Is this President Obama’s “Eisenhower moment”?

President Obama’s announcement that he will ask Congress for a formal authorization for what may turn out to be a very minor use of military force could prove to be his Eisenhower moment.

Eisenhower640While national security hawks and veterans of the Bush administration worry that Obama’s move will set presidential power back decades, and proponents of more congressional involvement are cheering the president’s decision, few are looking at the striking parallels to 1955.

True, there are obvious differences. President Dwight D. Eisenhower was a genuine war hero, a respected authority on the military who remained popular despite facing many crises. President Barack Obama never served in the military and is governing in a time of greater party polarization.

But, for all his personal charisma, Eisenhower could not escape the constitutional legacy of President Harry Truman.

Truman made the decision for war in Korea without seeking authorization from Congress. To be sure, he had the backing of the United Nations Security Council, but this proved of little benefit after intervention by China turned the war into an unpopular stalemate.

To deal with the toxic legacy of Truman’s decision, Eisenhower introduced the innovation of a prospective congressional authorization of force when a crisis over the island of Formosa (Taiwan) erupted in 1955. By this time, Republicans had lost control of Congress, and Eisenhower — like Obama — faced an uncertain political situation.

Also like Obama, Eisenhower believed that he ultimately had the authority to use military force to protect the nation, while acknowledging that Congress had to be consulted in some fashion.

Eisenhower’s solution has proved enduring.  In fact, in terms of practical politics and constitutional law, authorizations have replaced declarations of war.

On the practical side, such authorizations have expressed America’s intention to use only that force necessary and thus avoid the perils of all-out war in a nuclear age. With respect to the Constitution, most scholars agree that these authorizations are the legal equivalent of declarations of war.

There are other interesting parallels between Obama and Eisenhower.

Partly because of the unpopularity and expense of the Korean War, Eisenhower turned to covert means to fight the Cold War.

Similarly, Obama has shifted to a reliance on covert operations, including drone strikes, to combat the threat of terrorism. This shift to covert operations is the result of both Presidents having to wind down substantial foreign military commitments while also maintaining vigilance against evolving threats during a “long war.”

Obama not risking presidential powers

The aftermath of Eisenhower’s precedent suggests strongly that Obama is not risking a significant decrease in presidential power.

Eisenhower and the Presidents who followed him experienced no diminution in their ability to use military force because of the turn to authorizations. Indeed, Presidents generally have employed authorizations only when it was in their political interest to do so. Furthermore, there have been significant military operations mounted in multiple administrations without authorization from Congress.

This is not to say that Congress has lost its ability to participate meaningfully in decisions to use force. Careful recent studies have shown that since the advent of the War Powers Resolution, Congress has not only become more activist concerning the use of force, it has also affected presidential decision-making.

Yet, it seems that few supporters of Congress’ role are satisfied with the present state of affairs. This is because the ultimate sources of presidential war authority are not well-understood.

After 1945, Presidents justified their new power based largely on their unquestioned status as the leader in foreign affairs. Presidents didn’t see themselves taking the nation into a full-scale “war,” even in Korea, Vietnam and Iraq; they considered it fulfilling their responsibility to advance the foreign policy and defend the nation’s security.

Presidential power also was founded on the enormous expansion in the capacities of the military, an expansion approved by democratic means that has endured for decades.

Presidents have known all along that, in the case of an attack, only the executive branch would bear the blame. President Obama was the latest President to realize upon taking office that he was an inevitable heir to this troubled legacy.

Nonetheless, these new presidential powers ran against the grain of the Constitution.  What has happened is that the plausible position that the President must lead in foreign affairs has been unjustifiably extended to the very different situation presented by decisions for war.

Despite this, we should retain some sympathy for the presidency. Contemporary Presidents are caught in a trap.

The Cold War gave them the responsibility of defending national security without addressing the issue of how to rebuild sound interbranch decision-making. So the expansion of presidential power has been more a byproduct of widely shared foreign policy objectives than a unilateral usurpation by presidents.

This development was nevertheless unfortunate, because our constitutional system absolutely depends on adequate interbranch deliberation in order to reach sound policy conclusions.

The task before us is thus not so much to curb a runaway executive branch as it is to come to grips with the challenge posed by the conflict between contemporary American foreign policy and a Constitution still rooted in the 18th century.

Stephen M. Griffin is Rutledge C. Clement Jr. Professor in Constitutional Law at Tulane Law School. He is author of Long Wars and the Constitution (Harvard University Press 2013).

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