Balkinization  

Monday, August 04, 2008

Louis Fisher on John Yoo on Jefferson and Executive Power

Mary L. Dudziak

John Yoo takes up the history of presidential power in two new SSRN papers on Thomas Jefferson and Andrew Jackson, finding in their presidencies support for broad executive power. For the Legal History Blog, guest blogger Elizabeth Hillman contacted noted scholar of the history of presidential power, Louis Fisher, for his reaction to this new work. What follows is Hillman on Fisher, Yoo's abstract for the paper Jefferson and Executive Power, and a detailed review of the paper by Fisher. In another post later this week, Fisher takes up Yoo's second paper, Andrew Jackson and Presidential Power. The substance is below the fold.

Cross-posted from the Legal History Blog, post by Elizabeth Hillman.

Dr. Louis Fisher is among the nation’s foremost experts on constitutional law and public policy, with particular expertise in (among other areas) executive authority, separation of powers, and war powers. A specialist in the law Library of the Library of Congress, he has been both a prolific scholar and dedicated public servant since he first joined the staff of the Congressional Research Service in 1970. Dr. Fisher has testified before Congress dozens of times; is frequently cited as an authority in Supreme Court briefs; and has spoken about the U.S. Constitution in nearly 30 countries around the world. He has published hundreds of articles and many books, including American Constitutional Law (7th ed., 2007, with David Gray Adler); In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (2006); Constitutional Conflicts Between Congress and the President (5th ed., 2007); Presidential War Power (2nd ed., 2004); and Nazi Saboteurs on Trial: A Military Tribunal and American Law (2003).
Here is the SSRN abstract for Yoo's piece on Jefferson:
Jefferson and Executive Power by John Yoo, University of California, Berkeley, School of Law
This paper argues that Thomas Jefferson was not the opponent of presidential power commonly assumed today. Jefferson is often thought to be a sharp critic of executive authority because he favored a national government of limited powers and because of his opposition to the Washington and Adams administrations. But as President, Jefferson expanded executive authority by resisting the courts, buying Louisiana, conducting foreign affairs, and managing legislation through Congress. Jefferson's actions as President did not contradict his positions in the opposition, as claimed most famously by Henry Adams, but were instead consistent with his earlier views on executive power. In fact, Jefferson supported perhaps the broadest conception of the Presidency in his belief in a Lockean prerogative that would allow the executive to act without constitutional authorization, so long as the people approved after the fact.
Here is Fisher's response:
John Yoo, "Jefferson and Executive Power." Review by Louis Fisher, Library of Congress.
This article offers a good overview of the legal and constitutional philosophy of a President. No doubt Jefferson actively invoked executive power, but many of the examples cited by Yoo raise no questions of illegal or unconstitutional action (trimming the number of Federalists in government, exerting leadership in Congress, and pardoning those convicted under the Sedition Act). Yoo goes beyond those examples to describe actions by Jefferson that might appear to sanction unchecked and exclusive executive power.
For example, he has this statement by Jefferson: "The transaction of business with foreign nations is executive altogether." Those words, if taken at face value, are misleading. Yoo neglects to point out that Jefferson was writing about a very narrow dispute concerning the Senate's role in the appointment of ambassadors and consuls. The issue was whether the Senate had a right to veto not only the person to be appointed but also the grade the President might want to use for the foreign mission. Jefferson fully realized that both branches make foreign policy through statutes and treaties and that it is the President's duty to represent the nation in seeing that the law was carried out. "Transactions" meant some form of communication; it did not mean unchecked, unilateral presidential policy.
Yoo makes no mention of an important role that Jefferson played with the Algerine treaty of 1792. President Washington wondered if it was better to borrow money to pay "tributes" (bribes) to the Barbary pirates. As Secretary of State, Jefferson counseled against that course. Loans would have to be repaid and Congress would not be happy about Washington's unilateral commitment. He advised Washington to go to Congress (both houses) to get approval, and to share treaty documents not only with the Senate but with the House. Washington did so. Louis Fisher, The
Politics of Executive Privilege
30-33 (2004).
Several years later Washington made his famous statement about the House not being entitled to receive documents on the Jay Treaty, explaining that only the Senate had a constitutional role. This argument was makeweight, a disingenuous effort to keep from the House materials that were highly embarrassing to the administration and might have doomed congressional support for the treaty. Jefferson and other Presidents understood that it was often important to bring the House into treaty commitments and also to involve Senators and Representatives in the negotiation of treaties.
