bush Administration.

Has there been any serious attempt by Congress to check rapidly expanding presidential power? No. However bent the Republicans might be on denying President Obama any domestic accomplishments, Congress has largely closed ranks behind a “let the executive branch do it” national security agenda.

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Categories: History, Law, War
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