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Where's Congress In This Power Play?

President Bill Clinton's stint in the White House proved no exception. He broadly interpreted his war powers and aggressively used executive orders to bypass Congress -- for example, ignoring a House vote opposing intervention in Kosovo. Clinton issued 107 presidential directives on policy, according to Harvard Law School Dean Elena Kagan. Reagan issued nine and George H.W. Bush just four.

Today, the argument for unchecked presidential power is starkly different from earlier invocations. While previous administrations have violated civil liberties -- as in the post-World War I Palmer raids and the incarceration of Japanese Americans during World War II -- such actions were public and short term. When Confederate troops neared Washington in the Civil War and mobs in Baltimore attacked Union troops, President Abraham Lincoln suspended habeas corpus -- the principal legal protection against unlawful detention. As Baltimore's mayor threatened to blow up railroad bridges used by Union troops, Lincoln acted without waiting for Congress to return from recess. Yet he subsequently sought and received congressional approval.

Unlike Lincoln and other past chief executives, President Bush asserts that he has the power to set aside fundamental laws permanently -- including those that ban torture and domestic spying. The White House today argues that there will never be a day of reckoning in Congress or the courts. To the contrary, it does all it can to shield its use of unilateral detention, torture and spying powers from the review of any other branch of government. Even after five years, the lawfulness of incarcerating hundreds of detainees at Guantanamo Bay, Cuba, has not been reviewed by another branch.

Never before in U.S. history, we believe, has a president so readily exploited a crisis to amass unchecked and unreviewed power unto himself, completely at odds with the Constitution. This departure from historical practice should deeply concern those in both parties who care for the Constitution. Even in military matters, Congress has considerable authority. For instance, the Constitution specifies that Congress can "make Rules for Government and Regulation of the land and naval Forces." Military intelligence, military surveillance and military detention are all matters on which Congress can dictate the terms of how the commander-in-chief's power is exercised.

Debates at the 1787 Constitutional Convention in Philadelphia, and in the state ratifying conventions that ensued, conclusively undercut the current administration's claim to unaccountable power. Alexander Hamilton, the founding era's foremost advocate of executive vigor, disdained efforts to equate the new president's authority with the broad powers of the English monarchs. And even assuming that Hamilton was wrong in asserting that presidents have less power than English kings, the British monarchy had in fact been stripped of power to "suspend" parliamentary laws after the Glorious Revolution of 1688, about 100 years before the Constitutional Convention. The Constitution simply contains no unfettered executive authority to annul laws on a president's security-related say-so.

There is no reason to abandon the founding generation's skepticism of unchecked executive power. The Constitution rests on a profound understanding of human nature. Hamilton, James Madison and the other framers and ratifiers knew that no single individual, whether selected by birth or popular vote, could be blindly trusted to wield power wisely. They knew that both the executive and Congress would make mistakes.

The Supreme Court has repeatedly backed a strong oversight role for Congress. "The scope of [Congress's] power of inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution," it wrote in 1975. Congress has repeatedly met its constitutional responsibility as a coequal branch, even in times of war, and regardless of partisan interests. Oversight is not a Republican or Democratic issue. In World War II, then-Sen. Harry S. Truman coordinated aggressive inquiries into the Democratic administration's mismanagement of war procurement. During the Civil War, Republicans in Congress drove Lincoln's first secretary of war from office by their investigations.

Today's questions about presidential power are certainly not ones that have Republican or Democratic answers. The institutional imbalance that is evident today should trouble legislators of both parties.

We believe that most Americans still would agree with the Church Committee when it stated: "The United States must not adopt the tactics of the enemy," for "each time we do so, each time the means we use are wrong, our inner strength, the strength that makes us free, is lessened."

fritz.schwarz@nyu.edu aziz.huq@nyu.edu

Frederick A.O. Schwarz Jr.,

a lawyer with New York University's Brennan Center for Justice, was chief counsel for the Church Committee in 1975-76. Aziz Huq is a Brennan Center fellow. Their book is "Unchecked and Unbalanced: Presidential Power in a Time of Terror."


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