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Presidential PowerHas Bush overstepped his authority in fighting terrorism?

President Bush’s war on terrorism and his

desire to wage war on Iraq are testing the

constitutional system of checks and balances.

While many of Bush’s actions appear within

his authority as commander-in-chief, some unilateral decisions

regarding prosecutions of terror suspects appear in conflict

with existing laws. Bush’s insistence on blanket authority to

pursue his policies also has stirred resentment in Congress,

where Democrats and some Republicans believe they have

been bypassed on key policy decisions. The administration

says the unusual nature of the terrorist threat justifies the

aggressive stance, arguing it needs maximum flexibility to

confront a dangerous enemy. But given the open-ended

nature of the war on terrorism, many lawmakers are contem-

plating how to regain institutional clout.

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THE ISSUES ......................947

BACKGROUND ..................954

CHRONOLOGY ..................955

CURRENT SITUATION ..........959

AT ISSUE ..........................961

OUTLOOK ........................963

BIBLIOGRAPHY ..................965

THE NEXT STEP ................966

THIS ISSUE

Nov. 15, 2002 • Volume 12, No. 40 • Pages 945-968

www.cqpress.com

946 CQ Researcher

THE ISSUES

947 • Has the administrationoverstepped its authorityin the war on terrorism?• Did Congress give thepresident too much leewayby authorizing the use offorce against Iraq?

BACKGROUND

954 ‘Imperial Presidency’After the Sept. 11 terroristattacks, President Bush en-visioned minimal consulta-tion with Congress.

957 Jackson’s ModelPresident Andrew Jacksonfirst affirmed the conceptof a strong chief executivein the late 1820s.

958 Congress Pushes BackThe run of unchallengedWhite House powerended during Lyndon B.Johnson’s administration.

CURRENT SITUATION

959 Homeland SecurityThe Bush administrationand Congress are fightingto control the new depart-ment of homeland security.

960 Election PoliticsGOP victories in the 2002midterm elections gave theWhite House a chance topass homeland securitylegislation.

962 Other Bush MovesPresident Bush has reversedan array of longstandingenvironmental-protectionlaws and regulations.

OUTLOOK

963 Anti-terror ‘Proxy’Critics warn the administra-tion could cite national secu-rity to justify increasing po-lice powers and otherpolicies.

SIDEBARS AND GRAPHICS

949 Congress’ Power of thePurseFew congressional powerscan tie a president’s handsmore than control of discre-tionary spending.

952 War Powers Act Pits Congress vs. PresidentEvery president since Nixonhas viewed it as an unconsti-tutional infringement on thecommander-in-chief’s authority.

955 ChronologyKey events since 1787.

956 Was Lincoln a Dictator?His forceful use of executivepowers during the Civil Warprompted charges he hadbecome a military dictator.

961 At IssueDid the president act respon-sibly in seeking authority topre-emptively strike Iraq?

FOR FURTHER RESEARCH

964 For More InformationOrganizations to contact.

965 BibliographySelected sources used.

966 The Next StepAdditional articles from currentperiodicals.

967 Citing The CQ ResearcherSample bibliography formats.

PRESIDENTIAL POWER

Cover: President Bush walks toward the White House South Lawn before delivering remarksat ceremonies on March 11, 2002, commemorating the six-month anniversary of the Sept.11, 2001, terrorist attacks. (AFP Photo/Stephen Jaffe)

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Presidential Power

THE ISSUESS en. Robert C. Byrd, the

self-appointed guardianof congressional pre-

rogatives, was shaking withrage.

Standing on the floor ofthe Senate on Oct. 3, the 85-year-old West Virginia De-mocrat bitterly denounced theBush administration for pres-suring Congress to quicklyapprove a resolution autho-rizing the use of unilateralforce against Iraq on thegrounds that it poses a threatto U.S. interests.

“This is an unprecedent-ed and unfounded interpre-tation of the president’s au-thority under the Constitution,not to mention the fact thatit stands the charter of the United Na-tions on its head,” Byrd declared. “Thepresident is using the Oval Office asa bully pulpit to sound the call toarms, but it is from Capitol Hill thatsuch orders must flow.”

Byrd saw the resolution as the lat-est example of the White House’s at-tempt to steamroll the legislative branchon a key national security matter —this time by forcing the House andSenate to vote just weeks before themidterm elections on whether to launcha pre-emptive strike on a sovereignnation that intelligence reports indi-cated was amassing weapons of massdestruction. Lawmakers for the firsttime in history were put in the diffi-cult position of having to give thecommander-in-chief open-ended au-thority to begin firing when he pleas-es — or attaching conditions and ap-pearing to tie his hands.

After more than a week of debatein the House and Senate, the adminis-tration got what it wanted. Congresspassed compromise language empow-

ering the president to wage war, thoughmaking it clear he should first gain sup-port from the United Nations. * Whilethe House cleared the resolution bybetter than a 2-to-1 margin, and theSenate by better than 3-to-1, there waspalpable concern on Capitol Hill aboutthe precedents that were being set andthe possible consequences. Some law-makers like Byrd questioned the tim-ing of the vote, while others wonderedwhether they were affirming an impe-rial presidency that would march to itsown beat in international relations. 1

“The Constitution clearly [creates a]separation of powers to stop the pres-ident from going off on foreign ad-ventures without the express consentof the American people,” says Rep.Sam Farr, D-Calif., who voted againstthe resolution.

“We need to have a na-tional dialogue,” added Sen.Chuck Hagel, R-Neb., a dec-orated Vietnam veteran andSenate Foreign Relations Com-mittee member, who initiallyquestioned Bush’s plan butsupported a modified ver-sion of the resolution. “Wedidn’t have that dialogue be-fore we got into Vietnam. Wehave to be careful aboutwhat we’re doing.”

The Iraq debate reflectedthe tense state of relations be-tween the Bush administra-tion and Congress since theSept. 11, 2001, terrorist at-tacks on New York and thePentagon. The administrationhas used the threat of terror-ism — and less specific chal-lenges to U.S. interests — totry to wield a brand of clout

similar to that seen during World WarII and the Cold War. After trying toscore narrow political victories in theirfirst year in office, Bush Cabinet offi-cials now are aggressively asserting au-thority over foreign and domestic af-fairs, aided by Bush’s administrative fiatand Congress’ general tendency to lookto the executive branch for leadership.

Some scholars attribute the move toa strongly held belief within the ad-ministration that presidential power hasslipped over the past two decades, ev-idenced most recently by former Pres-ident Bill Clinton’s unsuccessful invo-cation of executive privilege during thescandals that plagued his administra-tion. The chief advocate of this view,according to many observers, is VicePresident Dick Cheney, who in 1987— as ranking Republican on the Houseselect committee that investigated theIran-Contra scandal — had scolded fel-low lawmakers for stepping on then-President Ronald W. Reagan’s toes. 2

But the administration’s tactics haveangered Democrats and some Repub-

BY ADRIEL BETTELHEIM

AFP

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After meeting with President Bush, Senate MinorityLeader Trent Lott announces that President Bush will

resume briefing congressional leaders on anti-terrorismoperations. Bush had restricted secret information afteraccusing lawmakers of leaking classified information.

With Lott on Oct. 10, 2001, were, from left, HouseSpeaker Dennis Hastert, Senate Majority Leader Tom

Daschle and House Minority Leader Dick Gephardt. TheNovember 2002 elections changed Congress’ leadership.

* The U.N. Security Council unanimously adopt-ed a tough weapons-inspection mandate forIraq on Nov. 6, 2002, calling on Saddam Hus-sein to scrap his weapons of mass destruc-tion or face “serious consequences.”

948 CQ Researcher

licans in Congress,who increasinglybelieve they arebeing bypassed onkey decisions andmay be ceding toomuch power to theexecutive branch inthe name of nation-al security. Some,such as Byrd andHouse JudiciaryCommittee ChairmanF. James Sensen-brenner Jr., R-Wis.,are mulling ways topublicly express theirdispleasure, includ-ing holding hearingson administrationpolicies, issuing sub-poenas and possiblywithholding fundingfor some presiden-tial initiatives. 3

“It’s quite a tug-of-war, and Cheneyand others in the ad-ministration think itis time Congressgives the executivebranch its due,” saysFred I. Greenstein, apresidential scholarat Princeton Univer-sity. “Presidents havebeen constrained byother actors and con-stitutional complexities and have hadto use all their wiles and political savvyto get their way. Congress goes backand forth on how much the presidentshould be constrained. A lot of it boilsdown to whose ox is being gored.”

The showdown over Iraq is onlythe latest friction point in the strugglebetween the two branches. For mostof 2002, Bush and Congress have alsofought over the merits of creating adomestic security agency. Then in June,facing declining approval ratings andquestions about intelligence lapses prior

to Sept. 11, the White House abrupt-ly reversed its previous policy of re-jecting congressional efforts to create agovernmental counterterrorism agency.Bush proposed creating a homelandsecurity department by combining 22existing federal agencies with at least170,000 employees and a budget of$37.5 billion. He then demanded thatCongress give him more power overfederal civil service employment prac-tices — such as the authority to hire,fire and transfer workers and to ex-clude some from civil service protec-

tions — all in the nameof national security. Sen-ate Democrats’ resis-tance to those demandsthreatened to stall actionon a homeland securitybill in the 107th Congress.

The administration sim-ilarly pressed lawmakersfor expanded authoritysoon after the Sept. 11 at-tacks, when it asked for,and received, new pros-ecutorial powers to trackterror suspects and theirsympathizers in an anti-terrorism law commonlyknown as the USA Patri-ot Act. But while law-makers were debating andwriting the legislation, theadministration was sepa-rately instituting a seriesof rules without consult-ing Congress that allowedauthorities to indefinitelydetain suspects, listen inon conversations betweensome federal prisoners andtheir lawyers and moreclosely scrutinize visa ap-plications from certaincountries. The WhiteHouse also authorizedthe use of military tribunalsto try foreigners suspect-ed of terrorism. The ac-tions raised questions

about whether Bush was deliberatelyshifting power away from Congress andinto the domain of the executive branchand the courts. 4

“The thread running through all ofthis is the feeling on the part of the ad-ministration that it can arrogate powerto itself and dismiss review either byCongress or the courts, saying any ques-tions will hurt the war on terrorism,”said Neil Sonnett, former assistant U.S.attorney in Florida, who chaired an Amer-ican Bar Association task force that re-viewed the administration’s legal tactics.

PRESIDENTIAL POWER

AFP

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Army MPs take a handcuffed detainee at Camp X-Ray in GuantanamoBay, Cuba, for questioning at the Joint Interrogation Facility. Criticssay that while many of the arrests of terrorism suspects appear legal

under President Bush’s authority as commander-in-chief, someunilateral decisions regarding prosecutions of terror

suspects may conflict with existing laws.


The power tug-of-war goes beyondnational security matters. Bush alsohas resisted congressional and publicoversight on non-terrorism matters,such as denying requests for docu-ments from an energy task force chairedby Cheney. Environmental and con-gressional critics said the panel, chargedwith crafting the administration’s en-ergy plan, was too closely alignedwith the oil, coal and electricity in-dustries. And Bush in November 2001ordered that a sitting president couldhave unlimited time to decide whetherto release presidential documents andnew powers of censorship over thosedocuments — a move that raised thehackles of archivists, historians and li-brarians. They said the order violatedthe spirit of the 1978 PresidentialRecords Act, which gives the publicaccess to old White House papers.

