By Gray Farris

A title of position is just that — a title. Sometimes, that title is derived from historical precedent, while others are derived from a unique creation of those distributing the powers of a particular government. No such title is more controversial or public than that of the President of the United States. This title in a post-Cold War environment conveyed not only the de facto head of the world’s only super power, it also carries some unique constitutional provisions in order to ensure effective decision-making. Currently, the President of the United States has four distinct roles conveyed within the United States Constitution: Head Diplomat, Chief Negotiator, Head of State, and Commander in Chief. What makes all four of these roles unique is that they all apply to the posture of the United States outwardly to the world; with that, foreign policy naturally follows. What is more notable is that these roles did not exist after the colonies’ independence nor in the historical role of the President when the Framers drafted the Constitution.

The Constitution is a document of compromise. It is also a document crafted out of a failed experiment of governing under the Articles of Confederation. Under the Articles of Confederation, Congress was the chief governing body, leaving out an executive branch and relinquishing remaining power to the states. The Federalist Papers demonstrated the contrast between Alexander Hamilton versus John Jay and James Madison: the result of the fallout of the failed Articles of Confederation. All three saw the need for a stronger federal government, but the degree to that strength was dissimilar. Even with Congress as the supreme body over foreign policy, these duties were not being carried out effectively due to the states’ power to ignore congressional authority.

Subsequently, the Annapolis Convention failed to reform, revise, or replace the Articles of Confederation. This failure lead to the Philadelphia Convention, where the Constitution was finally born. Throughout this timespan in Philadelphia, constitutional provisions were debated including which branch of government would have power over military affairs. It was determined Congress would be the organ delegated the authority to raise the army, which was generally accepted by the delegates. What fell into contention was which branch would be delegated the power to control the army that Congress was allowed to raise. A resounding compromise thus resulted: The President was to be Commander in Chief of the Army, and Congress would be allowed to declare war.

The existence of a standing army was a fear for delegates, but reality would require this fear to be overcome in order to prevent a pre-revolutionary outcome. A standing army itself would become constrained by another compromise in order to strike a balance so as to prevent the Commander in Chief from having too much power. The additional compromise would limit military appropriations to two years and would grant Congress the power to pass rules for the Army and Navy. This balance allowed the elected body to have logistical control of the military, and the President to have military command.

Like the Articles of Confederation, the Constitution allowed states to maintain their own militias; however, the distinction was that Congress could regulate them for national service. When in national service, the power would fall to the President as the Commander in Chief of the militias. Although a domestic provision, it demonstrates the power structure of military command the President has as Commander in Chief whether it be on foreign or domestic soil.

Even with a title as grandiose as Commander in Chief, it is still simply a title. The Constitution begged a stronger federal government than its predecessor; however, in the foreign affairs arena, and more specifically in troop deployment, the President acts under Congressional authority. The Prize Cases of 1863 further bound the dynamic roles Congress and the President would possess. The President could mobilize troops in the event of a domestic invasion on American soil without seeking initial Congressional authorization, while on the other hand Congress would need to authorize action in the event of invasion on foreign soil by the United States; and under Federalist 67, Madison set out that the President’s power was defined and confined by the Constitution as a means to prevent unilateral action without Congressional consent.

It wasn’t until United States v. Curtiss-Wright Export Corp. in 1936 that the judiciary stepped in and declared that the President is the sole organ of foreign affairs, which further solidified the deference that not only the judiciary but also Congress has given to the President. Although there have been challenges to the role of the Presidency in the past, as Harold Hongju Koh has pointed out, there has historically been a “three-part combination of executive initiative, congressional acquiescence, and judicial tolerance which explains why the President almost invariably wins in foreign affairs.” A degree of public interest theory additionally plays into why the Court and Congress have deferred to the executive branch. Through allowing the President to act unilaterally, the political pressure of electability is taken off of Congress and the status of the Court in the public eye is preserved.

The War Powers Resolution was a unique development because its creation was a nod to the past, acknowledging that the President had been taking unilateral action without notifying Congress. Through codifying how and when Congress should be notified of a presidential action abroad flipped the roles laid out in the Constitution. Instead of the President operating under Congress, the President could now act as long as mere notification was provided. The defense to not adhering to the War Powers Resolution when committing troops abroad has been the window of response time. The executive branch has often deferred to the excuse that time is of the essence, and action against foreign enemies must be swift and decisive. Relying on Congress results in too much time sacrificed, disallowing protection of the American people.

The Constitution lays out the titles and powers of both Congress and the Presidency, which is a role to be shared when it comes to military action power abroad. The various branch powers have thus evolved since the Constitution’s birth. The evolution of the Presidency has expanded, and as a result, the War Powers Resolution as a statutory response is the only one Congress can provide. Congress has the power to commit troops abroad; however, as that power is assaulted by the Executive Branch, it is Congress’s job to clear the water. The more the Supreme Court defines the role of the Presidency, the more Congress fails to check the Presidency, and the more the presidential power expands.

 

Gray Farris is a student at Middle Tennessee State University. This essay was an honorable mention in the 2020 John Quincy Adams Society/The National Interest student foreign policy essay contest.

 

 

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