Yoo glosses over the Aaron Burr trial and concludes that it marked "the first true precedent for executive privilege." Oddly, he relies on a secondary source (Forrest McDonald's "The Presidency of Thomas Jefferson") instead of the trial transcript, which Yoo looked at quite closely when he wrote a 1999 article for the Minnesota Law Review.
Anyone reading the trial transcript would understand that it is inaccurate for Yoo to say that "Jefferson on principle refused to acknowledge the court's right to force the executive to produce information." It is true that Jefferson said that if the President were "subject to the commands" of the judiciary he might become subordinate to another branch. Jefferson also said he could not be kept "constantly trudging from north to south & east to west" responding to court orders, but that simply meant he could not personally appear in court. His subordinates from the administration could do that trudging -- and they did.
Jefferson knew that he could not charge Burr with treason (carrying a death sentence) on the basis of letters from General Wilkinson and not show those documents to Burr. That was elementary for any criminal proceeding. The administration's case was so weak that a final showdown was not necessary. As Yoo notes, Burr was acquitted. Had the trial proceeded, Jefferson faced a choice: either give Burr the documents or drop the charges. Jefferson understood that and so did Chief Justice John Marshall. Yoo mentions none of this. The Burr trial was not "the first true precedent for executive privilege."
Yoo provides substantial detail on Jefferson's sending of ships to the Mediterranean and military encounters with the Barbary pirates. Very interesting material and well told. The fact is that Jefferson realized that the only branch that could take the country from a state of peace to a state of war was Congress, and for that reason (as Yoo states) he told Congress: "Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence," he needed lawmakers to pass authorizing legislation. Congress did so, and did again with Madison, for a total of ten authorizing statutes. No "inherent" power existed for the President to act unilaterally for reasons of national security.
Jefferson's initiatives with the Louisiana Purchase are described in close detail by Yoo. It is true that Jefferson went beyond treaty instructions, the law, and the Constitution in buying not just New Orleans but the whole Louisiana territory. To Jefferson's credit, he never claimed to be acting legally or constitutionally. He did not find, somewhere in Article II, legitimate grounds for action. As Yoo explains, initially Jefferson thought it advisable to go public with his misgivings and ask for a constitutional amendment to bless the purchase. When that seemed likely to upend the negotiations, he chose to remain quiet and let the transaction proceed. He hoped
that Congress would sanction what he had done and he prevailed.
Yoo correctly describes Jefferson's belief in the Lockean prerogative: the right of an executive -- for the public good -- to take action sometimes in the absence of law and even against it. But the executive must then come to the legislative branch, explain what he did, and face the consequences: either retroactive approval or being removed from office. As Yoo explains, Jefferson looked for ratification of an ultra vires action: "an indemnity from the people through their representatives in Congress."
Jefferson did not claim plenary, exclusive, independent, or inherent presidential authority. He never argued, as did the Bush administration after 9/11, that presidential powers under Article II enabled him to violate any statute or treaty that stood in his way. I think it is false for Yoo to write: "Contrary to popular belief,Jefferson believed in an independent Presidency with inherent powers." Jefferson believed in the Lockean prerogative, subject to the conditions described above.
In reading this article, I wondered if John Yoo decided to look to earlier Presidents to determine whether their concept of the office might justify what President George W. Bush did after 9/11. Perhaps my suspicions are groundless, but the quote above did not help, nor the following: "Madison's low performance is attributable in part to his narrow view of his constitutional powers as President." Nothing in Jefferson's presidency lends support to the view widely circulated in the Bush administration that the President is endowed with inherent powers in national security that trump statutes, treaties, judicial decisions, and the Constitution.

Comments:

Really, it is not in the least surprising that whoever is President will favor expanding the powers of the office. That was fully anticipated and part of the plan from the very start.

But two things have happened that were not anticipated and were not part of the plan. First, it was anticipated that if the President pushed to expand his power, Congress would push back. But (as Professor Levinson is fond of pointing out) members of the President's party in Congress instead place partisan advancement ahead of institutional prerogative.

