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INTRODUCTION
Rethinking Presidential Power
Although the Constitution is mentioned often, this book is not intended as a treatise in constitutional law. Instead, it offers new ways to think about an increasingly pressing problem: the erosion of presidential accountability for the use of power. In the process it re-evaluates the workings of the separation of powers and of checks and balances and proposes concrete remedial action. “How to fix it” is not the usual focus of books in the broad subject area of presidential power, but it is the focus here. Given this fact, the book is addressed not just to political scientists and constitutional scholars but to any citizen—whether expert or novice—seriously concerned with the growing imbalance in the separation of powers.
Many now believe that the enlargement of the presidency relative to Congress is irreversible, particularly on matters touching the main concern in this book, which is the war power (Deering, 2005). That pessimistic view is contested here. Without question, new proposals like those introduced below and described in detail in Chapters 5 and 6 are always politically difficult and must overcome other forms of inertia as well. But the specific changes proposed here require no constitutional adjustments. Although they are departures from the familiar they are modest in comparison to the scale of the problem they address. It would be challenging but not impossible to bring them about. They flow directly and logically from the problem diagnosis that generated them. Suggestions for change can be useful thought experiments even if they are not implemented, and that is certainly true of the proposals offered here. But these changes have the potential to do more than just bring intellectual closure to an academic problem diagnosis. Effectively implemented, they can create movement toward rebalancing the war poser.1
Political thinkers as diverse as John Locke and Abraham Lincoln usefully remind us of what has been missed due to lack of reflection on the corrective potentials of our separation of powers design. Unfortunately, these still useful reminders are overlooked by the very people who have power to hold presidents accountable: those who “staff” a group of governmental and nongovernmental institutions I call the presidential accountability system, or PAS (defined and discussed below, again in Chapter 2 and in still greater detail in the third chapter). As a result, we have failed to keep the presidency in check at key moments—particularly before the initiation by presidents of major wars that were optional rather than necessary.
The problem has its origins in the nature of presidential responsibility. Because events have forced presidents since George Washington to manage crises and solve unexpected problems, presidential power has grown beyond the intent of the framers. The reason is that new assertions of power have been treated as permanently enlarging precedents. This practice has driven executive power, ratchet-like, in but one direction: upward—to a point where presidents now feel entitled to decide for themselves whether and when to use military power. To be sure, the presidency must be “sufficient unto any need,” if it is to meet its unique responsibility for protecting the American political system. But presidential power has expanded beyond mere sufficiency to a point that requires rethinking with the intent to calibrate. That is the purpose of this book.
Calibration
To “calibrate” something is to “gauge its deviation from a standard in order to ascertain the proper correction factors.” This may seem unrealistically precise, too “scientific” as an approach to regulating something as emotionally and politically charged as the use of presidential power in real or imagined crises. Yet clear guidance is both needed and available. The standard used here for pinpointing the proper scope of presidential power was suggested by President Lincoln. It involves a dynamic relationship between the idea of “necessity” for presidential action in the face of threat and the constraints of the Constitution. The constitutional limits on presidential discretion may be set aside when emergencies make it necessary. But power so expanded should not be allowed to become permanent through precedent. It must instead “snap back,” like a stretched rubber band, to its original constitutional shape once the crisis has passed. This, in Lincoln’s view, is the essential correction factor because it preserves the constitutional order. It is the standard that underlies the argument to follow.
The Plan of the Book
The first step toward calibration is to identify and describe the two main sources of the current power imbalance. They are:
• incoherent standards and practices for holding presidents to account (Chapter 2)
• an unconscious, uncoordinated presidential accountability system (Chapter 3).
Incoherent standards are the inevitable result of an unconscious, unthinking, uncoordinated PAS. They join to impose great costs on the American political system. The most important of these costs are unnecessary wars. Chapter 4 offers detailed examples of three such wars—each a presidential war of choice. As remedies, I first propose a new “think tank” designed to bring the PAS to conscious self-awareness (Chapter 5) and then a new congressional procedure modeled on the impeachment process; the policy trial, aimed at making sure that elective wars are in the national interest before Congress lets them happen (Chapter 6). Brief previews of Chapters 2 through 6 follow.
