The continuing concern over the stunning scale of the Obama administration’s domestic surveillance and the fight over the Senate report on the CIA’s use of torture show that in many ways we have not moved on, not only from 9/11, but from the political and constitutional context of the Cold War.  With due respect to those who harp on the dangers of the “imperial presidency” as well as those who stress continuing threats to national security, the real issue with respect to the use of presidential war powers lies in the inadequacy of interbranch deliberation between the president and Congress.  As I argue in my book Long Wars and the Constitution, an inadequate structure for deliberation has led time and again to policy disaster since the end of World War II.

Since 1945, all presidents have boldly made the claim, novel before then, that they had the constitutional power to initiate war.  President Dwight Eisenhower, sometimes regarded as an exception, in fact had no trouble authorizing paramilitary actions as long as they were technically “covert.”  This broad claim struck many as peremptory, but the expansion in presidential power that resulted was in fact enabled democratically, through consistent congressional approval of an enormously expanded military force.

From a constitutional perspective, presidents justified their new power, not simply through their authority as Commander in Chief but also from their largely unquestioned status as the leader of the country in foreign affairs.  As presidents saw it, they were fulfilling their responsibility to the American people to defend the national security.   During the Cold War, presidents tended to see the use of even substantial military force as simply another tool to accomplish the nation’s objectives.  After all, presidents knew very well that in the case of a national security crisis, only the executive branch would take the blame.

Nonetheless, these new presidential powers ran against the grain of the Constitution.  What has happened since World War II is that the plausible position that the president must lead in foreign affairs has been unjustifiably extended to the very different situation presented by decisions for war.  For decades most constitutional scholars who have studied the matter have agreed that the Constitution gives Congress a mandatory check over this decision.  Yet the startling fact is that whether presidents eventually obtained congressional resolutions or not, no post-1945 war has been approved through a process of deliberation in which the president was willing to accept a congressional answer of “no.”  As wars such as Vietnam and Iraq have demonstrated all too well, the consequences have been a dysfunctional foreign policy and the destabilization of our constitutional system.

Despite this, we should have some sympathy for the presidency.  For contemporary presidents are caught in a trap.  The Cold War gave them the responsibility of defending national security without addressing the issue of how to reconstitute sound interbranch decision making.  So the expansion of presidential power has been more a byproduct of widely shared foreign policy objectives than a unilateral usurpation by presidents.  This development was nevertheless unfortunate, because our constitutional system absolutely depends on adequate interbranch deliberation in order to make sound policy decisions.  The task before us is thus not so much to curb a runaway executive branch as it is to come to grips with the challenge posed by the conflict between contemporary American foreign policy and a Constitution still rooted in the eighteenth century.

The presidency was arguably updated for the Cold War in the National Security Act of 1947 which created much of our present national security infrastructure.  But nothing was done to the structure of Congress.  To make Congress an effective partner in the making of foreign policy and thus in the making of decisions for war would require a reorganization of comparable significance.

Consulting Congress probably would not have changed the outcome of at least some of the post-1945 decisions for war.  However, it would have created a constitutionally virtuous cycle of accountability in which both Congress and the American people at large were involved as true democratic participants rather than as spectators.  This would have meant we would have had the possibility of learning from experience – something that was tragically missing from our post-1945 experience with decisions for war.  This option, available before 1945, needs to be available again.

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