The conservative Alito has publicly endorsed the theory of the
unitary executive, which takes a broad view of presidential authority.
Alito’s liberal critics say his record has been too obsequious to
expanded executive power.
The position of these two camps seems peculiar. Many of today’s
conservatives, such as Alito, Vice President Dick Cheney, and Cheney’s
chief of staff David Addington, believe that the presidency is not
muscular enough. In fact, the vice president, contrary to most
scholarship on the issue, feels that, in recent decades, the executive
branch has been emasculated.
Yet conservatives also tout their custodianship of the original
intent of the framers of the Constitution. The nation’s founders would
turn over in their graves if they were to learn of the modern imperial
The U.S. Constitution was written after a war of independence from
what the colonists believed was a despotic king. The document was
designed to strictly limit federal power, vis-à-vis the powers of the
states and the people.
Within the constricted federal realm, the framers intended to make
the decentralized Congress the dominant branch and gave that body many
more enumerated powers than the president or the judiciary. It is no
coincidence that the article of the Constitution setting forth the
powers of the legislative branch is listed first and is by far longer
than Article II, which lists the responsibilities of the executive
branch, and Article III, which covers the judiciary.
In particular, the founders feared the power of a potent executive to
impose wars upon the American people in which they would bear the brunt
of the costs in blood and treasure—much as the autocratic European
monarchs of the day inflicted such costs on their subjects.
Thus, the framers, contrary to conventional wisdom, gave most of the
war powers to Congress. The legislature has the power to declare war,
raise and support armies, provide and maintain a navy, regulate the land
and naval forces, make the rules for captures on land and water, and
provide for organizing, arming, disciplining, and calling forth the
militia in times of insurrection and invasion.
In contrast, the president has only the power of commander-in-chief
of the army, navy, and militia when called into service by the federal
It is this last power that modern presidents, especially the current
incumbent, have attempted to stretch from its narrow origins into the
very nightmare the framers wanted to avoid—a single official with
unchecked war powers.
President Bush has justified unconstitutional acts in the “war on
terror” by expanding the power of the commander-in-chief beyond the
founders’ intention. He has used that power to justify torture, the
surveillance of Americans without a warrant, and the effective
suspension of habeas corpus by indefinite detention of “enemy
combatants”—including some Americans—without a trial or access to
Yet the founders intended only that the president command forces on
the battlefield because it was difficult for the many members of the
legislative branch to do so. Yes, gathering intelligence is part of that
effort, but another part of the Constitution—that is, the Fourth
Amendment in the Bill of Rights—implicitly guarantees that people will
be protected against searches without a warrant. For conservatives that
love original intent, the Constitution says nothing about being
suspended during wartime.
Also, torturing prisoners in violation of the congressionally
approved Geneva Conventions and indefinitely detaining them without a
trial seem to run afoul of the constitutional provisions providing that
Congress has the power to make rules concerning captures on land and
water and implying that only Congress, rather than the executive, has
the power to suspend habeas corpus in times of rebellion or invasion
(this provision is in Article I and not Article II).
Of course, there is currently no rebellion or invasion, so any
suspension of habeas corpus—whether by the president or Congress—is
likely to be unconstitutional. In fact, there is no war; the “war on
terror” is not really a war at all.
The post-9/11 congressional resolution authorizing the use of force
against the attacks’ perpetrators and those that harbored them, which
the president uses as an additional justification for his domestic
snooping, did not even imply the approval of such surveillance, expanded
executive power (in fact, members of Congress from both parties went on
record specifically rejecting that interpretation), or a declaration of
So even though the president and his administration constantly say,
“we are at war,” technically we are not. The last official war the
United States fought was World War II. After that, the Congress
abdicated its responsibility to declare war. Since then, presidents have
declared a unilateral right to send U.S. forces into harms way—the
founders’ worst fear.
For example, even though President Bill Clinton couldn’t get
congressional approval to attack Serbia and Kosovo, he ordered the
bombing anyway. Before Gulf War I, President George H. W. Bush claimed
that he was asking for a congressional resolution of support, as opposed
to a declaration of war, only as a courtesy—not because he was required
to by the Constitution.
Yet despite the recent bending of the rules, the Constitution and the
debates at the constitutional convention were clear that a declaration
of war is needed to go to war, unless an invasion prevents the Congress
from meeting. Even then, Congress was expected to ratify an existing
state of war as soon as it could.
In the current “war on terror,” because Congress has not declared
war, the existing congressional resolution should not be used to justify
domestic surveillance or anything else. Also, with no official war, the
president’s authority as commander-in-chief—interpreted narrowly by the
founders—would be even more limited.
Most of the extraordinary actions that President Bush has taken after
9/11 are unconstitutional. The imperial presidency—especially its
expanded war powers—rests on constitutional quicksand.
Ivan Eland is a Senior Fellow at The Independent Institute,
Director of the Institute’s
Center on Peace &
Liberty, and author of the books
The Empire Has No Clothes, and
Putting “Defense” Back into U.S. Defense Policy.