THE WARTIME PRESIDENT

Executive Influence and the Nationalizing Politics of Threat

By William G. Howell, Saul P. Jackman, Jon C. Rogowski

THE UNIVERSITY OF CHICAGO PRESS

Copyright © 2013 The University of Chicago
All rights reserved.
ISBN: 978-0-226-04825-3

Contents

LIST OF TABLES AND FIGURES………………………………………….xiPREFACE…………………………………………………………..xiiiACKNOWLEDGMENTS……………………………………………………xixPART I: BACKGROUND…………………………………………………1 War and the American Presidency……………………………………3PART II: THEORIZING ABOUT INTERBRANCH BARGAINING DURING WAR…………….2 The Policy Priority Model…………………………………………313 The Model’s Predictions about Modern U.S. Wars………………………63PART III: EMPIRICAL INVESTIGATIONS…………………………………..4 Spending in War and in Peace………………………………………1075 Voting in War and in Peace………………………………………..1426 Case Studies I: Illustrations……………………………………..1827 Case Studies II: Challenges……………………………………….217PART IV: CONCLUSION………………………………………………..8 Summaries, Speculations, and Extensions…………………………….261PART V: APPENDIXES…………………………………………………A Technical Details, Chapter 2………………………………………275B Alternative Bridging Criteria, Chapter 5……………………………292C Summary Tables, Chapter 5…………………………………………296D Robustness Checks, Chapter 5………………………………………308BIBLIOGRAPHY………………………………………………………323INDEX…………………………………………………………….333

CHAPTER 1

War and the American Presidency

Wars contribute mightily to presidential power, so statesmen and scholarshave told us for centuries. The microfoundations for such claims arenot always clear, and systematic evidence that wars, all wars, necessarilyexalt presidential power remains in short supply. But before clarifying thetheory and empirically evaluating the claims, we would do well to surveythe existing intellectual landscape, to trace the broad contours of an argumentthat has stood at the very center of American political debate for thebetter part of two centuries.

Among the Founders, such arguments established a primary justificationfor vesting Congress, rather than the president, with the power to wagewar—lest the nation quickly devolve back into monarchical rule. The exigenciesof the nation’s greatest wars—one civil, two world—encouragedsubsequent presidents to articulate ever more expansive readings of theirArticle II powers. For scholars in the mid-twentieth century, the relationshipbetween war and presidential power had become so self-evident thatit warranted the status of “law” or axiom. With the threats of terrorismand state failure shaking the nation’s conscience, some advocates of aunitary theory of the executive branch now insist that national securitythreats are so endemic and so pervasive that divisions between peacetimeand war time powers and domestic and foreign policy influence no longermake sense. With greater knowledge of foreign policy threats and thesingular capacity to address them, presidents, it seems to some, demandcontinual deference during war.

Ideas about war and presidential power did not progress neatly, witheach engaging and, where necessary, building off the insights of those thathad preceded it. Disagreements regularly surfaced about a wide range ofparticulars—about the relevant constitutional justifications for war timepowers, assessments of the precedential value of specific war time acts,definitions of judicial and congressional deference, and the like. Moreover,few writers bothered to hone the logic or build the evidentiary basis forthe claim that presidents can, as a matter of course, accomplish things inwar that would necessarily stymie them in peace. Consequently, contemporaryarguments about war and presidential power are no more completeand no more exact than those offered centuries ago.

In the main, however, the arguments have been consistent. They canbe reduced to the following claim: wars exalt presidential power. Or, moreexactly, when the nation is at war, the president can (some would also saymust) advance policy initiatives at home that during peace would surelyfail. Over the last 250 years, this message has constituted much more thanconventional wisdom—conventional wisdom, after all, typically presumesthe possibility of contending (albeit inferior) schools of thought. On thematter of war and presidential power, however, all the greatest commentatorson the American system of governance have converged upon a singleview.

Going back to the nation’s founding, political scientists have worriedthat through war presidents would find the means to exalt their powermore generally. As Alexander Hamilton recognized in Federalist No. 8, “itis the nature of war to increase the executive at the expense of legislativeauthority.” Echoing these sentiments, in his fourth Helvidius pamphletMadison argued, “war is in fact the true nurse of executive aggrandizement.”To justify the conclusion, Madison noted:

In war, a physical force is to be created; and it is the executive will,which is to direct it. In war, the public treasures are to be unlocked; andit is the executive hand that is to dispense them. In war, the honours andemoluments of office are to be multiplied; and it is the executive patronageunder which they are to be enjoyed. It is in war, finally, that laurelsare to be gathered; and it is the executive brow they are to encircle.

Hamilton and Madison, of course, disagreed about the merits of a powerfulpresidency. But on their particular assessment of war’s contribution topresidential power, the two adversaries stood together. On the basis of suchjudgment, they opted to vest Congress with the authority to declare war.

