From their study of history, the framers of the U.S. Constitution understood that the decision to initiate military actions against foreign nations should not be left to single executives. They knew that war is the nurse of executive aggrandizement and a threat to individual liberty. As John Jay said in his Federalist No. 4 essay, single executives “will often make war when their nations are to get nothing by it,” reflecting their thirst for military and personal glory at cost to the country and its citizens. Was Jay speaking purely of attitudes of the 18th century, with no relevance to our century? He was talking about fundamental human nature. Are we more confident today to accept unilateral decisions by single executive to take the country to war?
From 1789 to 1950, presidents who sought to use military force against another nation came to Congress either for a formal declaration or specific statutory authority. In 1950, President Harry Truman became the first president to go to war (against North Korea) without receiving authorization from Congress. This unconstitutional war resulted in great damage to his presidency and his party and led to many deaths and casualties of Americans, Koreans, and Chinese.
President Lyndon Johnson did receive authority from Congress for military action in Vietnam, but lies and deceptions by executive officials led to costly escalation of the war and severe harm to Johnson, his party, and the many killed in Southeast Asia. The Iran-Contra scandal during the administration of Ronald Reagan nearly led to his impeachment, revealing deliberate decisions by executive officials to secretly violate statutory policy.
The cost to the nation from presidential errors, misjudgments, and deceptions has been heavy, both in material terms and the constitutional values of self-government and checks and balances. The examples above are not isolated illustrations; they form a pattern that carries forth from one post-World War II president to the next and all the way through the current administration. Based on this record, on what rational ground would we (and the Supreme Court) express confidence in vesting largely unchecked power in the president, whether in external affairs or domestic policy? In a recent study, Untrodden Ground: How Presidents Interpret the Constitution, Harold Bruff notes: “Even in ordinary times, our system has recently become similar enough to a permanent constitutional dictatorship to give deep pause.”
Initially, the Supreme Court interpreted constitutional disputes without favoring presidential power, either in domestic affairs or foreign policy. However, starting with United States v. Curtiss-Wright Export Corp. (1936), the Court used its decisions to magnify presidential authority and push it beyond constitutional grounds. Remarkably, as I will explain further in my lecture, the Court acted on errors and misconceptions that dramatically shifted the power of external affairs to the president — especially with what is called the “sole organ” doctrine.
Decisions by the Court in the Japanese-American cases in 1943 and 1944 reveal Justices unwilling to exercise their independent authority to check executive assertions — assertions shown later to be false. Similarly, the Court in 1953 supported the executive branch when it invoked what is called the “state secrets privilege” to deny three widows and their attorneys access to the official accident report to determine whether the B-29 that exploded and killed their husbands should have been allowed to fly. The district court and the Third Circuit insisted that the government give the report to the district judge to be read in his chambers. The Supreme Court, without even looking at the report, accepted the government’s assertion that it contained state secrets. When the report was declassified four decades, it was evident that it contained no state secrets but abundant evidence that the plane was so defective it should never have flown.
Following 9/11, both the Bush and Obama administrations relied heavily on the state secrets privilege to deny private parties access to documents. These and other issues will be explored in my talk.
About the Author
Louis Fisher is Scholar in Residence at the Constitution Project and a visiting scholar with the William and Mary Law School. From 1970 to 2010, he served as Senior Specialist in Separation of Powers at the Congressional Research Service and Specialist in Constitutional Law at the Law Library. His books include The Law of the Executive Branch: Presidential Power (2014). Many of his articles and congressional testimony are available on his personal website.
