Writing in support of ratification of the U.S. Constitution, the learned James Madison cautioned:
If men were angels, no government would be necessary. In framing a
government which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control
itself. A dependence on the people is no doubt, the primary control
on the government; but experience has taught mankind the necessity
of auxiliary precautions.
So it would be necessary, he continued, to separate powers and provide various checks to balance power between the various branches of the proposed new American federal government. "But it is not possible," Madison would continue, "to give each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates" (Hamilton, Madison and Jay, 1961:322).
Accordingly, as Angela and John Roddey Holder would explain, "The framers of the Constitution envisioned the Congress as the most important and most powerful branch of government" (1997:19). It would be the people's branch; it would have extensive enumerated powers establishing the very basis of federal authority. And so began a slow, evolutionary tug of war for the preeminent role of institutional leadership in American policymaking, an ebb and flow of competition across time.
American policymaking since September 11, 2001 (hereafter 9/11) has both shed light upon, and has in fact redefined, the congressional-presidential balance of power in the realm of foreign policy generally and war making particularly, as will be examined in the pages below. Two sections follow. We begin with an overview of the history of presidential-congressional rivalry across America's war making, establishing the point that the administration has, in the words of Charlie Savage, reinstituted an "era of unchecked executive power" (10-07:25). Next, we turn to the heart of the matter in answering the question, "How, exactly, has this presidential power grab been accomplished?" The discussion concludes with a query of the implications of America's most recent venture into empire building by noting unmistakable parallels between Bush policy and neoconservative ideology.
Institutional Rivalry: An Overview
In 1787 America's founding fathers proposed and subsequently set in place a remarkable constitutional arrangement of shared powers. Federalism would divide state and national authority; Montesquieu's ideas would be incorporated in order to separate powers and allow for various checks and balances of authority; the rule of law would be employed to defend liberties while protecting the other constitutional arrangements as they changed across time. Two hundred and twenty years later, the arrangement is a marvel to those of us who attempt to understand and study the process.
Because wars were inevitable--and because executives are prone to war making--the American system vested the authority to declare and fund war with the peoples' branch, the legislature. In an historical sense, Congress was the dominant branch of the federal government from its inception through the early decades. But there were exceptions, periods of challenge requiring unity of dispatch by executives in order to assure American interests and even national survival.
The president (Washington) might declare American neutrality (Britain vs. France), but he would do so timidly, as though to acknowledge overstepping his authority. Congress itself might essentially "instruct" a president (J. Adams) to manage a conflict (maritime conflict with France). The president (Jefferson) might decide to discontinue paying tribute to a foreign nation (Tripoli), but it would be for Congress to decide whether to make anything more of it. Seeing opportunities to expand the size of the country, presidents (Monroe, Jackson) could be bold, but only under the pretense of "hot pursuit" against a nation (Spain) which uses surrogates to invade American territory. …