WWII fundamentally changed the foreign policy of this country and the power of the President.

The major European powers were destroyed leaving two powers - a hostile Soviet Empire and the United States.

Unlike after previous wars, the United States could not demobilize the military and return to isolationism, leaving policing the world to others.

Instead, the United States needed to maintain its first large standing army and the country was on a quasi war standing for decades during the subsequent Cold War.

Because the Executive as CiC reaches the apogee of its power during war, the United States' semi permanent war footing kept the President at full power.

I disagree with Lederman/Barron that there was ever was much of a tradition of Congress hamstringing the President during wartime. As CiC, the President pretty much had plenary power to prosecute the war. What has changed is that the country is now on a semi permanent war footing and what used to be a temporary spike in Presidential power during occasional wars is now ongoing.

This state of affairs is unlikely to change in the near future. The EU and Japan have checked out of the great power game so no other country is likely to take the United States role are the dominant power during our lifetimes.
 

I agree that the questions about why past interpreters adopted their positions are terribly important. I think without knowing the exact rationales for pre- and post-1950 claims about the application of the Constitution, it's hard to give much weight to the bare fact that past interpreter X thought that the Constitution required Y. I think that past assessments of the application of the Constitution deserve Skidmore deference. Earlier assessments of the application of the Constitution, "while not controlling upon [later interpreters of the Constitution] by reason of their authority, do constitute a body of experience and informed judgment to which [later interpreters] may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." The "thoroughness evident in its consideration" and the "reasoning" involved are critical. If Truman, Nixon, and Reagan didn't offer compelling reasons for their interpretations of executive power, the bare assertion of a prerogative isn't worth much (though the same goes for earlier acquiescence in Congressional assertions of power).
 

Bart,

I'll disagree that it was WW II that changed the power of the President. It was the A-bomb and the acquisition of it by the USSR, which is not the same as WW II.

As severe as WW II was, it was not as severe as the U.S. Civil War, a war that was much more destructive to America than WW II was. Yet the Civil War did not cause the centralization of power into the Presidency.

And after WW II, the U.S. did demobilize. From memory, I seem to recall that the U.S. military was over 8,000,000 men at the end of WW II, and was down about 2,000,000 men by 1947. This was true even though the USSR did not similarly demobilize and in fact swallowed up Eastern Europe.

Korea may also have had a large effect, because besides the possession of nukes by the soviets, Korea showed that America no longer had the opportunity to build up an Army over a years or more. A standing military became necessary because of the much shorter time allowed to counterattack successfully. But the key was the possession of nuclear weapons by the Soviets.
 

It seems to me that Bart and Richard are quibbling around the edges of the same point. The President, given an army, will use it, and various interpretations of the Constitution will not change that basic fact. Before the Cold War, the President normally had only a very small army at his disposal and as a result had to get approval from Congress to wage a war of any size or he would not have the army to do it. Since the beginning of the Cold War, we have had a large enough army that the President could fight major wars whenever he wanted. Whether this is a result of WWII, nuclear weapons, the rise of the US as the leading world power, or some other reason is tangential to this major point.
 

i recall an axiom from a sociology course during the early '70's .. i'm paraphrasing but ...

In that armies are bureaucracies, the fact wars occur is a bureaucratic function. Most institutions encourage and foster activities which justify their continued existence or expansion.
 

Richard:

The reason I started with WWII is not the intensity of the war when compared to past wars, but rather because WWII is the first time the United States took the lead in an international war. We have never relinquished that leadership.

Likewise, FDR set the pattern for the exercise of presidential power during this time of international leadership. You will note that it was FDR's exercise of war powers which the Bushies cite as the standard.

The only thing Truman added which was semi new was going to war without a declaration. I said semi new because we had done so several times before, but not to the scale of a Korea or Vietnam. With the advent of the AUMF, which I have suggested are declarations of war with another name, we appear to be backing away from the Truman police action model.
 

WWII fundamentally changed the foreign policy of this country and the power of the President.

Exactly what form of originalism is that?
 

west said...

WWII fundamentally changed the foreign policy of this country and the power of the President.

Exactly what form of originalism is that?

Allow me to clarify my comment.

WWII did not change the constitutional scope of the President's CiC power, but rather the world leadership we assumed during WWII causes the President to exercise that CiC power on a continuing basis.
 

Since the beginning of the Cold War, we have had a large enough army that the President could fight major wars whenever he wanted.

I think that's exactly right. The ideology of "cold war" was necessary to justify doing what the U.S. had never done, and what the Founders had expressly warned against -- keeping a large standing army.
 

I don't mean to be unclear -- I don't think there's an alternative to keeping a large standing armed force. In the era of jet fighters, submarines, and ICBM's, the enemy can attack too quickly to allow the kind of gradual mobilization we performed as recently as 1942.

However, the dangers of a large standing army make it more important, not less, for Congress to exercise its checks upon the President.

So the real question becomes, why hasn't Congress done that?
 

So the real question becomes, why hasn't Congress done that?

I think the problem is inherent. From the very beginning, Congress has never exercised any check on the Executive in such situations. In the Quasi-War with France, Congress went even further than Adams wanted. It was Congress which pushed hard for the War of 1812, and the Whigs in Congress, despite strong opposition to the Mexican War, proved unable to control it at all.
 