To some extent, Congress is at anatural disadvantage in power strug-gles with the executive branch, be-cause its decentralized nature and high-ly charged partisan environment makesit difficult for the House or Senate tocoordinate strategy or speak with onevoice. In rare cases, courts have beenleft to decide whether a president over-reached, such as when the SupremeCourt in 1952 ruled that President HarryS Truman had no legitimate power tonationalize steel mills during the Ko-rean War. 5

Congress has had an especially dif-ficult time reacting to the war on ter-rorists, because it has scrambled tradi-tional concepts of deterrence and useof force. But scholars note that the leg-islative branch still has options. For in-stance, Congress can influence publicopinion by stretching out debate on

administration initiatives so that the pub-lic dialogue takes into account oppos-ing views. It also can shift its agendato issues the administration wants toavoid, such as the sputtering economy.In extreme cases, it can even cut offfunding for administration initiatives.However, lawmakers must propose so-lutions and not simply appear to beguarding their turf or trying to scorepolitical points, according to analysts.

“The president in the past benefit-ed from a certain ambiguity in the waypeople perceive his role, because thebully pulpit allowed him to quicklystake a claim — such as declaring thatthe Cheney task force documents areconfidential — and have it accepted,”says George C. Edwards III, a profes-sor of political science at Texas A&MUniversity. “Now, on the biggest is-sues, particularly the war, you’re see-

F ew congressional powers can tie a president’s handsmore than control of discretionary spending, known in-formally as “the power of the purse.”

This constitutionally conferred prerogative is the most ef-fective way to force a president to use military force — ormake other policy changes — in ways he might otherwise notconsider. But lawmakers run the risk of triggering a politicalbacklash if their actions are viewed as jeopardizing the well-being of troops already committed in the field.

Since the Vietnam era, Congress frequently has used fund-ing cutoffs or significant reductions to end or limit the use ofmilitary personnel abroad. Because the cutoffs usually are in-cluded in annual spending bills, they have to be renewed eachyear to have the effect of being permanent policy:

• Congress tried several times during the last years of the Viet-nam War to restrict U.S. military activity in Indochina. A sup-plemental foreign-assistance appropriations act, cleared byCongress in December 1970, prohibited the use of funds tointroduce ground combat troops in Cambodia or to provideU.S. military advisers to Cambodian military forces.

• A supplemental fiscal 1973 appropriations bill cut off fundsfor combat activities in Indochina after August of that year.Similar language was included in a stopgap funding mea-sure passed in June 1973. Then Congress passed the For-eign Assistance Act of 1974, which set a personnel ceil-ing of 4,000 Americans in Vietnam within six months of

enactment, and 3,000 Americans within one year.• More recently, the fiscal 1994 defense spending bill ap-

proved the use of U.S. combat forces in strife-torn So-malia for certain purposes — such as security roles andprotecting United Nations units — but it cut off fundingfor other purposes after March 31, 1994. The fiscal 1995defense-spending bill went further, stipulating no fundsappropriated by the act could be used for a continuedpresence in the African nation.

• The fiscal 1995 defense-spending bill also cut off fundingfor military participation to address ethnic and other con-flicts in the African nation of Rwanda, except for actionto protect the lives of U.S. citizens.

Congress also has periodically used funding restrictions tolimit military or paramilitary actions around the world. The fis-cal 1976 defense-spending bill restricted military activity in An-gola to intelligence gathering. Congress later made the ban per-manent law through the International Security Assistance andArms Export Control Act of 1976.

The 1984 dispute over funding anti-government guerrillas inNicaragua known as “contras” also led to a funding ban oncontinuing CIA, Pentagon or other federal agency activities inthe Central American nation in fiscal 1985. The legislation pro-vided that, after Feb. 28, 1985, the president could spend $14million on the contras, subject to congressional approval, if hespecified why continued military assistance was necessary.

Congress’ Power of the Purse

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PRESIDENTIAL POWER

ing Congress challenge him, and raisequestions before it’s too late.”

In the aftermath of the midtermelections that delivered the Senate backinto Republican hands, Congress is notexpected to mount robust challengesimmediately and create the perceptionthat it is disloyal and unpatriotic. In-deed, Republicans are expected to ea-gerly work to advance the president’sagenda — for example by trying topass homeland defense legislation andenact tax cuts to spur the economy.Democrats, trying to regroup in timefor the 2004 elections, may not havethe appetite to quickly challenge thepolitically popular chief executive. Butgiven the open-ended nature of thewar on terrorism, many are contem-plating how to regain institutionalclout instead of being relegated to along-term supporting role. 6

As Congress mulls the executivebranch actions and the constitutionalsystem of checks and balances, hereare some questions being debated:

Has the administration over-stepped its authority in the waron terrorism?

House Judiciary Committee Chair-man Sensenbrenner has a tempestuousrelationship with the Bush administra-tion. The veteran Republican con-gressman from the Milwaukee suburbsis a stickler for rules and insists on def-erence, frequently erupting in angerwhen he doesn’t get it. Sensenbrennerwas in a particularly cranky mood whenhe met with a group of MilwaukeeJournal-Sentinel reporters and editorsduring Congress’ August recess.

For two months, the Bush JusticeDepartment had refused to answerquestions from Sensenbrenner’s com-mittee about how the administrationwas using new powers conferred bythe USA Patriot Act in its foreign in-telligence investigations. The commit-tee wanted to know, for example, howmany times U.S. citizens or residentlegal aliens had been electronically

monitored, how many times authori-ties had been allowed to monitor sus-pects’ conversations as they movedfrom phone to phone and how library,newspaper and bookstore records werebeing used. The committee said it need-ed the information to assess whetherto reauthorize the law when it expiresin 2004. But the administration wasnot rushing up to the Hill with an-swers, saying the information was se-cret and would only be shared laterwith the House Intelligence Commit-tee, which does not have jurisdictionover the anti-terrorism law.

Quipping that the White House wasplaying “I’ve Got a Secret,” Sensen-brenner told journalists: “I’ve neversigned a subpoena in my five and ahalf years as chairman. I guess there’sa first time for everything.” 7

Although the administration has sinceprovided more details, such incidentsand broader questions about its prose-cutorial powers have fueled concernsthat the White House is openly disre-garding Congress and compromising civilliberties in the name of national secu-rity. The incidents also have raised ques-tions about whether the administrationis using a cloak of secrecy to dodgecongressional and public oversight.

“They’re not using the war to ad-vance a hidden agenda, but their poli-cies reflect what some would regardas a peculiar notion about executivebranch power that emphasizes unilat-eral action and obstructs even themost routine requests for information,”says Steven Aftergood, director of theproject on government secrecy of theFederation of American Scientists.

Aftergood points to administrationefforts such as a recent decision todefine a new category of governmentinformation — tentatively called sen-sitive homeland security information,or SHSI — that could be withheldfrom the public on the grounds thatmaking it public is tantamount to mak-ing it available to terrorists. While theWhite House has not said what the

category would encompass, it couldinclude everything from blueprints ofgovernment buildings to scientific re-search deemed useful for making bi-ological or chemical weapons. 8

Administration officials defend theiractions, saying the stealthy and oftenlethal nature of terrorism requires abroad and swift response. They addsome personal liberties may have tobe sacrificed for national security.

“The mission of the Department ofJustice has been transformed from afocus on prosecution of illegal acts toa focus on the prevention of terroristacts,” Attorney General John Ashcrofttold the Eighth Circuit Judges Confer-ence in Duluth, Minn., in August. “Likemany Americans, I am concerned aboutthe expansion of preventative law en-forcement. That is why we . . . [are]mindful that we seek to secure liber-ty, not trade liberty for security.”

One policy that has aroused con-cern and comment is the administra-tion’s secret detention of two U.S. citi-zens accused of terrorism and at least147 others detained in the investigationof the Sept. 11 attacks. Lawmakers, in-cluding Sen. Arlen Specter, R-Pa., a for-mer prosecutor, have questioned whetherthe detentions without access to a lawyerof U.S. citizens José Padilla and YaserHamdi as “enemy combatants” violatesa 1971 law that bars citizens whohaven’t been charged with a crime frombeing imprisoned or detained indefi-nitely, except pursuant to an act of Con-gress. Padilla was detained for allegedlyplotting to detonate a radioactive bomb.Hamdi was nabbed fighting for the Tal-iban in Afghanistan. The law was in-spired by the controversial World WarII internment of Japanese-Americans. 9

Critics say the White House is try-ing to claim a right to detain citizenswithout charging them with a crime,creating a paradox in which a citi-zen charged with being an enemycombatant, such as so-called “Amer-ican Taliban” John Walker Lindh, hasmore rights than the uncharged citi-


zen detainees. The White House de-fends the prosecutorial strategy aslegal, however, citing a 1942 SupremeCourt ruling in a case dealing withNazi saboteurs, which stated that themilitary may detain a U.S. citizen whojoined the enemy or entered the coun-try to carry out hostile attacks.

Similarly, critics complain about se-cret deportation proceedings againstaliens detained in the Sept. 11 investi-gation that exclude the public, the pressand even the families of the accused.Some were not ini-tially told why theywere being held. The6th U.S. Circuit Courtof Appeals ruled inAugust that the insis-tence on closed pro-ceedings was uncon-stitutional because itdenied the public’sr ight to knowwhether the govern-ment is acting legal-ly. The three-judgepanel called the pol-icy “profoundly un-democratic,” warningthat it could result ina “wholesale suspen-sion of First Amend-ment rights.” 10

Congress sepa-rately is discussingwhether to hold hear-ings into whethersome detentions violate the USA Patri-ot Act, which gave law enforcementseven days to charge or release sus-pects or to begin deportation pro-ceedings. The administration defendsthe secret proceedings, saying disclo-sure of charges could compromise on-going investigations. Though lawmak-ers are not about to argue for quickerreleases of suspects, it is ponderingnew legislation that would set stan-dards for lengthy detentions.

“Instead of expending resources toprevent the release of information about

detainees, the administration should showit has confidence in the Justice Depart-ment’s investigation by opening the de-partment’s actions to public scrutiny,”says Sen. Russell D. Feingold, D-Wis.

Even the ultrasecret federal courtthat oversees terrorism investigations iscriticizing the administration. Last May,the Foreign Intelligence SurveillanceCourt refused to expand Justice De-partment powers to use intelligence in-formation, saying the administration wastrying to thwart the will of Congress

and give criminal investigators free ac-cess to classified information.

The so-called FISA court meets insecret to approve warrants and almostnever publishes opinions. But it saidfederal agents had misled the court inapplications for secret eavesdroppingwarrants during both the Clinton andBush administrations. It concluded theBush administration’s efforts to expandthe use of classified information couldviolate the Fourth Amendment, whichprohibits unreasonable searches andseizures.

Ironically, the ruling could promptCongress to give the administration moreprosecutorial powers, albeit within spe-cific guidelines. Specter, Sen. CharlesE. Grassley, R-Iowa, and others on theSenate Judiciary Committee concernedabout the effectiveness of ongoingprobes are considering legislation tomake it easier for the FBI and otherinvestigative agencies to obtain war-rants. The lawmakers were infuriatedlast summer on learning that the Min-neapolis office of the FBI could not

obtain a FISA warrant toinspect the laptop com-puter of terror suspectZacarias Moussaoui in theweeks before the Sept.11 attacks because therewas no clear evidencelinking the French Mus-lim to an internationalterror group.

“We need to give thegovernment some ex-panded powers,” saysSen. Charles E. Schumer,D-N.Y., a Judiciary Com-mittee member. “The realtrick is finding the rightbalance.” 11

While the administra-tion’s assertive strategyclearly has bruised egosand drawn admonitions,i t remains unc learwhether the presidentactually has overreached

and skewered the system of checks andbalances. Some scholars cite the strongcongressional reaction as proof that thesystem is alive and well. In fact, theysay, it has prevented the United Statesfrom following Europe’s lead and en-acting even tougher anti-terrorism mea-sures. According to this line of think-ing, Bush is no different from hispredecessors who sought sweeping au-thority during wartime. But, the admin-istration almost certainly would not havebeen able to enact a law like Britain’santi-terrorism act, which authorizes the

AFP

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Flanked by Vice President Dick Cheney, left, and Defense SecretaryDonald H. Rumsfeld, President Bush speaks in the White House Rose

Garden on Oct. 23, 2002, before signing legislation increasing defensespending for 2003. Bush’s insistence on blanket authority to pursue his

anti-terrorism and war policies has antagonized some members ofCongress, who believe they have been bypassed on key policy decisions.