The other thing that has happened is that executive power, meaning the executive power of government in general, not just of the US federal government, has grown far beyond what anyone in the 18th century could have anticipated. We are left with 18th century institutions for allowing mutual checks between the executive and legislative branches, but an executive so large and powerful as to throw the 18th century system off balance altogether.

What Jefferson would have thought of the size and scope of the executive branch today is anyone's guess.
 

I'm guessing that Andrew Jackson is not going to be a good role model.

I never quite liked Jackson, and Howe's What Hath God Wrought confirmed my prejudices nicely -- a dangerous use for any book, but consoling now and then.
 

"Yoo" must be kidding to take Yoo seriously enough to engage. His mere presence in our country is a strong argument for more rigorous immigration control.
 

I object to the anti-immigrant slur. I think that is inappropriate. I think Yoo is a war criminal for his OLC work but that has nothing to do with whether he or his parents are immigrants. It is also a slur on all Korean immigrants to which I really object.
Best,
Ben
 

Even if he did not recognize it as such, President Bush appears to have extensively used Mr. Jefferson's Lockean Prerogative where the Executive acts as necessary even if arguably contrary to the rules, lets the Congress know how he is acting and then allows the Congress to either ratify the action or impeach him.

President Bush created the Terrorist Surveillance Program, the financial surveillance programs, the CIA coercive interrogation program and the rules for combatant status hearings and military commission trials and notified Congress of each act as it was occurring.

Congress appears to have acquiesced to this Lockean Prerogative. In response to President Bush's notifications, Congress implicitly ratified every act and then when the programs were leaked, expressly ratified every act except for the CIA coercive interrogation and the financial surveillance programs.
 

Is it sufficient for the executive to selectively allow some members of Congress in on the secret? (We will accept, for the sake of this argument, Bart's all-knowing assertion that the members of Congress were fed the whole picture, rather than snippets that made them appear far less outrageous than they were -- after all, selectively leaking information would be unthinkable for this administration.)

I would answer that with a big NO -- ultimately, all information necessary to make a decision must filter down to the electorate, in my opinion -- but what do I know?
 

c2h50h:

I am not opining whether Mr. Jefferson's Lockean Prerogative as practiced by Mr. Bush is good policy. Rather, I am simply observing the fact that Mr. Jefferson's constitutional real politik is alive and well.
 

Perhaps after all, this brand of revisionist history writing is publishOrPerish. I appreciate the original post's reference to other historians who offset the selective narratives which are Yoo's penchant.
 

This comment has been removed by the author.
 

One has to wonder how long Berkeley will suffer such an ongoing public embarrassment.
 

This comment has been removed by the author.
 

Terra-ist enabler Ethyl al-Cahal challenges our patriotic "Bart"'s arguments:

Is it sufficient for the executive to selectively allow some members of Congress in on the secret? (We will accept, for the sake of this argument, Bart's all-knowing assertion that the members of Congress were fed the whole picture, rather than snippets that made them appear far less outrageous than they were -- after all, selectively leaking information would be unthinkable for this administration.)

I would answer that with a big NO -- ultimately, all information necessary to make a decision must filter down to the electorate, in my opinion -- but what do I know?


The limited role of Congress (or some very tiny subset thereof) in being "read in" to the programs is hardly legal ratification. Particularly since those "read in" were in no position to do anything about it if they disagreed.

There is no provision in the Constitution that say that the silence of some subset of Congress makes an action lawful.

Any action to make something lawful (whether ex post facto or prospective) requires the full assent of Congress through the duly prescribed procedures for enacting legislation, and this is true whether or not any prior unlawful actions were "disclosed". The point of disclosure is to argue for the necessity of the actions and the need to legalise such. The disclosure is in the interest of getting the "ratification", and in now way makes the actions legal in and of itself.

I'd also note that the provisions for "reading in" Congress to various executive actions are, in many cases, part of mandated oversight, and not a favour granted Congress for which Congress should be thankful and STFU. The disclosures to Congress are required by the laws in and of themselves, and in no way do they immunise the behaviour being reported.

Not to mention, the revelations of these programs were not open voluntary, but resisted at every turn. Legitimacy derived ex post facto through ratification requires disclosure and reasoned argument, which is what C2H5OH is saying in his last sentence.

