by H. Jefferson Powell. Durham, NC: Carolina Academic Press, 2014. 250pp. Cloth $35.00. ISBN: 978-1-61163-405-1.
Reviewed by Bruce E. Altschuler, Professor Emeritus of Political Science, SUNY Oswego. Email: bruce.altschuler [at] oswego.edu.
In Federalist 69, Alexander Hamilton minimized the President's commander-in-chief power as "nothing more than the supreme command and direction of the military and naval forces as first General and Admiral," compared to the British King who had the additional powers of declaring war and raising and regulating the armed forces, which the American Constitution granted to Congress. Arguing that the President's power was so limited as to present little danger of abuse was an effective rebuttal to opponents of ratifying the Constitution. H. Jefferson Powell cites the quote as evidence of the impossibility of using the words of the founders to interpret specific constitutional clauses, describing it as merely a rephrasing of a provision by a known supporter of a strong executive branch. Whatever the intentions of the founders, it is clear that as American military power has grown, so too has the President's. The long standing debate over its extent has become even more fierce since the September 11, 2001 attacks.
THE PRESIDENT AS COMMANDER IN CHIEF is a closely reasoned and significant contribution to this debate. Its main argument is that on national security matters, "the carefully balanced power structure created by the Constitution" must be maintained (p.4). Government lawyers should not provide advice that gives either the President or Congress a blank check nor should they leave it to the courts to provide the appropriate balance. For Powell, Justice Robert Jackson's concurring opinion in YOUNGSTOWN SHEET & TUBE v. SAWYER (1952), better known as the Steel Seizure Case, should be the basis for making executive decisions that are consistent with constitutional principles. What makes Powell's argument distinctive is that rather than focusing on the specifics of Jackson's three part framework, as most commentators have done, he seeks to interpret the opinion as a larger constitutional vision, noting that the tripartite typology takes up only about three of the opinion's twenty-two pages. The key question for him is "how can EXECUTIVE BRANCH OFFICIALS employ the law conscientiously in making decisions about the safety of the public" (p.73)?
Powell begins with a detailed rebuttal to the Bush Administration's Office of Legal Counsel's 2002 Interrogation Memo which he terms "faux law," meaning the appearance of limits on the executive while actually justifying any possible presidential decision (p.50). Rather than separating powers in a zero sum game, the Constitution requires cooperation between the President and Congress on national security matters. Administrations should use law to [*211] pursue policies they advocate, but they must do so in good faith. Executive officials must employ legal tools to formulate and pursue their policies while observing the limits imposed by law.
The dilemma Jackson presents is that even when a judge or presidential adviser interprets the law in good faith, in national security matters, that law is often sparse or lacking in clear answers. To solve this problem, the Constitution must be looked at not as a series of clauses, but rather as a larger structure of government. Despite separation of powers, the executive and legislative branches must collaborate for decisions to be constitutionally legitimate. In order to avoid having one branch both make and execute policy, the presidency is subordinated to the limits and definitions of its powers approved by Congress. Otherwise, the United States would have a government of men and women, not laws. This logically leads to Jackson's tripartite framework.
Powell's most surprising argument is that William Rehnquist adopted Jackson's basic vision in two opinions, the first in a memo while serving in the Justice Department; the other as a Supreme Court Justice in DAMES & MOORE v. REGAN (1981). In his confirmation hearings, John Roberts also praised the latter for similar reasons. Unlike the Interrogation Memo, Rehnquist's argument for the constitutionality of President Nixon's 1970 military incursion into Cambodia rejected broad claims of presidential authority in favor of a detailed analysis of the main issues involved, thus limiting his claims of presidential power. The memo neither considered the then- secret bombing of Cambodia nor did it create a precedent for further expansion of presidential power.
The DAMES & MOORE opinion both used Jackson's tripartite framework and followed his larger constitutional vision. Although it has been criticized as loosening Jackson's limits on presidential power, more important for Powell, who disagrees, is the rejection of "any claim of undefined or indeterminate executive power" (p.153). His evidence is Rehnquist's rejection of administration arguments that no statutory authorization was needed to settle private claims against Iran. Instead, the administration's action was upheld because Congress acquiesced in the executive's actions.
The praise of Rehnquist is the weakest part of the book. Even though Justice Rehnquist conceded in his opinion that the relevant law did not authorize the President's suspension of legal claims (in fact, its legislative history makes it clear that Congress was not authorizing the President to take title to foreign property), he argued that a variety of legislation implicitly approved the settlement of such claims by executive agreement, despite the fact that executive agreements are never submitted for congressional approval. Since it could be argued that Congress' failure to pass legislation disapproving Truman's seizure of the steel mills was similar acquiescence by silence, Sarah Cleveland (2005: 1138) believes that "Jackson's analysis was badly abused." If plugging events into the three part framework and rejecting extreme claims of unilateral presidential power are all that is required to follow Jackson's constitutional vision, then it is setting a rather low bar. [*212]
More convincing is Powell's analysis of the difficult constitutional question of how far the commander-in-chief power allows the president to go in ordering the military into combat without either congressional authorization or an attack on the United States. Of course, when such action is legislatively authorized, there is no constitutional problem, but when it is not, two of Jackson's three possible situations occur. Powell believes that Congress can prohibit the President from initiating hostilities in a specific situation. While this seems legally correct, it is surprising that he does not discuss the political unlikelihood of such a situation. The President's veto power would require a virtually impossible supermajority to enact such a prohibition, a point Powell makes later in his discussion of the 1973 War Powers Act's provision allowing Congress to reverse presidential initiation of hostilities without risking such a veto.
The second possible situation is more interesting. Without legislative action, Powell argues that the commander-in-chief power allows the President to begin hostilities, but only to the point of "war in a constitutional sense" (p.221), referring to the conflict's magnitude for which he supplies guidelines, particularly estimates of casualties that would result. Because this requires a good faith judgment, it is necessarily vague. An analysis of specific past military actions to judge which met these standards would strengthen Powell's point.
The book ends with a short discussion of the War Powers Act and a brief conclusion. Given the closely reasoned analysis that preceded it, I wish these sections had been expanded. Because, as Powell points out, Jackson wrote an opinion rather than a treatise, that opinion does not fully elaborate the scope of the commander-in-chief power. Powell's final chapter does provide some additional details, but a more thorough summary of what Powell believes are the main tenets of Jackson's constitutional vision, other than a rejection of extreme claims of unilateral authority by any branch and a good faith analysis by those who make national security decisions would be a welcome addition to the book's conclusions. It is human nature to think that we are acting in good faith even when self-interest unconsciously colors our analysis. As Powell observes, Democrats and Republicans tend to be most critical of executive authority when the opposing party is in power.
My desire to see more analysis is evidence of the strength of Powell's reasoning even when the reader may disagree. While probably too difficult for most undergraduates, THE PRESIDENT AS COMMANDER IN CHIEF is recommended for graduate and law students, scholars and, I hope, those who advise or aspire to advise presidents on national security matters, all of whom will find much of interest in this monograph.
Cleveland, Sarah. 2005. "HAMDI Meets YOUNGSTOWN: Justice Jackson’s Wartime Security Jurisprudence and the Detention of Enemy Combatants," 68 ALBANY LAW REVIEW 1127. [*213]
DAMES & MOORE v. REGAN, 453 U.S. 654 (1981).
YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579 (1952).
Copyright 2014 by the Author, Bruce E. Altschuler