952 CQ Researcher

PRESIDENTIAL POWER

government to record and store citizens’e-mails, Internet browsing habits andother electronic communications and tomake the information available to au-thorities without a court order. The Eu-ropean Union in May authorized mem-bers to pass similar data-retentionmeasures.

“So far, in the face of great stress,the system has worked relatively well,”George Washington University law Pro-fessor Jeffrey Rosen wrote recently inThe Washington Post. “The executivebranch tried to increase its own au-thority across the board, but the courtsand Congress are insisting on a morereasoned balance between liberty andsecurity. Of all the lessons aboutAmerica’s strength that have emergedsince the attacks, this is one of themost reassuring.” 12

Did Congress give the presidenttoo much leeway by authorizingthe use of force against Iraq?

As Congress returned from its Au-gust recess, President Bush aggres-sively worked to develop compromiselanguage on the use-of-force resolu-tion against Iraq that so upset Sen.Byrd. The administration dispatchedhigh-level officials to Capitol Hill tooffer private, classified briefings forundecided lawmakers about Iraqiweapons capabilities and to make thecase for pre-emptive strikes. It alsopreviewed proposed drafts of the res-olution, which eventually would wina solid bipartisan majority in bothhouses.

But perhaps the president’s mosteffective selling job took place 235miles to the north. On Sept. 12 Bush

addressed the United Nations and laidout his rationale for an attack, mak-ing his case in the context of inter-national law and U.N. agreements, andfinally warning that the United Stateswas prepared to act with or withoutSecurity Council sanction. The ap-pearance did not win over the worldbody, especially after Iraq agreed toa new round of U.N. weapons in-spections.

However, his tough talk and bowto the international body unified con-gressional Republicans and evenbrought skeptical Democrats into theadministration’s corner. Senate Major-ity Leader Tom Daschle, D-S.D.,dropped his plan to postpone a voteon a resolution until next year. AndHouse Democratic Leader Richard A.Gephardt of Missouri — like Daschle

T ensions between Congress and the Nixon administra-tion already were reaching the boiling point in 1973when lawmakers, on learning about the secret bomb-

ing of Cambodia, passed the War Powers Resolution, servingnotice they were reasserting influence over the country’s for-eign affairs.

But in trying to limit the president’s power to send U.S.forces abroad without congressional approval, they created adocument that, nearly 30 years later, continues to stir contro-versy and confusion over presidential power.

When Congress approved the act, Richard M. Nixon’s pres-idency was already weakened by the Watergate scandal, hisfiring of special prosecutor Archibald Cox and the scandal sur-rounding the Watergate tapes. 1

Nevertheless, Nixon vetoed the resolution, arguing it would“seriously undermine the nation’s ability to act decisively andconvincingly in times of international crisis” and “give everyfuture Congress the ability to handcuff every future presi-dent.” 2

But the House and Senate — intent on flexing their mus-cle — each overrode his veto and enacted the resolution intolaw, arguing that the president could only commit forces pur-suant to either a declaration of war, specific statutory autho-rization or an emergency created by an attack on the UnitedStates. Without such approval, the resolution required termi-nating troop commitments within 60 days, with a 30-day ex-tension, if necessary, to ensure safe withdrawals.

“If the president can deal with the Arabs, and if he can

deal with the Soviets, then he ought to be able and willing todeal with the U.S. Congress,” said then-House Majority LeaderThomas P. “Tip” O’Neill Jr., D-Mass. 3

Every president since Nixon has viewed the War Powers Res-olution as an unconstitutional infringement on the commander-in-chief’s authority as head of the armed forces to defend vitalnational security interests. Congress has never used the resolu-tion to compel the withdrawal of military forces against the pres-ident’s will. But the mere existence of it has led the two sidesto compromise over a series of foreign showdowns. 4

One of the first deals was struck in September 1983, whenPresident Ronald Reagan and Congress agreed to authorize theparticipation of U.S. Marines in a multinational peacekeepingforce in Lebanon for 18 months. But the next month, a sui-cide truck bombing killed 220 Marines and 21 other U.S. ser-vice members at the Marines’ compound in Beirut. Reagan an-nounced he was pulling the Marines out, and in March 1984he reported to Congress that U.S. participation in the multina-tional force had ended.

Six years later, at the outset of the Persian Gulf War withIraq, Congress bristled at President George Bush’s deploymentof military personnel to Saudi Arabia to defend U.S. interestsin the region without congressional approval.

Congress belatedly approved the use of military force againstIraq, but, citing the War Powers Resolution, lawmakers stipulat-ed that the president must certify to Congress that such use offorce was necessary and that diplomatic efforts had failed. Whilethe sides ultimately agreed on the common objective, Bush made

War Powers Act Pits Congress vs. President


a possible 2004 presidential aspirant— unexpectedly one-upped his Sen-ate counterpart, cutting a deal withthe White House giving Bush author-ity to wage war but stipulating thathe must first consult with Congressand provide evidence that diplomacyis no longer working. 13

Bush’s dual-track selling job camewith polls indicating lukewarm pub-lic support for a U.S. attack on Iraq.Many lawmakers also were uncon-vinced that there is a real connectionbetween Iraq and the war on terror-ism. Analysts said the result was trib-ute to the president’s effective use ofthe bully pulpit and his bare-knuck-les political tactic of challenging Con-gress to defy him on a national se-curity matter in an election year. Manyalso attributed the widespread Demo-

cratic acquiescence to a desire to dis-pense with the matter so they couldconcentrate on traditional party issues,like prescription drugs for the elderlyand protecting Social Security.

“The president has run a success-ful campaign to win a vote,” ThomasE. Mann, a senior fellow at the Brook-ings Institution, said after the vote onthe resolution. “The president has notpersuaded the public or the Congressthat a full, careful, cost-benefit analy-sis has been done and that this is thewisest course to follow.”

The Iraq vote could set a new prece-dent for a chief executive seeking warpowers. Congress for the first time al-lowed the president to launch militarystrikes, without advance notice, underconditions that preclude a lengthy de-bate. That conflicts with Article I, Sec-

tion 8, of the Constitution, which givesCongress power “to declare war.”Though Congress has only done soon five occasions — the War of 1812,the Mexican War, the Spanish-Ameri-can War and the two world wars —institutionalists like Byrd fear futurepresidents will use a pre-emption doc-trine to bypass the legislative branchwhen it suits them.

Since passage of the 1973 War Pow-ers Resolution, Congress has used theact for leverage in debates over war.(See sidebar, p. 952.) The law allowsCongress to compel — against thepresident’s will — the withdrawal ofmilitary forces from foreign deploy-ments if Congress does not approveof the action. While Congress has neveractually used it to pull back troops,the existence of the act has, from time

it clear that he never soughtcongressional authorization.Congress, however, charac-terized its action as the req-uisite authorization to proceed.

Another flareup over pres-idential authorization of com-bat activity occurred in March1999, when President Bill Clin-ton notified Congress he hadbegun air strikes against Yu-goslavia in response to its re-pression of ethnic Albaniansin the province of Kosovo.

Congressional Republicanstried to use the War PowersResolution to overturn thepresident’s actions, and later attempted to withhold funding forthe operation. In fact, 18 members of Congress, led by Rep.Tom Campbell, R-Calif., even sued Clinton in federal districtcourt in Washington, alleging his actions violated the act. Thesuit was dismissed after the judge ruled the members lackedlegal standing to bring the suit. The U.S. Court of Appeals forthe District of Columbia Circuit upheld the ruling. The lawmakersappealed to the U.S. Supreme Court, but justices refused to hearthe case, letting stand the appeals court decision.

Experts believe the resolution remains a useful and appro-priate way to express congressional sentiment, even if presidents

continue to argue it is notlegally binding. Louis Fisher, aspecialist in separation of pow-ers at the Congressional Re-search Service, argues that ifthe legislative branch does notuse the powers available to itand acquiesces to the execu-tive branch, courts cannot berelied on to rule on abuses thatmay arise.

“Congress must be pre-pared, and willing, to exercisethe ample powers within itsarsenal,” Fisher writes. “It needsalso the institutional courageand constitutional understand-

ing to share with the president the momentous decision tosend U.S. forces into combat.” 5

1 For background, see “Watergate Crisis, 1972-1976 Political Chronology,”in Congress and the Nation, 1973-76 (1977).2 See 1973 CQ Almanac, pp. 905-917.3 Ibid.4 For background, see Congressional Research Service, “Congressional Useof Funding Cutoffs Since 1970 Involving U.S. Military Forces and OverseasDeployments,” Report No. RS20775, Jan. 10, 2001.5 See James A. Thurber, ed., Divided Democracy: Cooperation and ConflictBetween the President and Congress (1991), pp. 199-215.

War Powers ResolutionSec. 4 — Consultation

“The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situa-tions where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regu-larly with the Congress until United States Armed Forces are no longer engaged in hostili-ties or have been removed from such situations.”

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to time, forced presidents to compro-mise even though they view it as anunconstitutional infringement on theirauthority. 14 Congress also has the po-litically risky option of not fundingmilitary actions — a move that canbe viewed as not supporting U.S. troopsin the field.

Congress was not sure how to reactto the White House’s insistence for warauthority, especially given the speedwith which the Iraq debate progressedand overshadowed other items on theHouse and Senate agendas. Some law-makers chose to parse the dilemmafrom a legal perspective, questioningwhether it is appropriate to react to a“continuing threat,” as opposed to an“imminent threat.” Skeptics like SenateArmed Services Committee ChairmanCarl Levin, D-Mich., say lowering thethreshold for a pre-emptive strike couldlead unfriendly countries with weaponsof mass destruction — such as Iran orNorth Korea — to strike unilaterally,possibly against U.S. interests. But dur-ing Senate and House debates, Levinand Rep. John M. Spratt Jr., D-S.C.,each failed to persuade colleagues toadd language requiring the White Houseto seek another congressional vote be-fore launching unilateral strikes againstIraq, unless it were part of an inter-national coalition.

Byrd questioned whether Bush’sswagger will hinder future attempts tobuild international coalitions and ac-cused him of timing the vote to coin-cide with the politically charged peri-od before midterm elections. Byrdintended to use Senate rules to dragout debate beyond the elections, butDaschle thwarted him by using his ownprocedural tactics to change the orderof the text of the resolution. The cham-ber adopted the resolution after twoweeks of debate and within hours ofthe House. “We debated it at least aslong as the debate we had in 1991[over war with Iraq], and I think every-one knows how they’re going to vote,”Daschle said. 15

The final version attaches someconditions, though it generally is morebroadly worded than similar resolu-tions in the past. It allows the presi-dent to wage war as long as he in-forms Congress within 48 hours afterthe start of military action. In contrast,the resolution authorizing PresidentBush’s father to commence the 1991Gulf War stipulated that the presidenthad to tell Congress that diplomaticefforts had failed before he could launchan attack.

The new resolution requires thepresident to certify that non-militarymethods of eliminating the threathave failed and reaffirm that remov-ing the threat posed by Iraq is con-sistent with, and an integral compo-nent of, the war on terrorism. Thelanguage also requires Bush to reportto Congress every 60 days on rele-vant matters concerning the con-frontation with Iraq, and reaffirms the1998 Iraq Liberation Act, which saidIraqi President Saddam Hussein shouldbe removed from power. 16

Some observers suggest debatesover how much power the presidentaccumulates are pointless, becausethe Founding Fathers envisioned thepresident having to quickly authorizemilitary action in self-defense, evenwhen it was unilateral. They point outthat Congress recognized this in 1798,when it authorized the first militaryaction: to block France from interfer-ing with U.S. maritime commerce.Since then, presidents have sentAmerican troops into conflict at least200 times without formal declarationsof war, though most of the actionswere authorized by congressionalstatute.

