Toward a Discretionary Post-9/11 Public Policy that Remains Constitutional: Lessons from the Civil War

Benjamin A. Kleinerman

January 1, 2006

During the course of the Civil War, a fascinating yet rarely-studied debate developed within both houses of Congress at the time concerning the proper institutional location for what many of the congressmen called the "war power." That is, insofar as certain powers had become necessary that had not been contemplated during the peace that preceded the war, the question became which branch, the executive or the legislative, properly possesses these powers. On the one hand, various members of Congress, mostly so-called Radical Republicans, asserted that all necessary powers of war resided in Congress. Representative of this argument was Senator Fessenden’s claim that: "There is no limit on the power of Congress; but it is invested with the absolute power of war" or Senator Sumner’s claim: "I claim for Congress all that belongs to any government in the exercise of the right of war." In the lower house, Representative Thaddeaus Stevens goes so far as to claim "the tremendous power of dictatorship" for Congress. Relationally, they conceived the executive merely as the "instrument of Congress under the Constitution of the United States."

Senator Orville Browning, one of Lincoln’s closest confidantes in Congress at the time, responds to such claims in an extended speech in which he argues, by contrast, that "the war-executing powers are vested in the President" and, more generally, "in the executive department of the Government." Lincoln himself is reported to have said to Senator Chandler: "I conceive that I may in an emergency do things on military grounds which cannot be done constitutionally by Congress."

Before we decry such claims as signs of Lincoln’s dictatorial ambitions and as the surest reasons why we should not allow our current administration, if we want their power to be safe, to justify their recent actions by citing Lincoln, we should reconsider why it was that both Browning and Lincoln thought these war powers should constitutionally reside in the executive branch; or to be more precise (and as I’ll show at the end, this precision is all important), why such powers should come into existence as the executive’s when exigent circumstances create their necessity. Browning, whose speech develops this argument much more than Lincoln ever does on his own, claims such powers properly belong to the executive for essentially three reasons. First, and perhaps most importantly, the assertions being made by his opposition create "as broad and deep a foundation for absolute despotism as ever was laid." It creates such a foundation because it would mean that Congress can determine that it is no longer limited by the powers granted to it by the Constitution; in other words, it now can legislate entirely outside the Constitution’s limits thus effectively eviscerating its legislative place within a limited government. In this case, the debate centers around whether Congress has the power to pass a bill "to confiscate the property and free the slaves of rebels." In other words, because it would involve taking away property arbitrarily and freeing the slaves in the states (both of which there had been very little question about the unconstitutionality of), the bill invites the question whether Congress has the power to pass legislation during a war that could never have been considered constitutional during peace? Browning claims that such would give to Congress powers "without limitation, or restraint of any kind or character upon its power."

By contrast, and now here’s the second reason Browning thinks this power properly belongs to the executive, "If these extreme war powers be prostituted to the purposes of tyranny and oppression by the President… when peace returns he is answerable to the civil power for that abuse." And, in quoting with approval from Luther v. Borden, Browning cites this statement: "if the President, in exercising this power, shall fall into error, or invade the rights of the people of the State, it would be in the power of Congress to apply the proper remedy." In other words, where Congress does not answer to anyone for a political misuse of its power, the President answers either to the civil power, whatever Browning means by that, or to Congress—perhaps Browning contemplates the impeachment mechanism here. Thus, it’s safer, Browning argues, for the President to act and Congress to hold him responsible than for Congress to act, and for no one to be capable of holding it responsible. One might, of course, here say that the people would hold Congress responsible but Browning responds to this claiming that, "especially in a time of domestic war," excited majorities would be especially likely to oppression and tyranny of minorities. Thus, the people are not a reliable safeguard against congressional oppression (I have developed further the problem of the people’s constitutionality in a recently published paper on Lincoln in Perspectives on Politics).

And, finally, Browning shows that presidential war-power is much more "effectual" and, at the same time, safer than congressional war power. It is more effectual because it can react in an immediate manner, as is required during war, to respond to those unforeseen exigencies that require immediate reaction. And precisely because of this same discretionary ability to act, it is much easier for it to exercise "no more force… than is necessary to accomplish the object." In other words, it can act as the necessary extra-legal agent of force whose actions seek either the preservation or restoration of the rule of law, and whose activities are monitored by the agent of the law, Congress. Thus, through the executive, the Constitution can possess the discretionary power necessary without such power perverting the legal order that, as such, cannot otherwise accommodate discretionary, and thus potentially arbitrary, power. On the other hand, if Congress, as the agent of the law, attempts to exercise such powers, it perverts the law itself because Congress can only exercise such discretion through legislation and discretionary legislation will necessarily give government much more power than should be countenanced within a limited constitutional government.

