THE NEW FEDERALISTS : Tension from Competing Powers: Reconciling the Pre...

THE NEW FEDERALISTS : Tension from Competing Powers: Reconciling the Pre...: Tension from Competing Powers:  Reconciling the President’s Power as Commander in Chief vs. Congressional Power to Declare War      The rece...

Tension from Competing Powers: Reconciling the President’s Power as Commander in Chief vs. Congressional Power to Declare War

      The recent military action taken by President Donald Trump against Iran have once again brought attention to the ongoing debate regarding the legitimacy and constitutionality of the President's power to initiate and execute military action without an official congressional declaration of war.  The tension arises from the competition between the power conferred to the President as Commander in Chief, vs. that of Congress to declare war, and whether the President can execute military action without prior Congressional approval.

     The short answer is yes.  Article II, Section 2 of the Constitution clearly states that “The President shall be Commander in Chief of the Army and Navy of the United States.” This clause, which is often referred to as the Commander in Chief clause grants the president supreme operational command over the military. As Commander in Chief, the president has the constitutional authority to direct military strategy, oversee troop deployment and respond to threats against the nation.   

     This Presidential power has been exercised by a number of presidents throughout U.S. history.  President Harry S. Truman for example, committed U.S. forces to the Korean peninsula under the authority of a United Nations resolution, without any formal declaration from Congress.  In fact, Congress never officially declared war on Korea, even though President Truman committed hundreds of thousands of U.S. troops during a 3-year period that resulted in 35,000 deaths. 

     Like his predecessor, President Lindon B. Johnson committed more than 500,000 troops to the Vietnam conflict without a formal Congressional declaration of war.  The “Vietnam War” was never a war.  It was technically classified as a "police action" from a constitutional perspective.  Close to 60,000 American soldiers lost their lives in that conflict.    

Tension from Competing Powers 

     Where does the tension come from?  Looking to the past for answers, the vision of the Framers was to prevent tyranny; whether that came from the many, or from one individual.  They feared a king-like President that might abuse his power as Commander in Chief and unilaterally declare war on other nations. On the other hand, they were concerned about a weak President who would not be able to execute his authority as Commander in Chief, or fulfill his Oath to “Preserve, Protect and Defend the Constitution of the United States” (U.S. Constitution, Article II, Section 1).  

     To strike the proper balance, the Framers exclusively reserved the power to declare war to Congress, under Article I, Section 8 of the Constitution.  It reads:  “The Congress shall have the power…. To Declare War, grant letters of Marque and Reprisal, and make Rules concerning captures on Land and Water;”.  At the same time, they conferred in the President, the constitutional authority as "Commander in Chief", to execute his supreme authority over the military.“ These competing powers are hard to reconcile.  

The War Powers Resolution of 1973 

     The War Powers Resolution of 1973, also known as the War Powers Act, reconciles these competing tensions by serving as a check on Presidential "War Powers" by establishing a framework that makes it possible for the President to execute his “Commander in Chief” powers and fulfill his constitutional oath, while preserving constitutional legitimacy.  

     Congress passed the War Powers Resolution in 1973 during the Nixon Administration.  The Resolution sought to fulfill the intent of the framers of the Constitution of the United States regarding the President’s power as Commander in Chief, and his authority and constitutional mandate to initiate military actions without prior approval or authorization from Congress. The War Powers Resolution requires that the President whenever possible, consult with Congress before introducing United States Armed Forces into hostilities or into "situations where imminent involvement is clearly indicated by the circumstances." It further provides that in the absence of a declaration of war by the Congress, any use or deployment of U.S. armed forces be reported to the Speaker of the House of Representatives and the President Pro Tempore of the Senate, in writing, within 48 hours of the action.   

Discussion 

     Above all, the Framers were concerned with tyranny; either from the majority or from one individual.  They were weary of monarchical power and thus saw to it that the President would not have absolute power to unilaterally declare war on another nation. At the same time, the Framers also envisioned a strong President who would be able to execute his authority as Commander in Chief and fulfill his Oath to “Preserve, Protect and Defend the Constitution of the United States”.  Staying true to the spirit of the Framers, Congress passed the War Powers Act, not to eliminate the president’s authority as Commander in Chief, but rather to establish a procedural framework for the execution of that power. The War Powers Act is that check between the competing congressional power found in Article I and the Presidential power in Article II, ensuring that legislative oversight and constitutional integrity are preserved.  

The Electoral College: A Remedy for the Ills of Direct Democracy.

Every electoral year, the debate over the Electoral College seems to renew itself and gain added traction.  This past election was no different, though given the current state of affairs in the United States, in the mist of one of the most politically polarized periods in the 246-year history of the republic, the conversation has taken on a much central and greater importance.  Not surprisingly, much of the debate is driven by lack of understanding of the electoral college, and its foundational purpose and continued importance in the preservation of the American republic-a condition that has only been made worse by mainstream media and the unfiltered spaces of social media. 