Cheers,
 

If Bush were exercising a Lockean prerogative, he would not be asserting executive privilege at every turn. The Lockean prerogative is like civil disobedience--you disobey the law when it is wrong, and face the consequences afterward without evasion or shame.

Instead, Bush has gone very far to avoid accountability for his actions.

That said, the Lockean prerogative is crap. The whole point of a constitutional government is to constrain governmental actors before the fact. The only way it's even conceivably a good idea is if the very existence of the republic were threatened. It is self-evident that a ragtag group of terrorists from the hills of Central Asia cannot bring down our governmental apparatus. So even if Bush were invoking such a prerogative, it would be a hollow plea.
 

daniel:

Mr. Bush is exercising executive privilege for advice given to him by his advisors and lawyers. The existence and nature of the programs to which I referred was disclosed to Congress when they were implemented.
 

BDP:

Not really seeing your point. Miers and Bolton are using executive privilege to attempt to avoid testifying about the US Attorney firings. Are you saying that Bush revealed the full extent of the US Attorney firing program to Congress before he fired them? If so, when?

Anyway, the Lockean prerogative refers to ultra vires action followed by acquiescence to the legislature. There is no acquiescence when Bush and his aides say that Congress may not even examine their actions and motivations to determine whether and how to respond.

If you're talking solely about the spying program, then you might have a point. However, it is worth noting that while Bush eventually did reveal that he had acted unlawfully, he pointedly lied about it for several years (the money quote is from 2002). That is not really accepting and facing accountability for his actions.

But even assuming arguendo that it is, that just strengthens my broader point about the Lockean prerogative being a bad idea.
 

daniel said...

If you're talking solely about the spying program, then you might have a point.

That is one of the programs to which I cited. I was not addressing the executive privilege issue.

But even assuming arguendo that it is, that just strengthens my broader point about the Lockean prerogative being a bad idea.

I would suggest that the Lockean Prerogative theory is better thought of as a necessity defense. Rules do not contemplate every eventuality and, when there are lives on the line, sometimes necessity takes precedence over the rule book.
 

"Bart" DeFascista:

I would suggest that the Lockean Prerogative theory is better thought of as a necessity defense. Rules do not contemplate every eventuality and, when there are lives on the line, sometimes necessity takes precedence over the rule book.

Sure, there may be times you think you need to "cross the line". But then, as has been stated above, you take responsibility for doing so, and accept the consequences. I will once again link to my post from way back when. Ignoring the law (and continuing to do so proudly) is just an authoritarian "In your face!!!"....

Cheers,
 

to paraphrase bitswapper in re bdp;

One has to wonder how long Balkinization will suffer such an ongoing public embarrassment.
 

Jefferson never faced the big challenges to federal power that were faced by later presidents -- Andrew Jackson (nullification), Zachary Taylor (threatened secession over Compromise of 1850), and Abraham Lincoln (actual secession) -- and there is no way of knowing how he would have responded to such challenges.

Overall, I think the US presidency is a bad institution. The president has too much power. Several politicians spend many months campaigning for the office, and the time spent is largely wasted for the losers. Too much rests on the outcome of close elections. I think the system used by many other countries is much better: the chief executive is (1) chosen by the legislature, (2) may be removed by a legislative vote of no confidence, and (3) may resign for personal reasons.
 

Compared to the British Prime Minister, the American President is a fairly weak office.

In Britain, the entire Government is run by the majority party and the PM heads that party. The Parliament runs on a majority vote without the checks filibusters or vetos. Power is far more concentrated and streamlined than in America. This is why Sandy and many of his fellow liberals like the British system.

In the United States, the power of the elected representatives is broken up between two branches and further broken up between two houses of Congress. Different parties can control each of the branches and each of the houses of Congress.

Between the two elected branches, the Congress is by far the most powerful. Nothing beyond very short term actions can get done without the Congress' approval. A President could theoretically pick a fight and start a small scale war, but no large scale action is possible without Congress appropriating the funds to move the forces into position and to fight it.

Because the voters and not the Party choose the President, fellow party members in Congress do not have the same loyalty to the President as a parliamentary party would have for the leader it choses. While a strong PM can maintain unified parliamentary support for a decade or more, an American President is lucky if his "honeymoon" with Congress lasts his entire first term.

Even when the President has the loyalty of his fellow party members in Congress, the minority party can still block initiatives in the Senate through the filibuster.

