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Bill Clinton, the Constitution, and the War Power david gray adler President Bill Clinton’s aggrandizement of the war power imitated the pattern of usurpation that characterized and, in important ways, defined the terms of several of his predecessors, and it rendered the War Clause, as some of us had concluded, a “dead letter.”1 That measured judgment stands. Nevertheless, the passage of time and President George W. Bush’s newly minted and extravagant claims to executive authority encourage a tempered refinement. In light of President Bush’s claim of authority to launch preventive war, which has taken executive assertions of power to new heights, we may today say of the War Clause that is more dead under Bush than it was under Clinton—which, of course, is akin to saying that the lady is more pregnant today than she was yesterday.2 Apart from the occasional inutility of the language, not to mention the occasional inelegance of a description, the fact is that the War Clause of the Constitution, which grants to Congress the sole and exclusive authority to authorize military hostilities on behalf of the American people, was in greater jeopardy under President Bush than it was under President Clinton. But practices tend to build bridges, and President Clinton’s usurpation of the war power aided in the construction of a bridge to the audacious twentyfirst -century claims of executive power adduced by President Bush. Despite appearances, this paper is not an examination of the Bush theory of the war power (although I shall have occasion later to comment on it) but a paper on President Clinton’s understanding of a presidential power to initiate military hostilities.3 Bill Clinton inherited the “Imperial Presidency” when he assumed the office .4 It was imperial when he came to it and imperial when he left it. From a constitutional perspective, President Clinton made no effort to curtail executive aggrandizement of power or to stem the tide of legislative abdication, nor did he seek to restore congressional authority. Indeed, Clinton, like his immediate predecessors, chose to ride the “tendencies of power” rather than to “resist them.”5 He embraced, and in some respects extended, the doctrinal teachings, capacious claims, and unilateral actions that have come to epitomize what has 108 • david gray adler been variously characterized as “presidential government,” the “plebiscitary presidency” and the “textbook presidency.”6 Clinton followed a well-worn path of executive claims to a unilateral war-making power and advanced a broad theory of presidential power in war and foreign affairs.7 President Clinton’s theory of the war power was grounded on the claim of executive authority to initiate military hostilities. In the view of the Clinton administration, the framers of the Constitution exalted executive control over foreign affairs. As the “sole organ” of American foreign policy, the president possesses the authority to define, manage, and conduct the nation’s foreign affairs. He alone is responsible for the nation’s security. Attempts by Congress to restrict the president’s war power in advance violate his constitutional powers . Moreover, he is commander in chief of the armed forces, a post that carries with it the authority to do anything, anywhere, that can be accomplished with military force, including the initiation of war. It falls to the president alone to assess threats to the nation’s security, and he alone may decide when an act by a foreign nation warrants the use of military force. The president, finally, has the sole power to commit US troops to the military campaigns of international organizations. Any attempt by the courts to restrain presidential action in this realm would constitute an unwelcome and unprecedented interference in executive matters and undermine the conduct of foreign affairs. The Constitutional Design for War Making President Clinton’s theory of executive war-making authority obscured the architectural blueprint of the framers, for whom the concept of unilateral presidential power in foreign affairs was intolerable. The framers’ decision to vest the bulk of foreign policy powers in Congress represented a radical departure from the practice in England, which, like other nations, concentrated virtually unfettered authority in the hands of the executive. Placed in its historical context, the Constitutional Convention’s decision to break from the prevailing foreign policy–making practices of other governments at the time was simply stunning. It is comprehensible only in terms of the framers’ intellectual orientation , their understanding of history, and their own practical experiences. The framers’ fear of the abuse of...

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