I promised with my title that this history of a debate that occurs during the Civil War could be used as a lesson in our present, post-9/11 and now post-eavesdropping revelations. In the first place, Browning’s arguments to Congress show precisely why, from the perspective both of national security, on the one hand, and the constitutional order, on the other, we should be wary of legislation such as both the Patriot Act and FISA. In both cases, the spirit of such is to legislate the discretionary powers thought necessary to contend with forces that threaten our security. In doing so, we attempt to legislate what is outside the realm of legislation (in the television show 24, all of those things Jack Bauer does might be necessary but they could never be legal). From the perspective of national security, this means that the executive branch might be legally prevented from taking action that would be necessary. And, from the perspective of our constitutional order, it means that the executive might be empowered to take actions that are not necessary. The attempt to legislate necessity leads to the evisceration of constitutionalism. So, for instance in the Patriot Act, because the President wants the discretion to be able to monitor some emails and some library records, he gives himself the legal power to monitor all emails and all library records. In this case, we would be far better off to let him understand his power as discretionary, with Congress of course watching, than to give him this legal right. Insofar as Lincoln’s and Browning’s arguments were the genesis of what is often referred to as the "presidential war-power," it is important to see that, at its genesis, this argument was an attempt to maintain limited government. In other words, rather than merely seeing discretionary power as containing the potential for unlimited government (which if left unwatched it most certainly does), we should also see that discretionary power can paradoxically limit the powers of government precisely because it remains discretionary.

Second, we should insist as Lincoln emphasizes throughout the Civil War that the executive’s powers exist only insofar as they are necessary. In other words, precisely because they are outside the bounds of legality, we should beware of statements like those that have been recently issued by the Bush administration asserting an inherent, i.e. legal, right of presidential power to do whatever it thinks necessary for the public good. Its powers only exist when they become necessary for the preservation of the Constitution and only insofar as they are necessary for such preservation. What is this distinction and why does it matter? On the one hand, the Bush administration’s recent statements imply that presidents cannot be held responsible for those actions they take to prosecute the "war on terror" because they arise from their inherent powers in the Constitution; their legal responsibility is only to show that they thought such powers necessary. On the other hand, if the President’s powers exist only insofar as they are necessary, Congress, while it does not have the power to authorize such actions (this would bring us back into the constitutional conundrum Browning shows) it does have the legal right to hold the President responsible for discretionary powers it thinks were improperly exercised. In other words, while discretionary powers when they become necessary fall to the president, Congress serves as the watchdog of the reality of that all-critical necessity. Given the immensity of the executive bureaucracy, understanding executive powers as existent only when they are necessary also ensures against the abuse that a claim of inherent power and its implicit lack of responsibility inevitably invites. Every member of the executive bureaucracy should be aware that they, if questioned, must be able to show the necessity of their discretionary actions rather than thinking such actions inherent in their powers.

Finally, the Civil War teaches us by contrast. Lincoln continually insists on the constitutional safety of his extraordinary powers because of the extraordinary nature of the situation in which they were assumed. To the extent that we are in a war against terror in the present, it is a war against an asymmetric enemy who possesses an asymmetric ability to inflict harm upon us. If we attempt to retain the extraordinary/ordinary distinction so essential to Lincoln’s assumption of power, it is difficult to see when an ordinary situation would return. Almost by definition, the threat from asymmetric warfare remains a permanent possibility. Because the extraordinary/ordinary distinction cannot be applied in the present, we should not use it to justify a discretionary public policy that seeks extraordinary powers. Instead, we must seek a constitutional framework within the new ordinary politics, characterized by a permanent threat from asymmetric warfare, that preserves the executive discretionary powers necessary to secure us from such threats without either giving up too many rights for the sake of such security or allowing the discretionary activity to descend into a legal right to take any actions the president chooses. And I submit that we can find such a constitutional framework precisely by thinking of our Constitution as permitting a discretionary executive branch, watched over by a Congress that asks the question not whether the President has violated the law but whether the President has acted as necessity demands and no further. Such a framework empowers the President to take actions necessary for our preservation while preventing the abuse of such powers. It also prevents the legalization of such powers, a legalization with which we would not be comfortable were it not for the threat to our security. It is within this framework that we might say that both the President and his opposition are wrong in the present controversy regarding the NSA eavesdropping. The President is wrong for claiming both an inherent right to such powers and for bristling at the questioning of such powers by Congress and the public. His opposition may be wrong insofar as they think he does not possess these "extra-legal" powers inasmuch as they are necessary to accomplish the object: the security of our constitutional government.

Benjamin A. Kleinerman is an assistant professor in the Department of
International Studies at the Virginia Military Institute.