In sum, our constitutional system was expressly designed to check the arbitrary exercise of power by essentially requiring a super majority consensus to get anything done.

The idea that Mr. Bush is or even could be some sort of a dictator is laughable.

Mr. Bush's secret intelligence gathering initiatives were all repeatedly reviewed and funded by Congress' leadership. If Congress' leadership actually thought the programs to be unwise or even unlawful, they could have pulled funding and impeached the President. The leadership did neither and thus implicitly ratified these programs without dissent.

When the programs were disclosed to the enemy and the public, the Congress could have again pulled funding and impeached the President if it actually thought the programs to be unwise or even unlawful. Indeed, it would have been exceedingly easy for even a substantial minority to stop funding of the programs in the Senate. The only reason Congress expressly ratified Mr. Bush's Terrorist Surveillance Program and system for identifying and trying enemy combatants was not because "King George II" issued a dictatorial decree, but rather because these programs enjoyed bipartisan super majority support.
 

if that's the case bart .. all it does is multiply the number of nooses which need be prepared to deal with the miscreants ..

when the laws cease to have effect .. justice becomes an even more compelling principle for the people to enforce ..
 

"Bart" DeFascista:

Mr. Bush's secret intelligence gathering initiatives were all repeatedly reviewed and funded by Congress' leadership. If Congress' leadership actually thought the programs to be unwise or even unlawful, they could have pulled funding and impeached the President. The leadership did neither and thus implicitly ratified these programs without dissent.

Aside from the factual inaccuracy of the claim that "Mr. Bush's secret intelligence gathering initiatives were all repeatedly reviewed and funded by Congress' leadership", there's a more fundamental problem:

Congress in under no obligation to do either ("pull funding" or "impeach") should the preznit violate the law. Furthermore, even if Congress were required to do so, their violation of the law would in no way make Dubya's violation any more legal.

The idea that Congress "implicitly ratified these programs" so as to make them legal is -- simply put -- a legal absurdity.

Cheers,
 

The only reason Congress expressly ratified Mr. Bush's Terrorist Surveillance Program ...

It's not known whether Congress did such a thing with the FISA amendments. As we all know, Comey and others were set to resign if the program was not halted, it was that egregious. We still don't know why.

Cheers,
 

Bart DePalma said...
>>>>>> Compared to the British Prime Minister, the American President is a fairly weak office.

In Britain, the entire Government is run by the majority party and the PM heads that party. The Parliament runs on a majority vote without the checks filibusters or vetos. Power is far more concentrated and streamlined than in America. <<<<<<<

I was not holding up the British system as a particularly good system to follow -- I don't know that much about it. I was just speaking in general terms.

>>>>>> Because the voters and not the Party choose the President, fellow party members in Congress do not have the same loyalty to the President as a parliamentary party would have for the leader it choses. <<<<<<

Sometimes the president's degree of control over his party's members of Congress is so great as to not just give the appearance of bossism but as to actually be bossism. This presidential bossism became apparent to me in the nominations of John Bolton, Bush's unpopular nominee for the UN ambassadorship, and Robert Bork, Reagan's unpopular nominee for the Supreme Court. And members of Congress often bloc-vote along party lines in support of or in opposition to the president's position.

>>>>>> Mr. Bush's secret intelligence gathering initiatives were all repeatedly reviewed and funded by Congress' leadership <<<<<<

Bush has not been in harmony with Congress on surveillance issues. He threatened to veto a surveillance bill because the bill did not contain an amnesty for telecom companies that had cooperated with the government in illegal surveillance activities.
 

Neocon Bart wrote:-

"Compared to the British Prime Minister, the American President is a fairly weak office. In Britain, the entire Government is run by the majority party and the PM heads that party...."

Every political system devised by fallible humans has its advantages and its disadvantages. When the US Constitution was drafted by your founding fathers (who after all knew the British system intimately), they deliberately designed a system where the prerogative powers of the Crown (in fact exercised by the Prime Minister) were distributed differently.

So it might be true to say that the US system was "designed" to give the US President less power than a British Prime Minister has. The question is whether it is working as designed.

Bart: "Power is far more concentrated and streamlined than in America."