Sean Wilentz, Professor of American History at Princeton University, explains that the Founding Fathers and Framers of our Constitution were divided over how the young nation should elect its executive. There were some who understood the importance of a strong executive, to be the leader of the government.  Others on the other hand, were weary of giving one man, too much power, whereby they might find themselves having to deal with a situation similar to that from which they had removed themselves, just a few years prior, in their quest for independence from tyrannical King George III of Great Britain.  

Wilentz writes that while “Some of the ablest and most influential delegates, including James Madison, were in favor of a system in which the executive would be elected directly by the people, the majority of the convention “rejected direct election” because they believed that the people were not capable of deciding on such an important matter.  After much debate, both sides were able to reach a compromise which would offer some protection from the ills of direct democracy, while still providing room for popular sovereignty. 

Though the history of the Electoral College is too long and far too complex to discuss in this short essay, it is worth noting that the Electoral College has its constitutional foundations in the 12^th and 23^rd amendments of the Constitution.  The 12th Amendment outlines the procedural nature of the Electoral College, while the 23rd Amendment, grants the District of Columbia, proportional electoral votes, for the purpose of electing the President. 

What is the foundational purpose of the Electoral College, and why does it continue to be very important in the preservation of the American republic?  The foundational purpose of the electoral college was to provide for a republican remedy to the inherent pitfalls of direct democracy.   The Framers believed that having a group of electors; each chosen by their respective states, who would themselves, not be members of government, nor elected representatives in congress, would greatly reduce the chances of partisan manipulation or electoral fraud. 

The Electoral College was also designed to ensure that the smaller states of the Union would not be unfairly overshadowed by the larger states (in terms of population), and in any given election, could be just as important to the outcome, as would a large State.  This is because under the Electoral College, each state is granted a total number of votes, equal to the number of representatives in the House of Representatives, plus two more votes for each of its two Senators in the Senate; with no state having less than three (including the District of Columbia).  

Under this system, a state like Wyoming, though much smaller in population, has a more equitable voice when it comes to electing the President.  Otherwise, States like California and Texas, whose populations are fifty to sixty times that of Wyoming, would naturally always enjoy an unfair and insurmountable advantage over smaller states, in influencing the election of a President.  This scenario concerned the Framers.  They feared that under such a system, presidential candidates would have little incentive to tend to the needs of the smaller states and thus, would only concern themselves with campaigning and trying to capture the votes of states with large populations. 

Still, there are critics of the Electoral College who argue that the Electoral College is not democratic.  They point to the “winner take all” feature of the Electoral College, because it has produced a scenario where a candidate can win the popular vote, but lose the election in the electoral vote.  This is because with the exception of Maine and Nebraska (who have a proportional system to allocate their electoral votes), in the other 48 states, the candidate who wins the popular vote in that State, is awarded all of the electoral votes for that State, while the votes of the losing candidate are-for all intents and purposes-discarded.  

Critics contend that this system is inherently undemocratic.  Yet, these critics seem to forget how the Electoral College came to be.  The Electoral College was the result of a compromise between those states who wanted the President elected by Congress, and those states who were lobbying for election by popular vote.   The result was the Electoral College, which also ensured that states with smaller populations would be equitably represented in the election of the president.  This is why the Electoral College exists only for the purpose of electing the President.  Every other candidate for public office in the United States (with minor exceptions) is elected directly by popular vote.  

Why then, did the Framers insist on this "unique" system, for electing their President?  The Framers were very weary of a national government becoming so powerful that it would trample on states' sovereignty.  Therefore, they wanted to ensure that the system for electing the President would produce a President who represented the entire Union, not just the larger states or a handful of states.  The Framers were also concerned about the dangers of "factions" as  noted by James Madison (the principal author of the Constitution) in Federalist 10.  The Electoral College ensures that the candidate elected enjoys "national" support from the citizenry, not just support from citizens of a sector of the country or from a few states who may have large populations.  

One idea that has gained more traction lately is whether the Electoral College should be replaced by the National Popular Vote Interstate Compact.  However, this argument fails to consider that under the NPV Interstate Compact, the "will of the people" in in small states like Mississippi, Nebraska, Colorado, Rhode Island, will become irrelevant, and the electoral outcome will be decided by the larger states. California, Texas, and New York,  will ultimately decide every presidential election.  This de facto tyranny of the majority could jeopardize the sustainability of the union and the republic-precisely what the founding fathers and the framers feared and wanted so much to avoid.  

Revisiting Habermas' Public Sphere: Welcome to the Virtual Sphere

     It’s been more than a half century since the German philosopher Jurgen Habermas first introduced the concept of the Public Sphere in his book titled The Structural Transformation of the Public Sphere: An inquiry into a Category of Bourgeois Society. Habermas coined the term “Public Sphere” to refer to the discussions and interaction that took place between merchants and among citizens of 18th century Europe.  