“We’re living in a post-Cold Warworld where deterrence alone just does-n’t do the job it used to,” says JackSpencer, security analyst at the con-servative Heritage Foundation. “Ourpresident has all the authority heneeds to address this new threat, andhe should use it.”

“The question isn’t why now, butwhy not earlier,” said Sen. Joseph I.Lieberman, D-Conn., as he supportedthe resolution during the Senate de-bate. “Over the last decade, Saddamhas built up weapons of mass de-struction, developed the means to de-liver them on targets near and far andconsistently ignored and violated U.N.resolutions. We’ve waited too long toaddress this threat.”

Others contend, however, that Con-gress capitulated by giving the presi-dent extraordinary powers that cannotbe challenged. They say Congresssigned its authority away — and didso clearly understanding that the Bushadministration is trying to overthrowthe Iraqi regime. Some worry aboutsimilarities to the 1964 Gulf of TonkinResolution, in which Congress autho-rized President Lyndon B. Johnson touse force and effectively authorizedthe Vietnam War because of reportsof an attack on U.S. vessels in South-east Asian waters.

“To have the president draft the res-olution, submit it to Congress and de-mand they pass it — it’s incredible ar-rogance of power, but they did it,”says Shirley Anne Warshaw, a politi-cal science professor at GettysburgCollege. “The fear of terrorism hasemasculated Congress.”

BACKGROUND‘Imperial Presidency’

P resident Bush was sworn into of-fice at a time when presidential

clout was on the wane. Since the endof the Cold War, Congress has takenthe initiative in areas once the exclu-sive domain of the chief executive,forcing the president into political bat-

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Continued on p. 956


Chronology1780s-1820sThe office of the presidency isconceived and its powersspelled out.

1787The Constitution spells out thepresident’s executive powers, suchas military command, involvementin the legislative process, pardonand the execution of laws. Whilethe president is designated “com-mander-in-chief” of armed forces,Congress is given the power “todeclare war.”

1801-1803Thomas Jefferson battles with theSupreme Court over the conceptof judicial review. The question ofwhether ultimate authority restswith the president and electedrepresentatives in Congress or in afixed legal standard has come uprepeatedly in U.S. history.

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1830s-1860sPresidents seek to expand ex-ecutive powers, increasing theirinfluence over legislation, mili-tary matters and responses tonational emergencies.

1832Andrew Jackson vetoes a congres-sional bill to re-charter the NationalBank of the United States for fouryears, arguing for the first time thata veto is justified if the presidenthad a policy disagreement withCongress. By demanding to be in-volved in the drafting of legislation,Jackson alters the relationship be-tween the executive and legislativebranches. Jackson later tries to killoff the bank, triggering a bitterpower struggle over control of theexecutive administration.

1844-1848James K. Polk further asserts presi-dential power, for the first timecreating an executivebranch bud-get and insisting on being the de-cisive authority in all military mat-ters during the Mexican War.

1861-1865Abraham Lincoln seizes extraordi-nary powers during Civil War, sus-pending habeas corpus and im-posing martial law. Lincoln alsopushes the anti-slavery 13thAmendment through Congress.

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1900s-1960sEconomic and military criseshelp define a modern notion ofpresidential power.

1901-1908Theodore Roosevelt expands exec-utive power, claiming the presidentpossesses a special mandate fromthe people. He wins authority toregulate railroad shipping rates,takes control of the Panama CanalZone and intervenes in the Russo-Japanese War, for the first time rec-ognizing one power’s claim on theterritory of another.

1918Woodrow Wilson fails to win Sen-ate approval to create the Leagueof Nations, indicating the presiden-cy still can be limited by Congressand public opinion.

1935-1937Franklin D. Roosevelt triggers a con-stitutional crisis when he tries to“pack” the Supreme Court by replac-ing the oldest justices after the courtstrikes down a series of New Deallaws on the grounds they delegatetoo much authority to the executive.Roosevelt fails to get the plan

through Congress. Roosevelt’s actionsspark a backlash, as conservativeDemocrats and Republicans blockfurther presidential reform initiatives.

1952Supreme Court, in YoungstownSheet and Tube Co. v. Sawyer, re-buffs Harry S Truman’s effort toassume emergency economic pow-ers by trying to nationalize steelmills during the Korean War.

1964Congress inadvertently authorizesthe Vietnam War through the Gulfof Tonkin Resolution, which gaveLyndon B. Johnson the right touse force in response to what isclaimed to be an attack on U.S.ships in Asian waters.

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1970s-PresentResurgent Congress seeks tomake presidents more account-able to the legislative branch.

1973Congress passes War Powers Actallowing Congress to compel thewithdrawal of U.S. military forcesfrom foreign deployment againstthe president’s will.

Dec. 19, 1998House impeaches President BillClinton on charges of lying underoath and obstructing justice over hisaffair with White House intern Mon-ica Lewinsky. Senate acquits Clinton.

2001-2002President Bush strengthens execu-tive branch counterterrorism effortsafter the Sept. 11 terrorist attacks,winning expanded prosecutorialpowers from Congress and usingadministrative fiat to establish newrules for terrorism investigations.

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tles on an issue-by-issue basis andblocking him from assembling per-manent working majorities in eitherthe House or Senate. Myriad interestgroups further complicated the presi-dent’s task by weighing in on nation-

al debates and exerting strong pres-sure on various votes. 17

Bush spent the first few monthsof his administration following a pat-tern set by his immediate predeces-sors — identifying fundamental prob-lems and broaching solutions, while

leaving the details of how they wouldbe enacted to the legislative branch.But in contrast to Clinton, a perpet-ual campaigner who weighed in ona wide range of issues, Bush focusedonly on a small subset of priorities,such as education reform and tax cuts.

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Continued from p. 954

Although President Bush’s war on terrorism has raisedquestions about the boundaries of a president’s legalauthority in wartime, his actions fairly pale in com-

parison to those of Abraham Lincoln. The 16th president’s force-ful use of executive powers during the Civil War promptedcharges that he had turned the presidency into a military dic-tatorship.

Lincoln unilaterally suspended thewrit of habeas corpus, blockaded thenation’s southern coast and added40,000 enlisted men to the Army andNavy after Confederates bombardedFort Sumter in April 1861. He be-lieved that in times of crisis he hadconstitutional authority as comman-der-in-chief to prosecute the war with-out having to first seek congression-al approval. Indeed, in calling formilitary enlistments beyond existinglimits, Lincoln conceded he was over-stepping statutory authority. 1

Lincoln’s actions were particular-ly notable because as a Whig mem-ber of Congress he had criticized Pres-ident James K. Polk’s aggressiveleadership during the Mexican War,arguing that the Constitution gave“war-making power” to Congress.

Lincoln knew he was playing witha weak hand politically after onlywinning about 40 percent of the popular vote during the frag-mented 1860 election. However, he believed that the extraor-dinary circumstances of the Civil War justified re-thinking therules. By the time he was inaugurated in March 1861, six South-ern states had seceded. Lincoln judged the action treasonousand vowed to enforce federal laws in all of the states, as theConstitution enjoined him to do.

He served early notice that he would use his executive pow-ers forcefully. For instance, after issuing his first executive or-ders, he deliberately postponed a special session of Congressuntil July 4, even though the session had been called for inApril. When Congress arrived, Lincoln submitted his early ac-tions to the legislative branch for approval, and lawmakers rat-

ified them. In effect, Lincoln expected the legislative branch torubber stamp his policies, but he respected the Constitutionenough to submit his agenda to Congress for approval.

Some of Lincoln’s most controversial moves involved prose-cutorial powers. By suspending habeas corpus, he allowed cit-izens to be arrested without warrants and without authorities

having to offer proof to a court. In Sep-tember 1862, he began authorizing morepower for military authorities — againwithout consulting the legislative branch— by declaring all draft resisters and sus-pected Confederate sympathizers subjectto martial law and liable to be tried bymilitary tribunals.

Congress put up some resistance, chal-lenging the suspension of habeas corpusin an 1863 law that ordered the releaseof prisoners unless they were first in-dicted in civil courts. However, the leg-islature never succeeded in shifting thevenue from military courts to civiliancourts. The courts also refused to weak-en the expanded prosecutorial powerswhile the war was on. It was not untilafter the war, in 1866, that the SupremeCourt ruled, in Ex Parte Milligan, thatLincoln had violated constitutional guar-antees of a fair trail, and that militarycourts could only be used if civil courtshad been closed by the rebellion.

Scholars view Lincoln’s tenure as extraordinary, becausewhile he stretched the boundaries of the Constitution, he was,at times, scrupulous about maintaining some balance of power.He issued the “Emancipation Proclamation” in January 1863,then showed deference to the legislative branch by pushing itthrough Congress, arguing that freeing slaves in existing stateswas beyond the legislative branch’s enumerated powers.

Lincoln based the proclamation on his war powers, argu-ing it was necessary in order to suppress rebellion. Congressratified the 13th Amendment in 1865.

1 For background, see Michael Newman, ed., Congressional Quarterly’sGuide to the Presidency (1989), pp. 80-84.

Was Lincoln a Dictator?

The earliest known photo of Lincoln isbelieved to show him after he won his

first seat in Congress, in 1846.

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As leader of the first unified Repub-lican government in half a century(with the GOP in control of theHouse and an evenly divided Senatethat only later swung to Democraticcontrol), Bush did not have to pan-der to each Republican constituency.Only occasionally did he seek to re-assure core supporters by nominat-ing reliable conservatives, such asAshcroft.

“His style of governing and hisclaim to fame was to focus on a fewbig things and get them done,” saysTexas A&M political scientist Edwards.“It would be difficult to conclude theywere taking an expansive view.”

But after the terrorist attacks ex-posed a new and grave national se-curity threat, Bush changed course,using an almost corporate “top-down”management style that envisioned min-imal consultation with Congress. Forexample, he did not apprise memberswhen he established a “shadow gov-ernment” in secret locations along theEast Coast to ensure that the execu-tive branch could continue function-ing in the event of a nuclear attack.Some saw his moves to establishbroad institutional authority in nationalsecurity and international affairs as anattempt to re-establish “the imperialpresidency” that prevailed during WorldWar II and the Cold War, accordingto historian Arthur Schlesinger Jr. 18

Jackson’s Model

P residents always have had con-siderable elbowroom to define

their jobs, in part because of thevagueness of the Constitution. WhileCongress’ roles and responsibilities wereclearly spelled out in Article I, opin-ions differed on whether the chief ex-ecutive was a supreme leader or justan important part of a bigger planbuilt around the separation of pow-ers. Adding to the ambiguity is the

fact that the president is elected frommuch broader electoral coalitions thanrepresentatives and senators, who havenarrow constituencies in districts andstates and, thus, cannot represent thenation as a whole. 19

The murky questions have left thebalance of power between the branch-es in constant flux. Thomas Jefferson,elected president by the House of Rep-resentatives after a tie vote in 1801,regarded Congress, not the public, ashis primary constituency, though hestill held considerable sway as headof the new majority Democratic-Re-publican Party.

The concept of a strong chief ex-ecutive was first affirmed twodecades later by Andrew Jackson, whobuilt the first modern political-partyorganization and installed a spoilssystem that inserted allies into keygovernment jobs, triggering hugepower struggles. The party system al-lowed Jackson to appeal directly tothe public, thereby circumventing theelected representatives, when it suit-ed him.

Abraham Lincoln built on Jackson’smodel by using political patronage tohelp pass a constitutional amendmentabolishing slavery (he cut deals witha handful of House members to allowNevada to enter the union and pro-vide the deciding votes). As the CivilWar split the nation, Lincoln assertedthat the president was entitled to as-sume “war power” and did not needspecific constitutional authority to actat home or on foreign soil. (See side-bar, p. 956.)

