Subordinate or dictator? Interpretations of commander-in-chief clause by members of Congress Casey Dominguez Department of Political Science and International Relations University of San Diego [email protected] Paper prepared for presentation at the Annual Meeting of the American Political Science Association, Washington, D.C., September 2-5, 2010 1 Subordinate or dictator? Interpretations of commander-in-chief clause by members of Congress1 This paper reports preliminary results of a more extensive project to understand the intellectual and legal history of the commander in chief clause of the U.S. Constitution. This project hopes to eventually develop a rigorous explanation of when, and why, the balance of war powers between Congress and the president has changed over time by content analyzing members of Congress’ references to the commander in chief clause. Focusing on four declared wars, this initial paper, based on an ongoing data collection effort, aims only to test a few simple hypotheses. First, it tests, and shows support for, the claim that the president’s inherent war powers were understood to be far more limited during the early Republic than during the twentieth century. The data also suggest that major changes in the nation’s understanding of the inherent war powers of the president took place far earlier than is usually recognized in the existing literature. Second, it tests whether it has always been the case that members of the president’s party argue for more expansive presidential war powers, and that members of the opposing party argue for more limited presidential war powers. It finds support for both hypotheses in the nineteenth century, with evidence of a major shift toward presidential power by partisan opponents of the president at the beginning of World War I. Students of American institutions should naturally be interested in the relationships between the president and Congress. However, the evolution of war powers falls into a category of inquiry that is important not just to studies of the presidency or to students of history, but also to the field of American Political Development. Among Orren and Skowronek’s recommendations for future work in American Political Development, they argue that ―shifts in governing authority,‖ including and especially shifts in the system of checks and balances, ―are 2 important in historical inquiry, because they are a constant object of political conflict and they set the conditions for subsequent politics, especially when shifts are durable‖ (Orren and Skowronek 2004, 139). How an essential constitutional power, that of deploying military force, changed hands from one institution to another over time, would certainly seem to qualify as a durable shift in governing authority. While the text of the Constitution and the powers it grants have not changed over time, the authority, or accepted right, to initiate hostilities, does seem to have shifted from the Congress to the president. The historical evidence presented by Louis Fisher (2004) and others (Gibbons 1987, Van Wynen Thomas and Thomas 1982, Wormuth and Firmage 1986) demonstrates that presidents and Congresses of the founding generation, whose actions presumably reflect the original understanding of the Constitution, behaved as if they believed that presidents’ only unilateral power to use force was to briefly defend the nation against sudden attacks, and that Congress maintained power over the offensive use of force in both perfect and imperfect wars (Fisher 2004, 3, 7). Thomas Jefferson, for example, authorized naval vessels in the Mediterranean to defend the nation if fired upon by one of the Barbary powers who was demanding a tribute, but went to Congress for permission to engage in any offensive maneuvers (Fisher 2004: 34). Abraham Lincoln, famous for his own unilateral mobilization of the army, naval blockade, and suspension of habeas corpus, believed his own actions were illegal Fisher contrasts this early shared understanding of the constitutional distribution of war powers with modern arguments. He cites, for example, the statement by Senator Judd Gregg, about President Clinton’s decision to send ground troops to Bosnia in 1995: ―Clearly, the power to undertake actions which put American soldiers’ lives in harm’s way lies primarily and first with the President,‖ (Fisher 2004, 185). 3 There is a minority viewpoint, however, which argues that the Constitution gave the president broad unilateral powers to defend the nation, including the ability to deploy troops into hostile environments for offensive purposes. These proponents would probably claim that since there has been no change in presidential authority, there is nothing in this subject to study (Yoo 1996, 2002). Examining statements made by members of Congress about the president’s powers as commander-in-chief can supply concrete evidence to help resolve this debate over whether a change in power has actually occurred. Moreover, if there has been a change over time in the powers assumed to be inherent in the commander-in-chief clause of the Constitution, the next task is to identify precisely when, and why, our collective understanding of the president’s inherent war powers grew over time. This paper hopes to trace changes in that authority by examining members’ of Congress perception of their own and the president’s powers through close reading of congressional debates during declared wars. I focus on declared wars because these are periods when presidential power would be theoretically uniform, and at its maximum, and therefore it should be more straightforward to detect changes in perceived authority. I hope, in the future, to extend this work to undeclared wars and periods of ―peace‖ as well. We could, in theory, look to many different sources of information (court cases, op-eds, textbooks, law journals) to understand how our collective interpretations of the Constitution changed over time. Others have focused on the role the court, in particular, has played in the expansion of presidential war powers (e.g., Rossiter 1951, Silverstein 1994). However, especially because courts so rarely intervene in these issues, the most relevant actors to questions about the distribution of powers between the president and Congress are presidents and members of Congress themselves. Since war powers are shared by the two branches (at least on paper), 4 Congress is the actor that literally empowers the president, either by its silence or by its active delegation of its own authority. It is, therefore, appropriate to look to Congress for clues about how it construes the balance of power. It is not unreasonable to assume that the dominant beliefs about the constitutional war powers of both branches would have some impact on the actions Congress as a body takes. If, for example, members of Congress do not believe that the commander in chief clause confers a certain power (to move troops into another country unilaterally, to issue credible threats without Congress’ permission, to acquire territory), they may hold presidents accountable who take that power upon themselves, as Congress did by censuring James K. Polk for initiating the Mexican-American War. Similarly, if the prevailing opinion in Congress is that the commander-in-chief clause does confer a particular power upon the president, they may defer to him passively or pass legislation supporting the use of that power. Therefore, one way to understand when and why presidential war powers grew is to try to understand how members of Congress perceived those powers. This paper begins by collecting and analyzing the statements made by members of Congress in the Congressional Record. At the very least, statements in the Congressional Record (or the Annals of the United States Congress, or the debates reported in The Congressional Globe, as historically appropriate), tell us about the conventional wisdom regarding the war powers of the president and Congress at a particular point in time. Analyzing each specific instance in which a member of Congress referred to the president as the ―commander-in-chief‖ can help us better understand what powers members of Congress concede to the president as a result of that constitutional phrase, and what powers they argue are not encompassed by the phrase. It also gives us a dataset in which we can measure change in usage over time. 5 There is a large literature on the balance of war powers that spans the fields of history, law, and political science. A survey of this existing research on war powers does not identify one single, coherent explanation of how and when the authority to deploy troops changed over time. There are, rather, several competing (often implied) hypotheses, although most are not articulated as such, and most are not tested explicitly. The first, and most common hypothesis, is that there was something about the post-World War II period that changed the way the nation, and the Congress, thought about whether Congress or the president should have the authority to initiate the use of force. Sundquist attributes the increased deference to the president to the Cold War consensus (as do Stern and Halperin 1994: 1), and to reaction against congressional isolationism prior to the war (Sundquist 1981:111). Laurance (1976) and Rohde (1994) attribute it to the internal structure of Congress during that period. Deering (1988) attributes it to the growth of the standing army and navy after the war. Sundquist and Fisher also point to the precedent established by Truman in the Korean conflict. Similarly, the passage of the War Powers Resolution in 1973 marked a change in presidential powers, one that most scholars agree unintentionally empowered the presidency by formally recognizing and authorizing the president’s right to deploy troops into hostile situations for up to 60 days (Fisher 2004, Meernik 1995). There can be no question that both the War Powers Resolution and Congress’ complete acquiescence to Truman’s unilateral action initiating the Korean War were major incidents in the evolution in the balance of war powers, but it is unclear when that Congressional deference began.