So far as the day to day conduct of business is concerned, that is certainly true. In an emergency, the UK system can be like greased lightening compared to that of the Federal government. In part that is because of the absence of the "spoils system". All government departments are headed and staffed by non-political career civil servants with perhaps no more than 5-10 political advisers in each - For each minister there is an equivalent permanent official. That makes the machinery of government work a lot faster.

Bart: "The Parliament runs on a majority vote without the checks filibusters or vetos.... In the United States, the power of the elected representatives is broken up between two branches and further broken up between two houses of Congress. Different parties can control each of the branches and each of the houses of Congress."

Not quite true. The UK Prime Minister must command a majority of the House of Commons to survive - and because he has at his disposal (i) a large "payroll vote" of all the ministers who hold government office and (ii) a brutally efficient whipping system, a Prime Minister usually gets his legislation through the House of Commons. Not so in the House of Lords where the government does not have a majority. And when public opinion turns against the government, sparks fly - the PM's majority evaporates, there are rebellions, so changes of PM and early elections are always a possibility.

Bart: Between the two elected branches, the Congress is by far the most powerful. Nothing beyond very short term actions can get done without the Congress' approval. A President could theoretically pick a fight and start a small scale war, but no large scale action is possible without Congress appropriating the funds to move the forces into position and to fight it....In sum, our constitutional system was expressly designed to check the arbitrary exercise of power by essentially requiring a super majority consensus to get anything done.

Yes, that was how the system was designed by your founding fathers. But is it working like that ?

At the time the Constitution was drafted, the fathers had the British antipathy to any standing army. In today's world, the President commands the largest and most powerful standing army in the world and the constitutional checks and balances have fallen into disuse. Eisenhower's warning about the danger of the military-industrial complex was prescient. The power of the purse is now largely illusory: the President does not have to go to Congress and ask permission to (i) declare war, (ii) raise an army and (iii) buy the muskets - he goes on TV and deploys, and only then asks Congress to ratify the inevitable.

The USA has not declared war since WW2, but has been involved in innumerable uses of force since them - some blatantly illegal - such as Iran Contra and the Reagan interventions in Latin America. Not to mention the Enterprise of Iraq.

Key to the system working in any way remotely resembling the vision of your founding fathers (a real senatusconsult with the 'conscript fathers' before any hostilities) is, of course, curbing the ability of the executive to control and if necessary conceal or distort the flow of information to the Congress.

We have the same problem in the UK which is why our Parliament has set up functional oversight committees modelled on the Congressional ones - still relatively toothless but quite effective in some ways.

So this American debate is one which mirrors a concern in all 21st Century democracies: how can a legislature exercise proper oversight of the executive without information and how can it ensure it gets the information it needs.

There can be no doubt that the Bush Administration (like the Reagan Administration) has sought to expand the power of the presidency, to conceal information from Congress and the public and to assert novel prerogatives, privileges and immunities.

Belatedly, Congress is seeking to reassert itself in the twilight of its existence. So the real issue now is how will matters proceed with a new administration and a new congress.

Will there be an effective inquiry into what went wrong under Bush ? Will there be prosecutions or impeachments ? Will there be action to deny tax advantages to the so-called institutions of leraning serving as Neoconservative propaganda vehicles ? Will the Congress amend its rules of procedure so as to enable it to undo that which the Bush Administration has wrought in so many fields AND exercise oversight AND conduct an effective review of what went wrong ? There are only so many days in a 4 year term.

Since we in the UK have much to learn from the US on oversight of the executive, we shall be watching with interest.
 

Experts! Bah! They're all just elitists who hate America.

< /Bush Administration>
 

Mourad said...

BD: Bart: Between the two elected branches, the Congress is by far the most powerful. Nothing beyond very short term actions can get done without the Congress' approval. A President could theoretically pick a fight and start a small scale war, but no large scale action is possible without Congress appropriating the funds to move the forces into position and to fight it....In sum, our constitutional system was expressly designed to check the arbitrary exercise of power by essentially requiring a super majority consensus to get anything done.

Yes, that was how the system was designed by your founding fathers. But is it working like that ?

At the time the Constitution was drafted, the fathers had the British antipathy to any standing army. In today's world, the President commands the largest and most powerful standing army in the world and the constitutional checks and balances have fallen into disuse. Eisenhower's warning about the danger of the military-industrial complex was prescient. The power of the purse is now largely illusory: the President does not have to go to Congress and ask permission to (i) declare war, (ii) raise an army and (iii) buy the muskets - he goes on TV and deploys, and only then asks Congress to ratify the inevitable.