In the early 20th century, TheodoreRoosevelt again adopted this model,after a change in public thinking fol-lowing the Spanish-American War ledthe once-isolationist U.S. governmentto pursue more foreign policy objec-tives. Woodrow Wilson refined andmodernized the approach, becomingthe first president to propose and draftlegislation, hold regular news confer-ences, lobby Congress and actively as-

sess public opinion. Though Congressgranted Wilson expanded war powersduring World War I, he failed to con-vince lawmakers of the need to jointhe League of Nations after the con-flict ended.

It was Franklin D. Roosevelt whomost reshaped the concept of presi-dential power to fit modern times.Elected as a rattled nation tried tocome to grips with the Great De-pression, Roosevelt won huge victo-ries as Congress ceded authority in fis-cal policy, banking, housing andagriculture. He also gained unprece-dented emergency authority to dis-pense economic relief and, later, toplan military actions in World War II.

Roosevelt’s tenure created the ex-pectation that the president should bea chief legislative leader. Dwight D.Eisenhower was able to centralizepower in the White House after Con-gress created the Council of Econom-ic Advisers and a National SecurityCouncil in the late 1940s. Congresscontinued to defer as the presidentgrew more involved in global affairs.The Marshall Plan to rebuild Europe,the Bretton Woods agreement on aninternational gold standard and send-ing troops to Korea were all execu-tive-branch initiatives.

In October 1962, John F. Kennedysimilarly was ready to act on his ownduring the Cuban missile crisis, as-serting that he had full authority ascommander-in-chief to take militaryaction against the island nation. Con-gress — worried that unilateral actionwould not reflect the collective judg-ment of the government and couldthreaten national prestige — passed aCuba Resolution that did not autho-rize presidential action but did expresssentiments in favor of keeping Cuba’sregime in check. When Kennedy actedthat month to block the delivery ofweapons to Cuba, he based his ac-tion on his constitutional authorities“as endorsed by the resolution of theCongress.”

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Congress Pushes Back

B ut the run of unchallenged WhiteHouse power ended during Pres-

ident Johnson’s administration. Despitegiving Johnson de facto power to fighta war in Vietnam through the 1964 Gulfof Tonkin Resolution, Congress — par-ticularly Senate Foreign Relations Com-mittee Chairman J. William Fulbright, D-Ark. — refused to accept the president’sdecision to send troops to the Domini-can Republic to suppress a revolt. Ful-bright later broke with precedent andheld televised hearings into the legiti-macy of military action in Vietnam.

Congress continued to assert itselfduring Richard M. Nixon’s terms, firstby reviewing U.S. overseas commit-ments and agreements. Nixon re-sponded by refusing to release con-gressionally approved funds forprograms he thought were wasteful orunnecessary. Congress struck back bypassing legislation restricting presi-dential autonomy — most notably the1973 War Powers Resolution — forc-ing the chief executive to obtain con-gressional blessing for extended mili-tary engagements. Congress also passedthe 1974 Budget Act, which gave thelegislative branch its own economicforecasts and deficit estimates, whichsometimes challenge the conclusionsof the White House Office of Man-agement and Budget.

Congress finally exercised its mostdramatic check on the president whenit began impeachment proceedingsagainst Nixon in connection with theburglary of the offices of the Demo-cratic National Committee in the Wa-tergate Hotel complex and the ensu-ing cover-up by the administration. TheHouse Judiciary Committee recom-mended Nixon be impeached. But heresigned before a full session of theHouse could vote on the issue.

Similarly, dramatic institutional ten-sions existed during Reagan’s terms,

PRESIDENTIAL POWER

Nat

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Arc

hiv

esBuilding Presidential Power

T he Constitution clearly spells out Congress’ roles and responsibilities but isless explicit about the role of the president. Consequently, chief executivesalways have had considerable elbowroom to define their jobs. Presidents

who played key roles in shaping the power of the office include:

Andrew Jackson (1829-37) — set the precedent for theconcept of a strong chief executive. Jackson built the firstmodern political-party organization and installed a spoils sys-tem that inserted allies into key government jobs, triggeringhuge power struggles. The party system allowed Jackson tocircumvent the elected representatives and appeal directlyto the public.

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Abraham Lincoln (1861-65) — built on Jackson’s modelby using political patronage to help pass a constitutional amend-ment abolishing slavery (he cut deals with a handful of Housemembers to allow Nevada to enter the union and provide thedeciding votes). When the Civil War split the nation, Lincolnasserted that the president was entitled to assume “war power”and did not need specific constitutional authority to act.

Woodrow Wilson (1913-21) — followed President TheodoreRoosevelt’s model and pursued more foreign-policy objec-tives. Wilson became the first president to propose and draftlegislation, hold regular news conferences, lobby Congressand actively assess public opinion. Though Congress grant-ed him expanded war powers during World War I, he failedto convince lawmakers to join the League of Nations.

Franklin D. Roosevelt (1933-45) — almost single-hand-edly reshaped the concept of presidential power to fit mod-ern times. Amid the Great Depression, Congress ceded au-thority to FDR in fiscal policy, banking, housing and agriculture,plus unprecedented emergency power to dispense economicrelief and later to plan military actions in World War II.

Harry S Truman (1945-53) — pushed through executive-branch initiatives such as the Marshall Plan to rebuild Eu-rope, the Bretton Woods agreement on an international goldstandard and sending troops to Korea. In one of the rare in-stances where a court ruled against presidential power, theSupreme Court in 1952 held that Truman had no legitimatepower to nationalize steel mills during the Korean War.

John F. Kennedy (1961-63) — prepared to act on his ownduring the 1962 Cuban missile crisis. Worried lawmakerspassed a resolution that did not authorize presidential ac-tion but supported keeping Cuba’s regime in check. WhenKennedy blocked the delivery of weapons to Cuba, he basedhis action on his constitutional authorities “as endorsed bythe resolution of the Congress.”


when congressional Democrats seizedon a sputtering economy to fight thepresident’s efforts to spend more ondefense without raising taxes. Congressalso used investigations and inquiriesto assert its power and undercut thechief executive during the Iran-Contrascandal, which greatly diminished Rea-gan’s public standing and effectivelyended his conservative revolution.

Increased partisanship and an as-sertive Congress frustrated the admin-istration of the first President GeorgeBush and, in many instances, Clinton,who fought a Republican majority inCongress by using the appropriationsprocess and the power of the veto.Scandals surrounding Clinton’s personalbehavior also led the House to im-peach Clinton, though he was acquit-ted in the subsequent Senate trial. 20

Some historians and commentatorssee the current President Bush as tryingto rekindle the spirit of President Jack-son by battling Congress over war pow-ers, advocating aggressive use of U.S.power and trying to redefine the judi-cial notions of the rights of the accused.Bush, like Jackson, also advocates anAmerica-first foreign policy, which re-jects internationalist solutions to dilem-mas like global warming and anti-bal-listic-missile buildups. Bush believes globalaccords to address such problems donot necessarily serve U.S. interests, eventhough he may support their principalobjectives. He has called for new ap-proaches that better serve U.S. needs. 21

But such an approach can poseperils. If Bush does not build a pop-ular response for his policies and can-not stop terrorism and other threats atthe U.S. borders, some fear a back-lash that could give rise to nativistfears and discrimination.

“We are at the zenith of our powerand influence,” former Clinton ad-ministration national security adviserSamuel Berger told Cox Newspapers.However, he said most of the direglobal threats — from terrorism tothe AIDS pandemic — are very dif-

ficult to confront alone. “We live ina world in which we can often geta lot more done by cooperating thanacting alone.” 22

“If Bush fails to contain terror andshape a popular response, you getsomething much tougher to dealwith,” said Walter Russell Mead, a his-torian at the Council on Foreign Re-lations. “I don’t think the political al-ternative is moderation.” 23

CURRENTSITUATION

Homeland Security

A s the 2002 midterm elections ap-proached, Congress had yet to

clear a major piece of unfinished Bush-agenda business: creation of a domes-tic security agency. The job of orga-nizing nearly two-dozen federal agenciesresponsible for counterterrorism into anew Cabinet-level department at firstseemed timely and non-controversial.In fact, many in Congress predictedthey would complete the authorizinglegislation by the symbolic first an-niversary of the Sept. 11 attacks.

Yet the administration’s insistenceon having more authority over the de-partment than it has over most otherfederal agencies turned the reorgani-zation into an unexpectedly bitter par-tisan battle with Senate Democrats, forwhom organized labor is a core con-stituency. Lawmakers abandoned theeffort in mid-October, after a standoffover procedural rules, and agreed toresume debate in a less-partisan en-vironment after the elections.

The controversy stemmed from theadministration’s insistence that Con-gress authorize it to develop a newpersonnel system for the department

that, among other things, would allowmanagers to fire unionized employeesor transfer some workers out of col-lective bargaining units on national se-curity grounds. The administration ex-plained it did not want individuals inimportant security positions walkingoff the job in labor disputes. The ad-ministration added that it needed moreflexibility than the civil service systemnow provides in order to recruit themost qualified job candidates and toquickly shift department resources tomeet changing terrorist threats.

But Democrats and their labor al-lies charged that the request amount-ed to a backdoor attempt to gut laborprotections. Their suspicions were root-ed partially in an administration deci-sion in January 2002 to remove some500 Justice Department workers en-gaged in terrorism investigations fromcollective bargaining units on similarnational security grounds. 24

“The unions have the votes and caninfluence the outcome,” says Sen.George V. Voinovich, R-Ohio, the Sen-ate’s resident expert on civil service,who is friendly with organized labor.“There has to be some reconciliation.”

The administration and unions haveclashed in the past over workplacerules. After Sept. 11, the White Houseand Congress heatedly debated legis-lation that established the Transporta-tion Security Administration. The WhiteHouse wanted the freedom to hire fed-eral employees to staff airport securi-ty checkpoints or to continue contractingfor private personnel. Pro-labor forcesprevailed, however, arguing that thecheckpoints should be run only by fed-eral workers. The transportation secu-rity agency was to become part of thenew homeland security department, andpolicymakers on both sides of the de-bate seemed to anticipate that unionswould try to organize approximately3,000 federal screeners due to be attheir posts by this November.

The administration is adamant thatanything short of full authority to make

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PRESIDENTIAL POWER

work rules would di-minish powers presi-dents have enjoyedsince the height of theCold War, when then-President Kennedy in1962 ordered person-nel flexibilities on na-tional security grounds.Senate Democratswant language thatwould add conditionsand force the presi-dent to justify shiftingemployees.

The dispute tookup some of the mostarcane aspects of thefederal work force.Administration officialscomplained about re-strictive union rulesthat, for example,would protect a hy-pothetical intoxicatedBorder Patrol agentwho allows a poten-tial terrorist to enterthe country from beingfired without a 30-daywritten notice, duringwhich time he wouldcontinue being paid.The administrationalso argued that workrules could prevent thenew department fromquickly deployingteams of workers to respond to bio-logical or chemical attacks. At the heartof the issue, however, was the per-ception that Congress was trying to mi-cromanage the executive branch.

Election Politics

I t was unclear how quickly anycompromise would emerge in the

aftermath of the stunning 2002 midtermelections. Resounding GOP victories

that will give the Republicans controlof the Senate were largely due to Bush’sactive campaigning on national secu-rity matters. Nowhere was this moreevident than in the Georgia Senaterace, in which Republican Rep. SaxbyChambliss defeated incumbent Demo-crat Sen. Max Cleland, a Vietnam Warhero who lost both legs and an armin that conflict. Chambliss character-ized Cleland’s votes against Bush’s re-organization plan and the work rulesas evidence that Cleland was soft onnational security matters.

