Kevin Drum poses the reasonable question, What is a wartime president?
It’s safe to say that whatever Bush’s NSA program actually involves, no one would have batted an eyelash if FDR had approved a similar program during World War II. Experience suggests that during a period of genuine, all-out war, few people complain when a president pushes the boundaries of the law based on military necessity. But aside from World War II, what else counts as wartime?
If you count only serious hot wars, the United States has been at war for over 20 of the 65 years since 1940. That’s a lot of “wartime.”
However, if you count the Cold War, as conservatives generally think we should, the tally shoots up to about 50 years of war. That means the United States has been almost continuously at war during the past 65 years — and given the nature of the War on Terror, we’ll continue to be at war for the next several decades.
If this is how we define “wartime,” it means that in the century from 1940 to 2040 the president will have had emergency wartime powers for virtually the entire time. But does that make sense? Is anyone really comfortable with the idea that three decades from now the president of the United States will have had wartime executive powers for nearly a continuous century?
Somehow we need to come to grips with this. There’s “wartime” and then there’s “wartime,” and not all armed conflicts vest the president with emergency powers. George Bush may have the best intentions in the world — and in this case he probably did have the best intentions in the world — but that still doesn’t mean he has the kind of plenary power Abraham Lincoln and Franklin Roosevelt exercised during their wars.
I’m writing a longer piece on the subject for publication elsewhere but, suffice it to say, this ship has sailed.
Nearly half a century ago, legal scholar Edward S. Corwin famously wrote that, “The Constitution is an invitation to struggle for the privilege of directing American foreign policy.” Since FDR and, arguably, TR, the president has won that struggle.
The modern president has reversed the Constitutional presumption that Congress is the preeminent branch and the president secondary. Since Roosevelt, it has been axiomatic that “the president proposes, Congress disposes.” That is especially true in foreign policy and even more so in national security matters.
It’s true that Bush doesn’t have the degree of autonomy as FDR and Lincoln. But that’s mostly a function of public perception of the nature of a war–what he can get away with, to put it more crassly–than any limitation of constitutional power. Much of what FDR and others have done is extraconstitutional. But bold wartime leaders have been flouting the Constitution since at least Lincoln, with the full support of the public.
