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The Supremacy of the Presidency in Defending National Security
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11942 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
8 / 1987 |
5,253 Words |
| Author
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Bruce Fein
Bruce Fein is a constitutional and international lawyer as
well as a journalist. |
The emergence of the United States as a global power in the aftermath of World War II precipitated numerous clashes between the legislative, executive, and judicial branches of the federal government over national security. The president's authority to deploy troops abroad to fulfill NATO commitments, President Truman's seizure of a private steel mill during the Korean War, the Bricker Amendment, the Vietnam War and Pentagon Papers litigation, the War Powers Act, and President Carter's unilateral revocation of the Taiwan Defense Treaty are illustrative. Contemporary national security disputes between President Reagan and Congress swirl around covert action, SALT II, the 1972 ABM Treaty, and the testing of nuclear or antisatellite weapons.
The major reason for the recent proliferation of national security contretemps among the three branches of government is the stress between the Constitution's separation of powers and the imperative of executive branch supremacy in an age of ubiquitous confrontations with the Soviet Union. Speed, energy, secrecy and continuity of policy - the indispensable ingredients of enlightened national security policy - are the earmarks of the presidential office, not the Congress or the Supreme Court. Consequently, the Constitution needs alteration to endow the president with exclusive authority over national security matters, subject only to congressional impeachment for abuses of power. Moreover, the two-term limit on the president established by the Twenty-second Amendment in 1951 should be repealed. And when the president acts for genuine reasons of national security, his actions should be shielded from judicial challenge by private parties.
The United States attained its independency by revolting against oppressive executive power. The Declaration of Independence indicts King George III for countless misdeeds, with virtually no reference to the British Parliament. Executive tyranny was the bugbear of the thirteen American states that won sovereignty by the 1783 Treaty of Paris. Generally speaking, state governments were dominated by the legislative branch, and governors were typically inconsequential. In Virginia, for instance, the governor was elected on the joint ballot of the General Assembly, for one year, and without veto power.
The Articles of Confederation, which preceded the Constitution, provided no independent executive branch. Under the Articles, Congress was endowed with the exclusive right and power of determining peace and war, of sending and receiving ambassadors, and of entering into treaties and alliances. James Madison complained in Federalist 48 that in the American
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