Those who opposed the Constitution at the time, of course, took such argumentseven further. For them, the assignment of almost any war powersto the presidency inexorably led not merely to the expansion of executivepower, but to the unraveling of a republic into tyranny. The Anti-FederalistPapers bristle with condemnation against an “elective king” whose war powerspermit and even encourage the concentration of virtually all governmentauthority. Writing under the pseudonym Cato, George Clinton recognizedthe president as “the generalissimo of the nation, [who] of course has thecommand and control of the army, navy and militia; he is the general conservatorof the peace of the union.” By taking the nation to war, Clintoninsisted, the president would brandish powers that no government of a freepeople should retain. “Will not the exercise of these powers therefore tendeither to the establishment of a vile and arbitrary aristocracy or monarchy?”

Primary among the Anti-Federalists’ fears was the possibility that thepresident, as commander in chief, would use the army as an instrumentof his own empowerment. Many of the controversies surrounding the existenceof a standing army and the subservience of state militias to a federalmilitia stemmed from abiding concerns that a federal military wouldbecome the arm of the president’s dominion. Though Congress might ostensiblyhave the authority to declare war, who had the power to stop apresident intent on using the military as he saw fit? Speaking before theVirginia ratifying convention, Patrick Henry intoned:

Away with your President, we shall have a King: the army will salute himMonarch; your militia will leave you and assist in making him King, andfight against you: and what have you to oppose this force? What will thenbecome of you and your rights? Will not absolute despotism ensue?

With the military and through war, Henry and his fellow Anti-Federalistswarned, presidents would trample upon every individual right that the Constitutionostensibly protected.

Anti-Federalists and Federalists, of course, interpreted the Constitutionvery differently, and they held wildly divergent views about the consequencesof ratification. Anti-Federalists expected that presidents wouldexploit their narrowly defined powers, and therefore the states ought to rejectthe Constitution. Federalists pointed out that the Constitution grantedthe all-important decisions about war to Congress, and hence it deservedto be ratified. However, the two sides fundamentally agreed about the dangersof vesting excessive war powers in a single man, and they were deeplypreoccupied by the possibility that through war a president might eventuallybecome, for all intents and purposes, a king.

Nearly every subsequent generation of scholars has revisited the Founders’concerns that wars would exalt presidential power not merely on thebattlefield but at home as well. Alexis de Tocqueville argued that the “firstaxiom of science” dictates:

War does not always give over democratic communities to military government,but it must invariably and immeasurably increase the powersof civil government; it must almost compulsorily concentrate the directionof all men and the management of all things in the hands of theadministration.

Writing a half century later, James Bryce put it as follows:

[Though] the direct domestic authority of the president is in time ofpeace very small … [in war] it expands with portentous speed. Bothas commander in chief of the army and navy, and as charged with the”faithful execution of the laws,” the president is likely to assume all thepowers which the emergency requires.

In the words of Edward Corwin, whose views we examine in greater depthlater in this chapter, the nation’s greatest wars offer a clear lesson:

The President’s power as Commander-in-Chief has been transformedfrom a simple power of military command to a vast reservoir of indeterminatepowers in time of emergency.

According to the constitutional law experts Eric Posner and AdrianVermeule:

Because the executive is the only organ of government with the resources,power, and flexibility to respond to threats to national security,it is natural, inevitable, and desirable for power to flow to this branchof government. Congress rationally acquiesces; courts rationally defer.

Says the contemporary champion of the unitary theory of the executive,John Yoo:

War acts on executive power as an accelerant, causing it to burn hotter,brighter, and swifter.

And on and on.

Within political science, the relationship between war and presidentialpower received its most careful attention in the mid-twentieth century.And no wonder. The devastation wrought by two world wars separatedby little more than two de cades demanded explanation. And so politicalscientists launched entirely new research agendas on security studies,international relations, and the domestic politics of war. Within this lattercamp resided some extraordinarily influential scholars who arguedthat wars, particularly total wars, had utterly transformed the Americanpresidency.

1.1 A Notion Expressed

For three of the most famous twentieth-century presidency scholars,Edward Corwin, Clinton Rossiter, and Arthur Schlesinger Jr., war stoodat the very center of the American presidency. Individually, each of thesethree titans wrote prodigiously on the impact of war on our system ofseparated powers generally, and more particularly on the willingness ofadjoining branches of government to actively promote presidential powerduring times of crisis.

