On the Politics of War Powers

This is an enlightening book about a relevant topic that I knew little about. Burns’s book can essentially be broken down into two parts. The first part is on theory, where she discusses Montesquieu’s ideas regarding separation of powers, the Articles of Confederation as producing a “failed” or “failing” state, and the development of the United States Constitution, giving power over war to both the legislature (“power of the purse,” voting for declaration of war, etc.) and the executive (above all, as Commander in Chief). In the second part, Burns discusses the gradual evolution of the way that various presidents interpreted and used war powers, ultimately giving them greater power to the point that current presidents seem to have nearly unlimited executive prerogative.

Although early presidents did have a much more limited view of presidential power than they do today, they still were willing to maneuver within and beyond the Constitution. Washington was willing to take greater control of foreign policy while Congress was not in session, which Burns refers to as “prelegal,” and Jefferson purchased French Louisiana through an “extralegal” manner—essentially, these powers are not defined anywhere, so they exist outside of the constitutional order. Other presidents, like Abraham Lincoln, argued that the scope of the law expanded in times of crisis and, therefore, he believed he never worked outside of it. Yet, in spite of these already-large powers, Burns argues that executive power began to expand much more rapidly under Franklin Delano Roosevelt and Harry Truman, who both relied on White House lawyers to develop legal justifications for expansive policy. On this, Truman argued that he had the power to deploy American soldiers wherever he wanted for any purpose. Although Congress did limit some executive power under the 1973 War Powers Act, the strengths of the executive seemed to reach their apex under Nixon (who claimed that “anything illegal a president does is not illegal”) and Reagan (who justified Iran-Contra on these terms).

Burns finds that the trajectory of American history ostensibly should have seen Congress limit presidential powers in the 1990s—the United States’s greatest threat collapsed in 1992—but the lack of large-scale conflict did not seem to be a real issue (so-called “small wars” did not really feature in their calculation) and it didn’t seem likely that executive power would expand any further. Until, of course, 9/11, after which the Bush administration reached Nixon-Reagan levels of strength. While Obama was expected to limit these powers, he maintained them in his “limited wars” against Terror. The most recent president at the time of this book’s writing, Donald Trump, does not appear much here at all, but there is a message about executive prerogative outside of “war powers” that seems relevant, especially given that former President Trump’s lawyers have been continuously fighting off legal challenges under the rubric of “presidential prerogative” over the past few years.

In spite of Burns’s emphasis on the position of the presidency, she finds that Congress is just as—if not more—at fault as the executive branch. To her, Congress has a moral and legal responsibility to defend its own powers, but it acquiesces whenever the executive attempts to move forward. I think a lot of this is due to fears about appearing “weak” or because legislators are afraid that they will be seen as “not doing enough” against threats overseas. This is, of course, nonsense, and the fear of the public’s response to limiting the presidency is damaging to the entire American constitutional order.

While I learned a lot from this book, the early emphasis on theory made it seem weaker to me—it would have been better to offer a deeper dive into specific cases of expansion/limitation of executive power than to outline what exactly the Founders had intended. Given that we are far beyond that point, the discussion almost seems irrelevant.