The election resultsgave the White Housea chance to prevail onhomeland security leg-islation during a “lameduck” post-election ses-sion of the 107th Con-gress. Former Republi-can Rep. James Talent’svictory over incumbentDemocratic Sen. JeanCarnahan of Missouriin a special election al-lowed Talent to be cer-tified the victor and beseated immediately,before the start of the108th Congress. Thedeath of DemocraticSen. Paul Wellstone ofMinnesota days beforethe e l ec t i on a l soprompted IndependentGov. Jesse Ventura toappoint fellow Inde-pendent Dean Barkleyas an interim senator.

However, it was un-clear whether Senateleaders would seek todo more than pass along-term continuingresolution to ensure thatthe government keepsrunning until early 2003.

At a Nov. 7 pressconference, PresidentBush strongly urged the

Senate to pass a homeland security billbefore the 107th Congress adjourns.

On Nov. 10, Senate Republican leaderTrent Lott of Mississippi told NBC’s “Meetthe Press” that he hoped to get a home-land security bill passed within daysafter the Senate reconvened on Nov.12, following its election hiatus. But Lottdid not explain exactly how that couldbe achieved, since, technically, controlof the Senate would not shift to theGOP for another two weeks, when Tal-ent is to be sworn in. 25

Continued on p. 962

AFP

Photo

/John G

. M

aban

glo

National Guard soldiers patrol San Francisco’s Golden Gate Bridge onSept. 11, 2002. The administration says the unusual nature of the

terrorist threat justifies its aggressive stance, arguing it needsmaximum flexibility to confront a dangerous enemy.

no


At Issue:Did the president act responsibly in seeking authority to pre-emptively strike Iraq?

yesSEN. PAT ROBERTS, R-KAN.RANKING MEMBER, ARMED SERVICES SUBCOMMIT-TEE ON EMERGING THREATS AND CAPABILITIES

FROM A SPEECH TO THE SENATE, OCT. 9, 2002

the United Nations has completely and unequivocally failedto disarm Iraq consistent with its own resolutions. . . .Saddam Hussein has demonstrated ad nauseam over the

last 10 years that he will never permit the removal or destruc-tion of his weapons of mass destruction, [which] are the verysource of his authority. . . . He has [been] willing to use [such]weapons against his own countrymen and against other nations.And he rules by fear. So, . . . he [will never] disarm — ever.

Any notion that the United States itself is off-limits to amassive attack by groups cooperating with or supported byBaghdad should now be gone. It is [a] sanctuary for furtherterrorist attacks against our homeland. . . .

While “hard evidence” of an Iraqi role in the attacks of9/11 may be hard to prove . . . I do not think we can affordto be naive. Particularly in the Middle East, terror groups andstates work together when and where their interests are com-mon. And their intent is the destruction of the United States,the murder of our citizens and the elimination of our influ-ence, real and perceived. . . . If Iraq and other regimes areleft unchallenged, it is only a matter of time before they trans-fer the capability for weapons of mass destruction to a terror-ist cell that will use that capability against the United States.

The criminal-justice model of gathering evidence and pre-senting a case does not apply here. By the time you have ev-idence, it is too late. We will not lose buildings and thou-sands of people when that happens. We will lose whole citiesand hundreds of thousands of people.

In light of the events of Sept. 11, 2001, this body has morereason to support action against Iraq than it had in the winterof 1991. . . . because preventing weapons of mass destructionfrom being acquired by terrorist cells should be the No. 1policy priority of this government. This means neutralizingregimes that possess or seek such weapons and are predis-posed to harboring, assisting [and] sympathizing with the binLadens of the world.

American survival must be assured. It is a first priority. It isour highest agenda. . . . We must be pre-emptive. . . . Yes,pre-emptive, that new doctrine that is causing a rethink of ourforeign policy, our military strategy, our politics, our foreignrelations. It is a brand new world. It is an asymmetricalworld. This has nothing to do with partisan rivalry. This isabout our future, both immediate and long term. This is thestate of affairs we leave our children and our grandchildren.

SEN. ROBERT C. BYRD, D-W.VA.MEMBER, ARMED SERVICES SUBCOMMITTEE ONEMERGING THREATS AND CAPABILITIES

FROM A SPEECH TO THE SENATE, OCT. 3, 2002

we are rushing into war without fully discussing why,without thoroughly considering the consequences orwithout making any attempt to explore what steps

we might take to avert conflict.The newly bellicose mood that permeates this White House

. . . is clearly motivated by campaign politics. Republicans arealready running attack ads against Democrats on Iraq. . . . Be-fore risking the lives of American troops, all members of Con-gress — Democrats and Republicans alike — must overcomethe siren song of political polls and focus strictly on the mer-its, not the politics, of this most serious issue.

The resolution is . . . a product of presidential hubris. . . .[It] reinterprets the Constitution to suit the will of the execu-tive branch. It would give the president blanket authority tolaunch a unilateral, pre-emptive attack on a sovereign nationthat is perceived to be a threat. This is an unprecedented andunfounded interpretation of the president’s authority under theConstitution, [which] stands the charter of the United Nationson its head.

Article I, Section 8, of the Constitution grants Congress thepower to declare war and to call forth the militia “to . . .repel Invasions.” Nowhere is it written that the president hasthe authority to call forth the militia to pre-empt a perceivedthreat. . . .

Think for a moment of the precedent this resolution willset, not just for this president, but for future presidents. . . .Other nations will be able to hold up the United States as themodel to justify their military adventures. Do you not thinkthat India and Pakistan, China and Taiwan, Russia and Geor-gia are closely watching the outcome of this debate?

A war against Iraq will affect thousands, if not tens of thou-sands of lives, and perhaps alter the course of history [and] af-fect the balance of power in the Middle East. It is not a deci-sion to be taken in haste, under the glare of election-yearpolitics and the pressure of artificial deadlines. And yet any ob-server can see that that is exactly what the Senate is proposingto do.

Let us be convinced that a reinvigorated inspection regimecannot work before we move to any next step, and let us, ifwe must employ force, employ the most precise and limiteduse of force necessary to get the job done. Let us guardagainst the perils of haste, lest the Senate fall prey to the dan-gers of taking action that is both blind and improvident.

962 CQ Researcher

In the 108th Congress, Republicanswill have at least a 51-seat Senate ma-jority, pending the outcome of a runoffin Louisiana. They also will continueto have control of the House, havingadded at least four additional seats toits majority there. But because legis-lation cannot carry over into a newCongress, a new homeland securityreorganization bill — if it doesn’t clearCongress this fall — will have to bereintroduced and make its way throughboth chambers, giving both parties achance to reprise this year’s debate.

Some believe the White House didnot really want to compromise beforethe elections, preferring to charge thatDemocrats were endangering nation-al security by pandering to politicalallies. Others contend the WhiteHouse may have unwisely used thehomeland security bill as a vehicle forbroader civil service reforms.

“There’s no doubt this is all aboutpolitics,” says Ivo Daalder, senior fel-low at the Brookings Institution. “Ifthere is another terrorist attack, a lotof people are going to blame the Sen-ate and the White House for dicker-ing for months over how to reorga-nize instead of figuring out what a[counterterrorism] strategy should be.”

Should the personnel issue be set-tled, Congress would likely resolve re-maining differences over such mattersas intelligence-sharing and contractor in-surance and pass authorizing legislationcreating the third-largest Cabinet de-partment. The new homeland securitydepartment would contain 22 federalagencies, including the Federal Emer-gency Management Agency, Coast Guard,Secret Service, Immigration and Natu-ralization Service and Border Patrol. Itwould not include either the FBI or CIA,which the administration and Congressdecided should remain independent. Thenew department would have a fiscal2003 budget of $37.5 billion and a wor-force of 170,000 employees, not includingthe new airport screeners.

But even if the department is creat-ed, Congress and the White House willhave to agree on funding levels for newcounterterrorism initiatives. Increasedspending on borders, infrastructure pro-tection and “first responders” was to bedealt with in fiscal 2003 appropriationsbills. But partisan friction in Congressprevented the House and Senate fromcompleting action on most of those billsbefore the elections, freezing funding at2002 levels. Observers estimate that fur-ther skirmishes will prevent the new de-partment from being up and runningbefore late 2003, at best.

“They’re trying to balance every-thing these agencies already do withthe new mission of homeland securi-ty, and they have to deal with all ofthe politics. It’s an awesome task,” saysDonald Kettl, professor of public af-fairs and political science at the Uni-versity of Wisconsin-Madison.

Other Bush Moves

W hile the homeland security de-bate simmers, the administration

continues to assert executive branchprerogatives. In a series of recent state-ments issued when the president signsnew legislation into law, Bush has ad-vised Congress that he regards somemandated new requirements as “advi-sory,” meaning they can be overriddenby intrinsic executive branch authority.

The Federation of American Scien-tists’ Aftergood says requirements thatthe administration disclose informationto Congress or the public, in particular,are typically deflected by language stat-ing the administration is construing therequirement “in a matter consistent withthe constitutional authorities of the pres-ident to supervise the unitary executivebranch.” The boilerplate language alsostates the president can withhold infor-mation when disclosure may impair for-eign relations, national security and thepresident’s ability to do his job.

The administration has also beenflexing its muscle outside of nationalsecurity matters — particularly in theenvironmental-regulation arena. Sincetaking office, President Bush has usedhis executive power to reverse anarray of regulations and longstandingenvironmental-protection laws, usual-ly by issuing “guidance” on regulato-ry matters, often without oversight andwith little public notice. 26

Conservationists say such actions jeop-ardize progress made in restoring en-vironmental health since the 1970s, whenbedrock environmental-protection lawswere passed. They also contend thatthe president’s policies favor oil pro-ducers, loggers, electric utilities and otherindustrial sectors that have long chafedat environmental regulations.

Administration officials say many ofthe old rules harm the environmentand the economy. For instance, somerules delay removal of flammabledeadwood from forests, triggering dev-astating forest fires in the West lastsummer. Others bar such activities aslogging and oil and gas productionand snowmobile use on certain pub-lic lands.

Critics say the administration is pur-posely using the “guidance” mecha-nism to avoid exposure to public scruti-ny or debate. “Rulemaking requires apublic process, while guidance can hap-pen with almost no public process,”says Gregory Wetstone, director of pro-grams at the Natural Resources DefenseCouncil (NRDC), an environmental ad-vocacy group in New York City. “We’veseen big changes in forest policy andpolicy on snowmobiles in national parksthat weren’t even [advertised as] rule-makings.” Wetstone points to morethan 100 separate actions by six fed-eral agencies and the White Housetaken outside the regular rulemakingprocess.

This year, for example, the admin-istration lifted a ban on new oil andgas drilling in the Rocky Mountains,changed tough air-conditioner efficiency

PRESIDENTIAL POWER

Continued from p. 960


standards and formally designatedNevada’s Yucca Mountain as a nuclear-waste repository. In June, Bush an-nounced a plan that critics say wouldweaken enforcement of Clean Air Actpollution limits. In August, the ad-ministration opposed a sweeping pro-posal by the World Summit on Sus-tainable Development to increase theuse of renewable energy.

In addition to rewriting regulations,Bush has made other controversial en-vironmental decisions. Within weeksof taking office, he reversed a cam-paign pledge to push for limits on in-dustrial emissions of carbon dioxideand other “greenhouse gases,” whichmost scientists believe are causing apotentially catastrophic warming ofEarth’s atmosphere. 27 Bush also re-nounced the Kyoto Protocol, an in-ternational treaty calling for mandato-ry carbon emission reductions designedto slow global warming.

Environmentalists say Bush’s ap-proach constitutes an unprecedentedassault on the nation’s commitment toprotect the environment. “The Bushadministration has the worst record ofany presidential administration ever,”Wetstone says. “I don’t think we’veever seen a more sweeping or potentassault on our bedrock environmen-tal laws.”

