The Yale Law Journal


The Domestic War

01 Sep 2006

We are fighting three wars, not two. Besides Iraq and Afghanistan, there is a full scale war in the press and in the academy about whether we have an imperial presidency. President Bush’s critics cry that he has violated or ignored numerous statutes; has adopted absurdly narrow understandings of our treaty obligations; and has violated the Constitution. His supporters respond that presidential powers have eroded over the years and that Bush is just restoring executive power.

This domestic war about the allocation of power has many fronts: who may begin a war, whether different wartime rules apply, and whether laws that regulate presidential power during wartime are valid. Though it is far too early to say who will win this war, the various skirmishes over constitutional interpretation are fascinating spectacles for those interested in the separation of powers.

One of the most powerful weapons deployed against the President is the Constitution’s original meaning. Some scholars tell a plausible story about how the original Constitution granted only limited authority to the President to use force and to act in the foreign realm. For example, many scholars denounce the President’s supposed ability to start a war without a congressional declaration. Others claim that the Constitution grants Congress a far greater role in foreign affairs. Using such arguments, critics have hammered the President’s attempts to grasp broad powers.

This is a puzzling resort to originalist arguments by scholars decidedly hostile to originalism in other matters. Many of these scholars see no problem with a living Constitution that has permitted congressional powers to grow by leaps and bounds over 200 years. One question that has yet to be asked (much less answered) is why should we simultaneously embrace an evolving Article I but utterly reject a living, growing Article II. Why isn’t sauce for the congressional goose, sauce for the presidential gander?

On the question of war initiation itself, the critics curiously fail to give the President credit for honoring their constitutional vision. President Bush has been especially solicitous of congressional prerogatives here. He has gone to Congress not once but twice for the authorization to use military force. These are declarations of war under our Constitution. This pattern of executive deference is in stark contrast to President Clinton’s war in Kosovo, where the President declared war all by himself - Congress never authorized the use of force prior to President Clinton’s war.

Another battlefront has been the meaning of the Constitution’s grant of executive power. Following in the footsteps of James Madison, Alexander Hamilton, and many others, recent scholars have argued that the grant of executive power conveys all those powers considered executive in the late-eighteenth century. Among others, these include the power to execute the laws, the authority to control foreign affairs, and the ability to remove officers. The rest of Article II clarifies, qualifies, and restricts that otherwise broad grant of authority.

Some scholars have scoffed at this claim, arguing that the vesting of executive power does not grant any power at all; the President has only those specific powers enumerated in the rest of Article II. Yet this theory has no support in constitutional practice. Since 1789, Presidents have exercised authorities not traceable to any of the power grants contained in sections 2 and 3 of Article II. If the niggardly reading of executive power is to be accepted, we have had an imperial presidency since the days of Washington when he instructed and removed ambassadors, revenue officials, and many other officers.

The failure to come to grips with the President’s executive power makes many arguments about the President’s constitutional powers grievously deficient. Until the scholarly critics of the President stop wishing away the idea that the Constitution actually grants the President “the executive power,” their arguments merit a grade of incomplete.

Critics also carp about the erosion of civil liberties, such as the indefinite detention of enemies. The critics of the President fail to grasp that different rules apply in times of war. It is not the case that the laws fall silent in times of war; it is the case, however, that laws apply differently during wars. For instance, in wartime when faced with an enemy whose favorite weapons are bombs of various sorts, we ought to understand that many more searches are reasonable, even if those same searches would be illegal during peacetime. Likewise, detention of the enemy is absolutely necessary at least as long as the war continues. We should not fight with one arm tied behind our back and start releasing prisoners merely because they have been in detention for five years. It is not our fault that detainees have the ill fortune to have sided with a resolute enemy who shows no signs of giving up.

Perhaps the most vociferous barrages have been reserved for the President’s supposed lawlessness. The frequent refrain is that the President, in his zeal to fight his wars, has violated numerous laws and treaties. Such violations supposedly fly in the face of his duty to take care that the laws be faithfully executed.

The critics fail to grasp that the Constitution does not make the President a slave to Congress. Congress lacks a generic power to regulate presidential power. Hence it cannot decide when the President may pardon individuals or whom the President must appoint. Whatever little authority Congress has over presidential power must be defended by reference to particular, narrow grants of congressional power.

Nothing in the faithful execution clause suggests otherwise. The President’s duty of faithful execution does not make him some law executing automaton, forced to blindly enforce and adhere to all Congress’s laws. If Congress passed a law stripping away the President’s veto power, the President could rightfully ignore that law. Such a law (and similar ones) are void from enactment and are thus not “laws” within the meaning of the faithful execution clause.

Some people cannot stomach the idea that the President may ignore unconstitutional laws—that the Constitution authorizes such “executive review.” Yet denying such authority would put the President at a distinct disadvantage. Almost everyone accepts that the courts can judge the constitutionality of federal statutes. Likewise, the House and the Senate may sit in judgment of the President’s constitutional actions—the former can impeach and the latter may convict and remove. If the President cannot engage in executive review, he would be uniquely hobbled. The veto is a wholly inadequate substitute for executive review because Presidents would be forced to execute unconstitutional laws enacted under prior administrations.

Far from an imperial presidency, what we really have is vortex-like Congress. Statutes swallow up the President’s control over the execution of the law, his exercise of his foreign affairs powers, and his authority as Commander in Chief. Congressional statutes often treat the President as if he were some sort of bureaucratic functionary, subject to numerous congressional fetters. What James Madison warned against long ago rings true today: “The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” There has been a lot of encroaching going on, and Presidents have begun to fight back.

None of these general observations can possibly serve as a defense for all of the administration’s controversial actions. Things are far too complicated for the one page attack and the two page rebuttal. It seems unlikely that the administration’s legal arguments were right each and every time—over the long haul, lawyers, like baseball players, never bat a thousand.

To the contrary, there is a tendency in politics to put the cart before the horse—to decide what must be done before asking what the law permits. This decision making process leads governmental lawyers to make all sorts of arguments (the good, the bad, the fanciful) about what the Constitution and laws provide. One might say that emergencies not only lead to desperate times, but to desperate legal arguments as well. I have little doubt that the current administration has succumbed to this bias, making them no different from anyone else.

It is easy for armchair scholars and litigious activists to criticize the President because these critics aren’t responsible for the defense of the United States. President Lincoln made similarly difficult choices, but I for one don’t judge Lincoln too harshly. And given the nature of this war and our enemy, I doubt that history will judge President Bush too harshly either.

Saikrishna B. Prakash is the Herzog Research Professor of Law at the University of San Diego School of Law. Among Professor Prakash’s articles are The President’s Power to Execute the Laws, and The Executive Power Over Foreign Affairs.

Preferred Citation: Saikrishna B. Prakash, The Domestic War, Yale L.J. (The Pocket Part), March 2006,