Sorry, it does not work that way.

The US ability to project across the globe enough force to take down an entire country in a matter of months is actually an amazing logistical feat which is unique in history. Such a projection is also extremely expensive.

Neither the military action in Afghanistan or Iraq was possible without Congress appropriating enormous sums of money months before the operation so that the troops have time to deploy. In each case, the Administration was working intimately with Congress to line up funding far ahead of time. If Congress had declined funding, neither war would have occurred.

Whether Congress requires a declaration of war/AUMF prior to funding a war is a matter of their discretion. If a President is wise he will request one to rally public support and to commit Congress politically to the war before the inevitable and unpopular casualties start occurring. However, the reason Congress often funds wars while declining to declare them is to avoid such joint political responsibility.

Key to the system working in any way remotely resembling the vision of your founding fathers (a real senatusconsult with the 'conscript fathers' before any hostilities) is, of course, curbing the ability of the executive to control and if necessary conceal or distort the flow of information to the Congress.

What makes you think the President kept Congress in the dark on any substantive action in this war? There is no evidence of this.

Do not confuse the political posturing of Dem representatives and senators as poor confused naifs with reality. For example, Senator Rockefeller, the ranking Dem on the Senate Intelligence Committee, by the accounts of his colleagues enthusiastically supported the Terrorist Surveillance Program while at the same time writing a CYA letter voicing unspecified doubts. When the NYT disclosed the program, Rockefeller disingenuously pretended to be largely ignorant of the TSP, only to then champion its ratification by gutting FISA. The only naifs are those who believe Rockefeller's Sergeant Shultz routine claiming: "I know Nothink!"

Belatedly, Congress is seeking to reassert itself in the twilight of its existence. So the real issue now is how will matters proceed with a new administration and a new congress.

Please. Once again, do not confuse political posturing for reality. The same Dem Congress which has convinced its leftist base that it is Shocked! SHOCKED! to find various unspecified "crimes" committed by an Administration in implementing the TSP then turns around and votes in large bipartisan majorities to gut FISA to ratify that same TSP.

This is similar to the GOP telling their conservative base that they are fiscal conservatives and then turn around and increase spending by nearly a third during this Administration. The only difference I can see between the bases is that many conservatives stopped voting GOP in 2006 to protest their profligacy with the voters' money. In contrast, the Charlie Brown Dem base will vote Dem no matter how many times their Lucy party pulls away the football and and votes for things like the TSP.

In sum, the system is working exactly as I stated it does by requiring super majority consensus to get anything done.

Mr. Bush's Social Security private account idea did not have a super majority consensus and died in Congress.

In contrast, Mr. Bush's programs for fighting the war (apart from perhaps water boarding) generally have super majority consensus and have been ratified by Congress implicitly and explicitly. While opponents of these programs may not like to admit it, their viewpoint is limited to a distinct minority of the electorate.
 

"Bart" DeAuthoritarian:

The US ability to project across the globe enough force to take down an entire country in a matter of months is actually an amazing logistical feat which is unique in history. Such a projection is also extremely expensive.

Typo there. Should be "pick up some small crappy little country and throw it against the wall, just to show the world we mean business". See, e.g., "Granada"....

We noticed the "expensive part". Somewhere around the $2 trillion mark. Now it's at $9 trillion.

As for the legality (not to mention morality, and fidelity to our professed "democratic" aspirations) of such actions....

But nice of our proto-fascist "Bart" to make a clean breast of his thoughts on politics and the law.

Cheers,
 

For example, Senator Rockefeller, the ranking Dem on the Senate Intelligence Committee, by the accounts of his colleagues enthusiastically supported the Terrorist Surveillance Program while at the same time writing a CYA letter voicing unspecified doubts.

"Alice laughed. `There's no use trying,' she said `one can't believe impossible things.'

"`I daresay you haven't had much practice,' said the Queen. `When I was your age, I always did it for half-an-hour a day. Why, sometimes I've believed as many as six impossible things before breakfast."

-- The Rev. C.L. Dodgson, observer and critic par excellance of politicians....

Cheers,
 

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