Corwin devoted a significant portion of his masterwork The President:Office and Powers to the issue of presidential power during times of war,which he then followed up with a series of University of Michigan lecturespublished as Total War and the Constitution. Reflecting on the nation’sthree largest wars—the Civil War and the two world wars—Corwin saw thepresident’s constitutional authority as being at its apex. Abraham Lincoln,Woodrow Wilson, and Franklin D. Roosevelt all flexed their ArticleII powers, and Congress and the courts steadfastly refused to stand intheir way. Indeed, Corwin observed, Congress during these wars activelysupplemented the president’s constitutional powers with new statutoryauthority over a wide range of policy domains; and at least as long as troopsremained in the field, the courts refused to interfere. Based on his readingof the historical record, Corwin concluded “the principal canons ofconstitutional interpretation are in war time set aside so far as concernsboth the scope of national power and the capacity of the President togather unto himself all constitutionally available powers in order the moreeffectively to focus them upon the task of the hour.” A war time jurisprudence,one that looks considerably more kindly upon exercises of presidentialpower, supplants a peacetime jurisprudence for at least as long asAmerican troops are fighting and dying.

Over the course of his career, Corwin appears to have been conflictedover whether presidential power promptly reverts to its prewar status whenfighting at last ceases. Writing just a few months after the U.S. interventioninto World War I, Corwin suggested that “in the heat of war the powers itconfers are capable of expanding tremendously, but upon the restorationof normal conditions they shrink with equal rapidity.” If true, then thosewho worry about the state of the Constitution during war need only hastenthe return of peace. Yet later in life, Corwin recognized that powers exercisedduring war may spill over into times of peace: “constitutional practicesof war time have molded the Constitution to a greater or less extentfor peacetime as well.” Corwin further suggested that when presidentsconfront altogether new crises, they benefit from the powers claimed duringpast ones. “In each successive crisis the constitutional results of earliercrises reappear cumulatively and in magnified form.” New peaksof presidential power are reached with every successive presidency, astoday’s war time president draws upon all the precedents of past wars, andtomorrow’s president will add to that stockpile the actions and argumentsasserted by today’s.

The resulting increase in war time presidential power may be steady,but it need not be precedent-setting. The precedent-setting value of somewars has been markedly greater than others. In this regard, Corwin distinguishesthe Civil War from World Wars I and II. From Corwin’s perspective,the Civil War, defined by Lincoln’s fleeting incursions into the domesticpolity and his continual homages to constitutional limits on presidentialpower, did not fundamentally alter the office of the presidency. But the twoworld wars, with their development of massive war time administrations,sweeping claims of presidential power, and emergency delegations of authority,plainly did.

In even less qualified terms, Clinton Rossiter developed many of thesame arguments. Trying to account for the astronomical rise of presidentialpower during the nation’s first 175 years of history, Rossiter observed, “Insuch time, ‘when the blast of war blows in our ears,’ the President’s power tocommand the forces swells out of all proportion to his other powers.” Thisinfluence, however, was hardly confined to the conduct of war. By Rossiter’saccount, it permeated policy domains that are only tangentially related tothe war effort:

As proof of this point, we need only think of the sudden expansion inpower that the Presidency experienced under Lincoln as he faced therebellion, under Wilson as he led us into a world war, or under FranklinRoosevelt as he called upon Congress to extend him “broad Executivepower to wage war” against depression. Each of these men left the Presidencya stronger instrument, an office with more customary and statutorypowers, than it had been before the crisis.

This expansion, moreover, is not the exclusive province of great presidentsin great wars. Rossiter admonishes:

Nor should we forget lesser Presidents in lesser crises, for these men, too,left their mark on the office. When Hayes dispatched troops to restorepeace in the railroad strike of 1877, when McKinley sent 5,000 soldiersand marines to China during the Boxer uprising, and when Harry Trumanacted on a dozen occasions to save entire states from the ravages ofstorm or fire or flood, the Presidency moved to a higher level of authorityand prestige—principally because the people had now been taughtto expect more of it.

According to Rossiter, presidents can claim new influence over the doingsof government even without launching a massive war or keeping troops inthe field for excessive periods of time. The equivalent of a battalion or twowill often suffice, and the effects may be felt almost immediately.

In his doctoral dissertation “Constitutional Dictatorship: Crisis Governmentin the Modern Democracies,” Rossiter was especially emphaticabout the necessity of resurrecting an all-powerful executive for the durationof wars. Unless power is concentrated in the presidency, governmentpolicy reaches beyond its typical bounds, and the executive branch is liberatedfrom constitutional proscriptions—the three criteria of Rossiter’s”constitutional dictator”—a state’s ability to survive is unnecessarily imperiled.While recognizing that an expansion of presidential power duringwar does not, of itself, ensure the state’s survival, Rossiter argued that,other things being equal, “a great emergency in the life of a constitutionaldemocracy will be more easily mastered by the government if dictatorialforms are to some degree substituted for democratic, and if the executivebranch is empowered to take strong action without an excess of deliberationand compromise.” Should they renounce constitutional dictatorship,governments conspire in their own demise.
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