Conservatives, on the other hand,extol Bush’s policies as innovative al-ternatives to bureaucratic red tape.“The Bush administration wants toemphasize the next generation of en-vironmental policy,” says Steven F.Hayward, a resident scholar at theAmerican Enterprise Institute (AEI),a conservative think tank. That pol-icy will produce “less of the old-style, command-and-control regula-tion” from Washington, he explains,and more use of markets, incentivesand regulatory flexibility to enablecompanies “to get around some ofthe rigidities in the way we’ve im-plemented environmental laws for thelast 30 years.”

OUTLOOKAnti-terror ‘Proxy’

B ecause the war on terrorism is open-ended and comprises so many as-

pects of domestic and foreign policy,many observers question whether theBush administration will use it as a proxyfor its entire agenda. The administrationcould cite national security to justify in-creasing police powers, changing laborlaws, building highways and bridges, re-forming immigration policies or advo-cating public-health initiatives like vac-cinating the population against smallpox.For that reason, analysts believe Con-gress and the executive branch must de-velop a comprehensive strategy delin-eating options and priorities, committingthe executive branch to a blueprint.

“Nowhere in the discussion abouthomeland security has there been any-thing indicating how the first additionaldollar is to be spent,” says Brookings’Daalder. “They have spent all this timetalking about how to reorganize the gov-ernment, but homeland security is aboutmore than just being in the same de-partment or wearing the same uniform.”

Foreign policy experts believe theadministration similarly may use thebroad war on terrorism to justify con-tinuing a policy of pre-emption thatincludes nation-building. While few ob-ject to overthrowing a despot like Hus-sein, they question whether the Amer-ican public will tolerate a protracted

military involvement that could costhundreds or thousands of lives.

“I don’t sense any appetite in theAmerican body politic for this kind oflarge imperial role,” says Harvard Uni-versity political scientist Stephen Walt,who is skeptical about the United States’ability to reconstruct countries. “In Iraq,we’re going to go in there and notbe able to get out.”

Realists like Walt believe there arelimits to America’s economic and mili-tary might, and that it may be moreprudent to play traditional enemies againsteach other to serve America’s interests.However, such sentiments conflict withso-called neoconservatives within the ad-ministration, who — encouraged by therapid U.S. victory in Afghanistan — be-lieve the president should flex his mus-cle in foreign affairs. 28

Regardless of which paths the ad-ministration chooses, it must continueto deal with congressional oversight ofits agenda and regularly consult withthe legislative branch. With Republicansin control of both houses of Congress,Bush will lead a unified governmentand be able to push a more ambitiousagenda. He likely will seek maximumflexibility in dealing with public laborunions and take other steps, such asindemnifying corporations that makeanti-terrorism equipment — like bomb-detection systems — from lawsuits.

“The American people have indicat-ed that they want the Congress, theHouse, the Senate and the president towork together to get things done,” Lottsaid after the elections. “People do wantsecurity here at home. They didn’t un-derstand why we couldn’t come to an

About the AuthorAdriel Bettelheim is a deputy editor at CQ Weekly, where he previouslycovered science and technology. He is the author of Aging in America Ato Z (CQ Press, 2001) and was a member of The CQ Researcher team thatwon the 1999 Society of Professional Journalists Award for Excellence for a10-part series on health care. He has a bachelor’s degree in chemistry fromCase Western Reserve University.

964 CQ Researcher

PRESIDENTIAL POWER

agreement on creating a new home-land security department. They haveconfidence in this president’s leadershipin fighting the war on terror and tak-ing on Al Qaeda. And they do wantCongress to support and work with ourpresident as the commander-in-chief.”

However, Democrats caution the elec-tion results in no way constitute a man-date and already are putting the ad-ministration on notice that they willvigorously challenge its policies. For in-stance, they could use Senate rules toput “holds” on controversial nomineesor filibuster legislation they deem ques-tionable. And experts believe they maypick up Republican allies if the ad-ministration interprets its victory toobroadly and is perceived as steppingon congressional toes.

“Right after Sept. 11 there was akind of patriotic silence that stood for,‘Tell us what to do, sir,’ ” says StephenFlynn, senior fellow for national secu-rity studies at the Council on ForeignRelations. “Now, there’s a pendulumswing, and the Congress could be well-positioned to say, ‘Yeah, but . . .’ ”

Notes

1 See Gebe Martinez, “Concerns Linger forLawmakers Following Difficult Vote for War,”CQ Weekly, Oct. 12, 2002, pp. 2671-2678.2 For background, see Kenneth Jost, “Politi-cal Scandals,” The CQ Researcher, May 27,1994, pp. 457-480.3 See Adriel Bettelheim, “Congress ChangingTone of Homeland Security Debate,” CQ Week-ly, Aug. 31, 2002, pp. 2222-2225.4 For background, see David Masci and PatrickMarshall, “Civil Liberties in Wartime,” The CQResearcher, Dec. 14, 2001, pp. 1017-1040, andPatrick Marshall, “Policing the Borders,” TheCQ Researcher, Feb. 22, 2002, pp. 145-168.5 For background, see Linda Feldmann andWarren Richey, “Power Shift to President MayStick,” The Christian Science Monitor, Oct. 3,2002, p. 1.6 See Adam Nagourney, “Republicans KeepHold on House,” The New York Times, Nov.6, 2002, p. A1.

7 See Steve Schultze, “Sensenbrenner WantsAnswers on Act,” Milwaukee Journal-Sen-tinel, Aug. 19, 2002, serial online atwww.jsonline.com.8 See Jeff Nesmith, “White House ProposesSecurity Information Rules,” Cox News Ser-vice, Nov. 1, 2002.9 For background, see David Masci, “Repa-rations Movement,” The CQ Researcher, June22, 1001, pp. 529-552.10 See “Rights and the New Reality,” Los An-geles Times, Sept. 10, 2002, p. B12.11 Quoted in David G. Savage, “A Year AfterAdministration Defends Secret Searches inTerror War Security,” Los Angeles Times, Sept.11, 2002, p. A9.12 See Jeffrey Rosen, “Liberty Wins, So Far,”The Washington Post, Sept. 15, 2002, p. B1.13 See Miles A. Pomper, “Senate Democratsin Disarray After Gephardt’s Deal on Iraq,”CQ Weekly, Oct. 5, 2002, pp. 2606-2610.14 See Jack Rakove, “Who Declares War?”The New York Times, Aug. 4, 2002, p. A13.15 See Mary Dalrymple, “Byrd’s Beloved Cham-ber Deaf To His Pleas for Delayed Vote,” CQWeekly, Oct. 12, 2002, p. 2674.16 See Neil A. Lewis, “Congress Lets Slip TheDogs of War,” The New York Times, Oct. 13,2002, p. WK5.17 For background, see Adriel Bettelheim,“State of the Presidency: What Bush Inher-its,” CQ Weekly, Jan. 20, 2001, pp. 162-173.

18 Arthur M. Schlesinger Jr., Imperial Presi-dency (1998).19 For background, see James A. Thurber, ed.,Divided Democracy: Cooperation and ConflictBetween the President and Congress (1991).20 For background, see Kenneth Jost, “Inde-pendent Counsels Re-examined,” The CQ Re-searcher, May 7, 1999, pp. 377-400.21 For background, see Mary H. Cooper,“Transatlantic Tensions,” The CQ Researcher,July 13, 2001, pp. 553-576.22 See Bob Deans, “Averse to Global Treaties,Is U.S. Embracing New Isolationism?” CoxNews Service, July 29, 2001.23 See Dana Milbank, “Another Ol’ Hickoryin the White House?” The Washington Post,Sept. 17, 2002, p. A19.24 See Adriel Bettelheim, “Work Rules ThrowWrench in Homeland Security Bill,” CQ Week-ly, Aug. 3, 2002, pp. 2101-2103.25 Quoted in David Firestone, “Lott Says Sen-ate Could Pass Security Bill Within Days,”The New York Times, Nov. 11, 2002.26 For background, see Mary H. Cooper, “Bushand the Environment,” The CQ Researcher,Oct. 25, 2002, pp. 865-896.27 For background, see Mary H. Cooper,“Global Warming Treaty,” The CQ Researcher,Jan. 26, 2001, pp. 41-64.28 See Miles A. Pomper, “Philosophical Con-flicts Complicate Iraq Debate,” CQ Weekly,Aug. 3, 2002, pp. 2096-2100.

FOR MORE INFORMATIONAmerican Bar Association, 750 North Lake Shore Dr. Chicago, IL, 60611; (312)988-5000; www.abanet.org. The nation’s leading organization of lawyers studiesmajor government activities that affect the legal profession.

American Enterprise Institute, 1150 17th St., N.W., Washington, DC 20036;(202) 862-5800; www.aei.org. A public policy think tank “dedicated to preservingand strengthening” limited government, private enterprise, vital cultural and politi-cal institutions, and a strong foreign policy and national defense.

The Brookings Institution, 1775 Massachusetts Ave., N.W., Washington, DC20036; (202) 797-6000; www.brook.edu. An independent, nonpartisan think tankdevoted to research, analysis and education on public policy issues and gover-nance, with a liberal social-policy inclination.

Council on Foreign Relations, 58 E. 68th St., NY 10021; (212) 434-9888;www.cfr.org A nonpartisan organization dedicated to increasing America’s under-standing of the world and contributing ideas to U.S. foreign policy.

Federation of American Scientists, 1717 K St., N.W., Suite 209, Washington, DC20036; (202) 546-3300; www.fas.org. Founded in 1945 as the Federation of Atom-ic Scientists, FAS is dedicated to ending the worldwide arms race and avoidingthe use of nuclear weapons for any purpose.

FOR MORE INFORMATION


Books

Greenstein, Fred I., The Presidential Difference: Lead-ership Style from FDR to Clinton, Princeton UniversityPress, 2001.A prominent presidential scholar analyzes 11 chief execu-

tives in areas such as communication, organization, politicalskill, vision and courage.

Jones, Charles O., Separate But Equal Branches: Con-gress and the Presidency, Chatham House, 2000.An insightful look at how the system of checks and bal-

ances works, with particularly good chapters on the Carterand Reagan presidencies.

Jones, Gordon S., and John A. Marini (eds.), The Impe-rial Congress: Crisis in the Separation of Powers, WorldAlmanac Books, 1990.A series of lively and opinionated essays that assert Con-

gress is taking over the powers of the presidency. Most seemmore intent on bashing the legislative branch than explain-ing the nuances in the Constitution that gave rise to the sys-tem of checks and balances.

Neustadt, Richard E., Presidential Power and ModernPresidents, Free Press, 1991.Another classic study of the presidency argues that presi-

dents who lead by persuasion, as opposed to executive pow-ers bestowed by the Constitution, are the most successful.

Schlesinger, Arthur M. Jr., Imperial Presidency, ReplicaBooks, 1998.This classic political-science text by the former Kennedy

administration aide argues presidential power increases anddecreases naturally, peaking during times of crisis.

Articles

“George Bush and Iraq: Your Moves,” The Economist,Sept. 21, 2002, p. 27.The president’s speech to the United Nations about Iraq may

transform domestic politics as well as international diplomacy.

“The Imperial Presidency,” The Economist, Nov. 3, 2001.Under the Bush administration, the United States is wit-

nessing the most dramatic expansion in presidential powerin a generation.

Brill, Steven, “On Guard, a Year Later,” Newsweek, Sept.16, 2002, pp. 38-41.Balancing safety with civil liberties poses a difficult prob-

lem for the Office of Homeland Security.

Peterson, Peter G., “Public Diplomacy and the War onTerrorism,” Foreign Affairs, Sept. 1, 2002, p. 74.Faced with the multifront war that is terrorism, the presi-

dent understands that changes are required in the executivepower structure he inherited.

Pomper, Miles A., “Lawmakers Pushing Back From QuickVote on Iraq,” CQ Weekly, Sept. 14, 2002, pp. 2352-2357.Congress confronts the war question and finds it has to

make up its mind sooner rather than later.