From the very beginning, Congress has never exercised any check on the Executive in such situations.

Good point, tho I would distinguish the Congress's taking the lead from its failing to check the President.

The Mexican War seems to be the paradigm case for a President determined on war who drags a divided Congress along with him.

So if the problem is as deep-seated as that, tho surely exacerbated by the modern military's requirements, then I have to suspect some flaw in the Constitutional allotment of war powers. Paging Dr. Levinson ...
 

Presidents have been on firm ground when they complied with best practices, such as dialog with other stakeholders and tailoring the exercise of power to the exigencies of the situation. Lincoln did this in suspending habeas (at least through June, 1861), as did FDR in the destroyer deal with Britain, and JFK during the Cuban Missile Crisis. We should look for ways to institutionalize these best practices.
 

Nobody elected us world policeman after WWII, "assumed" is a much better verb. But maybe what occurred was accurately identified by Eisenhower, the domination US politics by the military-industrial complex. Certainly nobody represents this better than Cheney.

BTW, I don't think it's correct to say that Congress pushed the war of 1812, the British acts which became the causus belli (trade restrictions, impressment of seamen) had been in effect for some time while Madison tried to play the British off against the French, it was Madison who finally chose the moment.
 

I don't think it's correct to say that Congress pushed the war of 1812, the British acts which became the causus belli (trade restrictions, impressment of seamen) had been in effect for some time while Madison tried to play the British off against the French, it was Madison who finally chose the moment.

At the time and in history books for years, members of Congress such as Clay were known as the "War Hawks" because they pushed for war. While you're right that the story is more complicated than that, Congress certainly didn't resist the war.
 

Bart DePalma writes: "I disagree with Lederman/Barron that there was ever was much of a tradition of Congress hamstringing the President during wartime. As CiC, the President pretty much had plenary power to prosecute the war. What has changed is that the country is now on a semi permanent war footing and what used to be a temporary spike in Presidential power during occasional wars is now ongoing."

Three reactions. First, I think the main point of Barron/Lederman is not that there is a robust tradition of Congress meddling with Presidents' conduct of wars ("hamstringing" has never been the issue). Their main point is the flip side: there is NO tradition before the post-war era of presidents violating or even contesting statutes under their commander-in-chief power. B/L demonstrate that the very idea of a C-in-C "override" appeared for the first time only after the Civil War (in Chase's Milligan concurrence and Pomeroy's treatise), and was never picked up in practice. The first unquestioned example was in the Ford administration.

They also demonstrate significant episodes, like the Second Confiscation Act in the Civil War, where Congress more or less ordered Lincoln to pursue a tactic he didn't like - but perhaps you're right that this tradition was not "robust". It was, however, recurrent.

Second, it's too exaggerated to say that the US has been on a quasi-war standing for decades. The difference between a cold war and a hot war matters.

Third, it's not clear why "the Executive as CiC reaches the apogee of its power during war." The President's power to command and superintend the army and navy is the same in both war and peace; and the President's "power" to do more than command and superintend the army and navy isn't really in the constitution at all.
 

Bart theorizes . . .

"WWII fundamentally changed the foreign policy of this country and the power of the President."

But not WW I?

"The major European powers were destroyed leaving two powers - a hostile Soviet Empire and the United States."

As I recall it -- being your senior in both years and honesty -- the US was (also) hostile to the US, and because of the anti-democratic politics of fear amd smear campaigns of the extremist Reich-Wing, Truman was forced to pretend with that lunatic fringe that that which established the unnecessary Cold War -- was essential to the survival of the [Reich-Wing's paranoia and excuse for its politics of far].

Of the three major powers, the US's natural ally was the Soviet Union -- and let's not pretend that the US gave a damn actually about the form of gov't, or the heinous actions of Stalin: as Truman said of Nicargua's Somoza: "He may be a sonofabitch, but he's OUR sonofabitch."

You'll note that the Reich Wing had no complaints with the mini-Hitler allies of the US such as Somoza; so tyranny wasn't their enemy. It was their need for an enemy, prefereably one who believed (regardless actual practice) an ideology of more generalized equality than Reich-Wing laissex faire authoritarians are willing to allow others to tolerate.

"Unlike after previous wars, the United States could not demobilize the military and return to isolationism, leaving policing the world to others."

Demobilizng the militiary is not the same thing as "isolationism" -- though claiming a unilateral right to commit the war crime of torture is isolationist -- and isolating-and-enemy-making.

"Instead, the United States needed to maintain its first large standing army and the country was on a quasi war standing for decades during the subsequent Cold War."

The US perceived the need to maintain its standing army, and therefore did so, in large part because the largely-chickenhawk extreme REich-Wing can't get its rocks off, or sleep at night, unless there is an excessively large body of on-call bullies to protect their chickenshit asses -- and, of course, to "project" their imaginary courage onto others as unilateral vviolence. See above re. Somoza as an example about whom they had no complaints.

"Because the Executive as CiC reaches the apogee of its power during war, the United States' semi permanent war footing kept the President at full power."

As another says: the authority and the power remain the same during both peace and war -- so should insist those who oppose "living constitutionalism" in favor of their preferred form of ideological stagnation and retrogression.
 

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