Since he ordered military action in Libya in 2011, President Obama has argued as a matter of routine that Article II of the U.S. Constitution confers such considerable power upon the commander-in-chief that, in most instances at least, Congress’s role in foreign affairs is limited to that of advice bureau. The political ironies of this development are sufficiently rich to stand without much comment. (Imagine, if you will, trying to explain to an average voter in 2008 that by his second term the Democratic candidate for president would have adopted wholesale an interpretation of the Constitution that was championed by the likes of George W. Bush, Dick Cheney, and John Yoo.) Less obvious, however, is what this means for America and her future. The bottom line: It’s not good.
In the course of illustrating why we do not accord presidents unlimited power on the world stage, Obama’s critics have made much of his apparent hypocrisy, charging that a man who once flatly rejected the notion that the White House may do pretty much as it pleases has, while in office, morphed into Napoleon. This does seem to be the case. American chief executives, Obama told the Boston Globe in a 2007 interview, do not enjoy “power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” “In instances of self-defense,” he continued, “the president would be within his constitutional authority to act before advising Congress or seeking its consent.” These days, such caution is a distant memory, the White House tersely informing congressional leaders last week that while the president already possessed the “authority he needs to take action” against the Islamic State, he hoped that the legislature would come along anyway — not, of course, to confer legality upon any military action, but because he believed that the “nation is stronger and our efforts more effective when the president and Congress work together.”
Men in all walks of life change their minds from time to time, and they are often left better off for the shift. But there is something rather slippery about the manner in which this president has managed to transpose himself from a champion of the legislature’s prerogative to an uncompromising advocate for the divine right of kings. At no point have we heard a renunciation of his past position; nor, for that matter, has an explanation of his evolution been forthcoming. Instead, the president has engaged in what, ultimately, is a semantic game, holding theoretically to the “self defense” exception of which he spoke so passionately in 2007, but construing it so broadly as to render it operationally meaningless. The effect of this has been a volte-face, for if, in practice, “self-defense” can be held to justify each and every form of unilateral preemption, there is nothing that a president is not able to do without Congress. Article I, Section 8 of the Constitution of the United States explicitly reserves to the legislative branch the power “to declare war” — a reservation that the document’s primary author, James Madison, considered to be of utmost importance. “In no part of the constitution,” Madison explained in a 1793 letter, “is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.” Nowhere in the missive, it must be noted, did Madison outline an exception for those executives that display a talent for parsing language, and nor did he include a caveat that this rule was to be considered inoperative should the president elect to play down the language of “war” or to refuse to accept that an armed encounter met the threshold. As George Will noted trenchantly last week, “The Constitution’s text, illuminated by the ratification debates, surely does not empower presidents to wage wars, preventive as well as preemptive, against any nation or other entity whenever he thinks doing so might enhance national security.” Is this principle to be dissolved by linguistic sleight of hand?