Chapter 2: Incoherent Presidential Accountability
Presidential accountability standards and practices are currently incoherent because the constraints on presidential power are subject to dramatic change by precedent-setting presidential action, as illustrated in this chapter. This makes such standards “crisis-and-president” driven rather than “Constitution” driven. That in turn makes them unsteady and haphazard rather than intentional and stable—the definition of “incoherent” used here. Coherence, on the other hand, requires a way to deal with emergencies that does not create precedent. This can only be achieved through deliberately orchestrated enforcement of the Lincoln standard and related precepts described here. Enforcement is the responsibility of the PAS which includes three official (Congress, Court, and presidential elections) and four unofficial (media, political opposition, public opinion outside elections, and the anticipated judgment of history) “agents of accountability.” These agents already comprise a “system” because each may influence presidential incentives and behavior at any given time, either individually or collectively and whether knowingly or not. They do so by creating a mix of positive and negative incentives for presidents. President Truman’s decision to deploy troops to Korea without congressional assent—the most significant war powers expansion in American history—shows why unconscious, unintentional PAS influence is dangerous. To make such influence conscious and intentional is the only way to achieve coherent performance guidelines. The chapter suggests necessary steps and identifies the American people, sovereign democratic overseers of presidents, as both the linchpin and the weakest link of the PAS. Remedying this weakness is among the most pressing reasons for the proposal to bring the now unconscious PAS to a state of self-awareness. But as the next chapter shows, it is not the only reason.
Chapter 3: The Unconscious Presidential Accountability System
Here we examine, in “agent-by-agent” detail, the unique accountability contributions as well as the dysfunctions and limitations of each (for example the Congress, most powerful of the agents, has largely abandoned vigorous war power oversight). The chapter shows that the various agents collectively possess the tools required for effective oversight but that the uneven and unsynchronized oversight typical of an unconscious and unevenly motivated PAS sharply curtails effectiveness. There are two problems in particular. First, the PAS does not now think of itself as a “system.” Instead each agent is primarily driven by its own unique incentives and priorities. Second (as shown by the Truman example in Chapter 2) the agents are not always aware of the signals they send presidents; and when they are aware they rarely try to orchestrate the impact on the president. In the absence of cooperative interaction accountability lacunae inevitably emerge.
Chapter 4: Presidential Wars of Choice
Chapter 4 uses case studies of Korea, Vietnam, and Iraq to show the detailed consequences of the most damaging byproduct of the unconscious PAS: congressional abdication of the war power to the president. Due to the elimination of serious president–Congress consultation stemming from the Korean War precedent, Congress now routinely defers to presidents who insist on the need for military action. What is more, the presidents in the cases reviewed in this chapter initiated wars despite lack of clear provocation (e.g., an attack on the United States) and without a vision of the objective backed by well-specified operational plans. In each of these cases, there was a notable absence of a rigorous vetting process before the choice for war was approved by the president. Congress offered little serious oversight until long after the wars were initiated. It was stirred to do so by shifts in public opinion brought on by mounting costs in American blood and treasure made intolerable by the lack of military success. This has become a tradition of failure, in part attributable to the fact that presidents are left unsupervised at the moment of choice. This is the main reason for the policy trial proposal.
Chapter 5: Bringing the PAS to Life: The Presidential Accountability Project
Presidential wars of choice show that the constitutional and political systems as they currently operate do not effectively hold presidents to account. That is why there is need for a conscious PAS in which both its formal and informal components are sensitive to the need for selective and timely coordination to prevent unnecessary power expansions. To make this possible, an organization must be established first to “market” the PAS concept to PAS members and then to create the necessary coordination mechanisms and oversight expertise.
This is a far-reaching proposal. The aim is to create a new “consultancy” think tank in Washington, DC designed to help PAS members achieve something not previously sought: a level of integrated presidential oversight equal to the demands of calibrating presidential power. Full specification of how this think tank would operate is essential to the actual implementation plan. Many (though not all) of these details appear in Chapter 5—enough to clearly illuminate what real change would require at the level of agent practice. The proposed organization’s major divisions will be a Policy Board and a Research Group. The Policy Board will work to create agent acceptance of the PAS idea and promote communication and coordination among agents. It will bring the products of the research staff to multi-agent discussions of foreseeable accountability issues. And it will maintain ongoing discussion and refinement of the PAS mission and objectives (e.g., balancing presidential encouragement and restraint, promoting the no-precedent “necessity” doctrine) in light of new circumstances. The mission of the Research Group is to apply specialized expertise to various projects identified by the Board. For example, it will assess historically important (e.g., Korea) and more recent accountability cases like the 1990 Gulf War, President Clinton’s 1999 Kosovo air strikes, and President Obama’s use of drones (unmanned strike aircraft) in search of lessons and strategies for improved oversight. It will also address current issues as they unfold (e.g., President Obama’s recent Libyan venture).