Rogers, David, “Executive Privilege: Assertive PresidentEngineers a Shift In Capital’s Power,” The Wall StreetJournal, Oct. 22, 2002, p. A1.George W. Bush, with the Sept. 11 terrorist attacks as a

backdrop, is changing the balance of power between theWhite House and Congress.

Walsh, Kenneth T., “The Cheney Factor,” U.S. News &World Report, March 25, 2002, pp. 16-20.The vice president’s hawkish approach puts him at odds

with more moderate voices. But it appears his views arecarrying the day.

Reports and Studies

“Assessing the Department of Homeland Security,” Brook-ings Institution, July 2000.A team of scholars from the left-of-center think tank con-

cludes that, while the idea of creating a homeland securitydepartment is sound, Congress should modify key elementsof the president’s plan.

“Homeland Security: Human Resources Management,”Congressional Research Service, RL31500, Sept. 26, 2002.A lengthy analysis of proposed personnel provisions and

work rules in House and Senate versions of homeland-se-curity legislation.

“Homeland Security: Key Elements to Unify Efforts AreUnderway but Uncertainty Remains,” General Account-ing Office, GAO-02-610, June 2002.Congress’ investigative arm assesses the governmentwide

reorganization and notes it lacks a unified approach. Alsodiscusses uncertainty about national priorities, roles, respon-sibilities and funding.

Bremmer, L. Paul III, and Edwin Meese III, “Defendingthe American Homeland,” The Heritage Foundation, 2002.A comprehensive study on homeland-security vulnerabili-

ties and requirements considers recommendations of a taskforce convened by the conservative think tank.

Selected Sources

Bibliography

966 CQ Researcher

Foreign Intelligence Surveillance Court

Bravin, Jess, and Gary Fields, “Court Says ProsecutorsCan’t Run Espionage Probes,” The Wall Street Journal,Aug. 23, 2002, p. A4.In its first-ever published opinion, the U.S. Foreign Intel-

ligence Surveillance Court said the Bush administration’s se-curity plans wouldn’t protect the privacy of U.S. citizens.

Podesta, John, and Peter Swire, “Speaking Out AboutWiretaps,” The Washington Post, Aug. 30, 2002, p. A23.The Foreign Intelligence Surveillance Court released an

opinion that placed limits on the way the Justice Depart-ment can conduct foreign intelligence searches on U.S. soil.

Shenon, Philip, “ ‘Paper Court’ Comes to Life Over Se-cret Tribunal’s Ruling on Post-9/11 Police Powers,” TheNew York Times, Aug. 27, 2002, p. A12.A super-secret intelligence appeals court rules on the ex-

tent of the powers that should be granted to the Justice De-partment in the aftermath of the Sept. 11 attacks.

Shenon, Philip, “Secret Court Says FBI Aides Misled Judgesin 75 Cases,” The New York Times, Aug. 23, 2002, p. A1.An opinion issued by the Foreign Intelligence Surveillance

Court is stinging in its criticism of the F.B.I. and the JusticeDepartment.

Willing, Richard, “Justice Dept. Says Ruling ImpedesSpying,” USA Today, Sept. 11, 2002, p. A3.Some say a ruling issued by a secret foreign intelligence

court could undermine national security by making spyingon U.S.-based terrorism suspects “unworkable.”

Homeland Security Department

Daalder, Ivo H., and I. M. Destler, “Behind America’sFront Lines,” Brookings Review, July 1, 2002, p. 17.The Bush administration has established a focal point for

coordination of homeland security efforts: the Executive Of-fice of the President.

Firestone, David, “Threats and Responses: Domestic Se-curity,” The New York Times, Oct. 16, 2002, p. A15.Debate over homeland security returned to a boil as the

White House and Senate Democrats exchanged criticism overwho was stalling creation of the new agency.

Hall, Mimi, “Challenges Stack up for Homeland Securi-ty,” USA Today, Oct. 15, 2002, p. A9.A plan to build a new department of homeland security

— the Bush administration’s signature proposal to addressterrorism at home — is languishing in Congress.

O’Beirne, Kate, “The DHS Debacle,” National Review,Aug. 12, 2002, p. 24.It is clear that President Bush’s plan to toss 22 agencies

into a grand new enterprise dedicated to homeland securi-ty will keep conservative critics and congressional meddlersbusy for years to come.

O’Hanlon, Michael, “Protecting the American Homeland,”Brookings Review, July 1, 2002, p. 13.After creating the Office of Homeland Security, some ex-

perts question how well the Bush administration is improvingprotection of the U.S. against terrorist attacks.

Power to Declare War on Iraq

Hirsh, Michael, “Bush and the World,” Foreign Affairs,Sept. 1, 2002, p. 18.The president’s doctrine of isolating Iraq, Iran, and North

Korea as an “axis of evil” has alienated allies and set thetable for war with Iraq.

Lewis, Neil A., “Congress Lets Slip The Dogs of War,”The New York Times, Oct. 13, 2002, p. A5.In the congressional debate over empowering President

Bush to wage war against Iraq, much of the argument cen-tered on what would constitute too much power.

Rorty, Richard, “Fighting Terrorism With Democracy,”The Nation, Oct. 21, 2002, p. 11.Some feel the president must have the right to keep any-

thing he wishes secret — even his reasons for choosing onetime or place for making war rather than another.

VandeHei, Jim, and Juliet Eilperin, “Congress Passes IraqResolution; Overwhelming Approval Gives Bush Au-thority to Attack Unilaterally,” The Washington Post,Oct. 11, 2002, p. A1.With his congressional mandate, the president needs no

further approval to deploy troops, order air-strikes and wagea ground war with Iraq.

Presidential Power in War on Terror

Dunham, Richard S., “The White House: Too Successfulfor Its Own Good?” BusinessWeek, Feb. 18, 2002, p. 48.The White House offensive to reverse what it sees as an

erosion of presidential power will give the president the au-thority he needs to prosecute the war against terror.

Milbank, Dana, “In War, It’s Power to the President; In Af-termath of Attacks, Bush White House Claims Authority Ri-valing FDR’s,” The Washington Post, Nov. 20, 2001, p. A1.Presidential power ebbs and flows historically and, by ne-

cessity, typically heightens during times of war because of

The Next Step:Additional Articles from Current Periodicals


the need for a unifying figure in government.

Rosen, Jeffrey, “Liberty Wins — So Far; Bush Runs IntoChecks and Balances in Demanding New Powers,” TheWashington Post, Sept. 15, 2002, p. B1.United States courts and Congress are rejecting some of

the president’s most extreme claims to expanded executiveauthority in wartime.

Schake, Kori, and Klaus Becher, “How America ShouldLead,” Policy Review, Aug. 1, 2002, p. 3.President Bush has shown that expanded authority and a

clear-sighted vision for action are two essential tools in win-ning American support for the war on terrorism.

Presidential Records Act

Baker, Russ, “What Are They Hiding?” The Nation, Feb.25, 2002, p. A11.The Bush administration is blocking the scheduled release of

Regan-era documents that were supposed to be released last year.

Clymer, Adam, “House Panel Seeks Release of PresidentialPapers,” The New York Times, Oct. 10, 2002, p. A32.A House committee voted to overturn President Bush’s ex-

ecutive order that delayed release of President Ronald Rea-gan’s papers.

Kulman, Linda, “Who Owns History?” U.S. News & WorldReport, April 29, 2002, p. 51.Historians use the Presidential Records Act to provide them

with insight on historical matters, but the Bush administra-tion is resisting turning over some information.

Lardner Jr., George, “Bill Aimed at Reversing Bush Orderon Records,” The Washington Post, April 12, 2002, p. A8.Members of Congress say Bush’s refusal to turn over records

and information is a violation of “the letter and spirit” ofthe Presidential Records Act of 1978.

USA Patriot Act

Clymer, Adam, “Justice Dept. Balks at Effort To StudyAntiterror Powers,” The New York Times, Aug. 15, 2002,p. A21.The Justice Department has resisted efforts by outside agen-

cies to examine the workings and effectiveness of its partin the war on terror.

Cohen, Adam, et al., “Rough Justice,” Time, Dec. 10, 2001,p. 30.Civil libertarians are worried that the Bush administration’s

post-Sept. 11 move towards restricting some civil rights willdo irreparable harm.

Cohen, Patricia, “9/11 Law Means More Snooping? OrMaybe Less?” The New York Times, Sept. 7, 2002, p. A9.Civil libertarians, newspapers and others warn that the USA

Patriot Act gives government worrisome new powers to pryinto people’s private lives.

Cole, David, “Enemy Aliens and American Freedoms,”The Nation, Sept. 23, 2002, p. 20.The most troubling provisions of the USA Patriot Act, en-

acted within six weeks of Sept. 11, are reserved for non-cit-izens.

Gavin, Robert, “Regional Report: Frenzy to Adopt Ter-rorism Laws Starts to Recede,” The Wall Street Journal,March 27, 2002, p. B1.With the passage of time since Sept. 11 some say there is

a greater willingness to narrow or reject expansions of gov-ernment power like the USA Patriot Act.

Rosen, Jeffrey, “The Difficult Balance Between Libertyand Security,” The New York Times, Oct. 6, 2002, p. A13.The Supreme Court is considering the USA Patriot Act,

which Congress passed a year ago and which gives the Unit-ed States broad powers to detain suspected criminals.

CITING THE CQ RESEARCHER

Sample formats for citing these reports in a bibliography include the ones listed below. Preferred styles

and formats vary, so please check with your instructor or professor.

MLA STYLE

Jost, Kenneth. “Rethinking the Death Penalty.” The CQ Researcher, 16 Nov. 2001: 945-968.

APA STYLE

Jost, K. (2001, Nov. 16). Rethinking the death penalty. The CQ Researcher, 11, 945-968.

CHICAGO STYLE

Jost, Kenneth. “Rethinking the Death Penalty.” The CQ Researcher, 11 (Nov. 16, 2001): 945-968.

Back IssuesThe CQ Researcher offers in-depth coverage of many key areas.

Back issues are $10 for subscribers, $20 for non-subscribers.Quantity discounts available. Call (800) 638-1710 to order back issues.

Or call for a free CQ Researcher Web trial!Online access provides:

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CHILDREN/YOUTHCyber-Predators, March 2002Preventing Teen Drug Use, March 2002Sexual Abuse and the Clergy, May 2002

CRIMINAL JUSTICEWar on Terrorism, October 2001Rethinking the Death Penalty, Nov. 2001Intelligence Reforms, January 2002Cyber-Crime, April 2002Corporate Crime, October 2002

EDUCATIONGrade Inflation, June 2002Single-Sex Schools, July 2002Teaching Math and Science, Sept. 2002

ENVIRONMENTInvasive Species, October 2001Energy and Security, February 2002Threatened Fisheries, August 2002Bush and the Environment, October 2002

HEALTH CARE AND MEDICINEChronic Fatigue Syndrome, April 2002Covering the Uninsured, June 2002Nursing Shortage, September 2002Food Safety, November 2002

LEGAL ISSUESPolicing the Borders, February 2002Accountants Under Fire, March 2002Three-Strikes Laws, May 2002Religion in the Workplace, August 2002

MODERN CULTUREFuture Job Market, January 2002Archaeology Today, May 2002Retirement Security, May 2002Living-Wage Movement, September 2002

POLITICS/GOVERNMENTU.S.-Russia Relations, January 2002Weapons of Mass Destruction, March 2002Emerging India, April 2002

Farming Subsidies, May 2002Prospects for Mideast Peace, August 2002New Defense Priorities, September 2002Confronting Iraq, October 2002

TRANSPORTATIONAuto Industry’s Future, January 2000Auto Safety, October 2001Future of the Airline Industry, June 2002Future of Amtrak, October 2002

Future Topics

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