December 29, 2005

Presidential Power in Wartime

Steven Taylor links to a NSA-inspired Joseph Nye Huffington Post entry where he writes,

If, as news accounts suggest, the action was part of Vice President Cheney’s campaign to strengthen the executive against the legislature, it is not a warranted adjustment in the balancing of liberty and security, but an act arrogance that the administrationcan ill afford when it needs the support of moderates in perilous times.

I wonder how Cheney could make his case that the President's powers have been unconstitutionally limited unless he had a tangible example at hand. Think tanks and scholars have argued about the constitutionality of such laws as the War Powers Act and how much Congress can limit a President (beyond funding) for years, but it's all remained theoretical. Presidents ignore it, and Congress hasn't gone to court to enforce it. If Cheney and the rest of the administration pre-Sep. 11 had argued Presidential power during wartime was as broad as they claim it would have been only a small story, and debate would have been minimal.

From my plain reading of the constitution (something very old fashioned) I think Cheney and John Yoo make a reasonable case. Congress shouldn't be able to run roughshod over the President, and the courts have their limited place as well. However, to get things done with Congress the administration needs to explain itself and retain the "support of moderates in perilous times," the most important part of Nye's post. From recent history, we know Dick Cheney is not best generator of goodwill on Capitol Hill.

UPDATE: If you don't know if you should buy Yoo's book download his 2004 paper "War, Responsibility, and the Age of Terrorism." I'm about a third through it and it's fascinating reading.