Chapter 6: Prospective Accountability for Wars of Choice: Policy Trials
Policy trials illustrate the kind of proposal the Research Group might develop. Such trials would use an established constitutional procedure—impeachment—to put a proposed initiation or escalation of a war (not the president) on trial in Congress before that body approved or disapproved of discretionary military action. The purpose of policy trials is to reduce the likelihood of future poorly conceived military ventures like the Korean, Vietnam, and Iraq wars. They would accomplish this purpose in part by replacing provocative presidential rhetoric aimed at inflaming public opinion with an orderly televised debate on the merits of the president’s war proposal. After exposure to such a debate the mass public audience would be focused and well-briefed enough to give members of Congress something they now lack: the political cover needed to take the risk (when merited) of opposing a president bent on war. Finally policy trials are designed to allow the president to make his/her very best case while requiring that it be done in a disciplined way in give-and-take with equally disciplined critics. To illustrate how policy trials would work, President Obama’s decision to escalate the war in Afghanistan is revisited and subjected to a fictional policy trial.
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INCOHERENT PRESIDENTIAL ACCOUNTABILITY
We begin with a look at the workings of a disparate collection of actors that share an important distinction: they all contribute in one way or another to how effectively presidents can be held accountable for their performance in office.
I refer to them as the presidential accountability system (PAS). The PAS comprises familiar constitutional and nongovernmental entities, which include presidential elections, Congress, and the Supreme Court within the constitutional structure; and public opinion, news media, the political opposition, and the anticipated judgment of history outside it. What do these varied and dissimilar “agents of accountability” have in common? This: whether consciously or deliberately or not, each can influence presidential incentives and behavior.1
To my knowledge, no one else has suggested that the institutions and entities that make up the PAS might usefully be conceived of as a group whose members jointly create a mix of incentives for presidents. Yet thinking of them as an “assembly” that constitutes a “system” for holding presidents to account is useful because it brings to mind possibilities not usually considered for addressing presidential accountability problems, particularly the unnecessary expansion of presidential power. Because I want to make clear in the first few pages exactly why this topic is important, we start with a brief look at one classic case: President Harry S. Truman’s unilateral 1950 decision to send U.S. troops to Korea.
Truman’s Decision
The details of U.S. involvement in the Korean War are presented in Chapter 4. In focus here is a much narrower look at why Harry Truman, a president who was blindsided by the surprise North Korean invasion of the South, so quickly came to believe it was acceptable to respond by sending U.S. troops to repel the invasion without the formal approval of Congress. Truman’s is a cautionary tale because his decision was in large part a consequence of incentives unwittingly created for him by the expectations of human actors within the various agents that make up the PAS. These actors were themselves blindsided by the invasion, and were simply not thinking about how their own reactions might be interpreted by the president or of the net effect on Truman and through him the constitutional balance of power that their unpremeditated reactions might have.
Three of the most influential signals came from the political opposition in and outside Congress, from public opinion, and from the news media. Truman considered involving the Congress. But he soon concluded that it would be better to do what he thought was right quickly and on his own. Why? The first reason was because he knew that neither public opinion nor the news media would oppose bold presidential action. The view was widespread at the time that the invasion of South Korea was a Cold War Soviet ploy to test the United States, and that the United States had to respond immediately (it would later become clear that neither assumption was accurate). The second reason Truman avoided Congress was because he knew a congressional forum to discuss Korea, even though it would surely approve U.S. military action in Korea, was also sure to feature Republican attacks blaming the president for the recent Soviet development of the A-Bomb and the fall of China to the communists. A bold presidential move in Korea, on the other hand, would at least temporarily silence Truman’s partisan critics. Third, avoiding Congress was easy because, initially at least, being ignored was acceptable to a majority in that body. Members of the House of Representatives actually s...
