Presidential Wartime Powers: A Brookings Panel

Brookings put on a panel hosted by Stuart Taylor that is a fascinating explication of and debate on the issues (historical, constitutional, legal, technical, etc.) related to presidential powers (specifically in relation to the role of Congress and the Courts) in wartime.Topics addressed include the NSA wiretapping, the employment of military tribunals, the Hamdi case, the Padilla case, and numerous other related specific instances that involve presidential wartime powers.

Panelists included Louis Fisher, a constitutional scholar and legal expert for Congress; Bill Galston, formerly a domestic policy advisor for the Clinton administration and now a Brookings fellow; Roger Pilon, formerly of the Justice Department under Reagan and now a Cato Institute fellow, and Andrew McBride, former Deputy Attorney General under George Bush the Elder and now active litgator. Fisher takes the hardline congressional view (what Roger characterizes as the “congressional supremecist” view…a characterization that Fisher disavowed) such that the President does not enjoy much if any mandate for war power without the consent and express authorization of Congress. Galston’s position rejects executive plenary power as to warpowers but endorses a concurrent war-making power between Congress and the executive. Both could be accurately described as hostile, at least in general terms, to the Bush administration position in the NSA wiretapping case. Pilon is very much the polar opposite of Fisher on the issue, taking the view of a strong constitutional endorsement of executive plenary power in warmaking-related areas. McBride takes more of a practical…or I should say current treatment of the issue (as opposed to the Pilon-Fisher wrangling over the intents and missives of Madison, Hamilton, John Jay, Montesquieu, &, of course, John Locke) in assessing hypotheticals and specific cases in terms of the logistics and necessity of executive discretion in wiretapping. He brings the practicality and clear thinking of a practicing litigant to what might otherwise have been the dry discourse of stuffy intellectuals.

Fisher & Pilon’s dispute involves the fundamental powers established for the branches of government under the Constitution. Fisher makes the argument that the Constitution significantly limits executive power and expressly excluded the royal perrogatives of the King that are the form of the ‘inherent exeuctive power’ argument of the Bush administration and those who agree with it. Pilon & McBride point out that Fisher is overlooking the 10+ years between the revolution (where the lessons of Congressional micromanaging armed conflicts were hard-learned) and the fatal flaws of the Articles of Confederation (many of which involved locating too much power in the federal legislature), and Pilon makes the argument that it is the Congress that is limited under the constitution, through the enumerated powers. That the executive power, on the other hand, is not enumerated *because* the Founders (and he cites Madison to this effect) wished to address the problems of the AofC with a strong executive (which necessarily included the royal perrogative powers).

McBride puts Galston hard to the test as to whether his fence-sitting is, indeed, a plausible position. Galston argues that a president has emergency powers to act without the sanction of Congress, but that a president must seek Congressional consent once that emergency has passed. What if Congress fails to consent, querried McBride…and yet you, as president, are convinced that the consequences of aquiescing to Congress’s decision amount to a fatal compromise of national security (the famous ’suicide pact’ issue)? Galston came up with the less than satisfactory answer (in my mind) of a president going ahead with the act (wiretapping, for example) and inviting Congress to impeach him for it.

Though all 4 panelists had distinct (and largely unmoved) positions, consensus was found at least on the prudence of coming to Congress, in some limited fashion, and securing its concurrence in the exercise of executive warmaking power (whether such would be soley advisory or is, in fact, constitutionally mandated is the crux of the disagreement among the panelists).

As I’ve said, the conversation ranges wide and too many issues, arguments, and counter-arguments were raised to do them justice here. I encourage you to take a look at C-SPAN’s programming over the next few weeks and look for the re-broadcast of this program (it appeared on C-SPAN 2 today). It would be 2 hours well spent, I assure you.