     These discussions about the happenings of the day, often took place in coffee houses, taverns, town squares, as well as in books, pamphlets and newspapers.  With the rise of liberal thinking, particularly the works of Hobbes, Locke, Montesquieu, Rousseau, and others,  the feudal public sphere transformed into what Habermas called the bourgeois public sphere-which described a place where individuals could discuss and debate on the issues of the time, not only politics and commerce but also philosophy and the arts. 

     Of course, technology, the industrial revolution, and many other factors transformed the public sphere.  One of the most influential factors being woman’s suffrage movements in the late 19th and 20th century, particularly in the United States.  The influence of radio and television, the global conflicts of the 20th century, the civil rights and other movements during the latter half of the 20th century, the rise of multilateralism, globalization, terrorism, and of course, cable television and mass media, all significantly impacted the evolution of the public sphere. 

     This is not surprising.  In fact, Habermas himself described how the bourgeois public sphere of the 18th and 19th century, would give way to a “mass-media” driven public sphere, driven not by rational communication but rather by public relations, commercial and partisan interests, and consumerism.  This sounds about right, if we think about today’s public sphere.  However, today’s public sphere is fundamentally different from what Habermas envisioned.

     Jorge Adriano Lubenow (2012) in his article on the Public Sphere 50 years later, argues that “what is configured in the manipulated public sphere is just an “opinion atmosphere”, in general, manipulated mostly by the calculation of socio-psychological tendencies which, however, provoke expected reactions.” Lubenow adds that “…the mass media hierarchize the horizon of possible communications, establish obstacles and substitute the structures of communication that had enabled the public discussion”.  Finally, Lubenow points to two very important necessary conditions that need to be present in a Habermasian public sphere.  “…a self-regulating media system needs to maintain its independence with their surrounding while it links political communication in public sphere with civil society and political center; the inclusive civil society needs to encourage citizens to participate and respond in public discourse that, in turn, cannot degenerate into a mode of colonized communication”. 

     Today’s public sphere seems to mirror Lubenow’s description.  Today’s public sphere is nothing more than an echo chamber of opinions, mostly void of reason, rational thought, correctness or even truth.  The rational communication element of the Habermasian public sphere has been (as Lubenow points out) hindered by mainstream media.  Not only is the media not independent, they have adopted the role of shapers of reality; through framing, priming, data manipulation, among other tactics. 

     Worse and perhaps more dangerous, is the role of the citizen in today’s social media public sphere.  According to the Pew Research Center, almost 7 out of 10 Americans report using Facebook (68%) and of those, roughly two-thirds report using Facebook on a daily basis.  This is the public sphere in 2020! The “Virtual Sphere”.   

     Surely, I am oversimplifying things a bit here, but the truth is, Habermas’ public sphere is now a virtual one.  Habermas’ (1991) concept of the public sphere was based on the element of “publicity”.  What was deemed public or what made it public?  He argued in many ways, that if something was “open or accessible to all”, that made it public.  In this sense, Habermas’ notion of the public sphere would be consistent with what we see today, and could even argue that at least in that context, today’s public sphere is more open and “available to all” than it ever was; which is good.  After all, the more accessible information is, the better-informed people will be to make informed rational decisions.   

     However, what Habermas determined as rational communication is not what is taking place in today’s virtual public sphere.  Sharing and “liking”, have become impulses void of rationality.  If we recognize the source as one that we agree with or which confirms our worldview, we like it and share it (which in today’s virtual public sphere has become tantamount to agreeing with it).  But on the other hand, if we don’t, we either delete it, discredit the source, or worse “shoot the messenger” which often means being insulted, mocked, and at times, removed from the conversation.  No longer are we Habermasian “spectators” waiting to be fed by the media.  We are now active participants, each of us creating our own reality. We now have this power.    

     This accessibility has seen the rational discourse and debate of the old public sphere, replaced with “noise”.  Senseless memes, “one-liners”, half-truths (and many lies), vulgarity, insults, and of course, cheap partisan propaganda.  But for the first time in the evolution of the public sphere, we now have the power to control, not only what others see and hear, but in our use of #hashtags and other tools, we now have the power to influence and manipulate how others think and make sense of their realities. 

     This could have (and it is already having) dire economic, political, and even institutional consequences for the world.  For the U.S. there are constitutional implications as well.  The virtual public sphere threatens the very foundations of the American republic. Voting in particular, but beyond that, the principles of federalism and states’ rights vis-à-vis the federal government, will be blurred in this virtual public sphere.  It will not matter what Virginians or Texans want.  It will only matter what virtual America wants.  This is a dangerous predicament.  

The Uniqueness of the 2nd Amendment

The 2nd Amendment of the U.S. Constitution has become one of the most debated and discussed of all amendments, particularly in the wake of the horrifying trend of mass shootings in public places, schools, and university campuses, across the U.S. and the world.  There are compelling arguments on both sides of the issue, as to whether or not, the 2nd amendment should be abolished.  These arguments are the source of much heated debate between Congress and the President, (who in fact proclaimed in his State of the Union Address last night, that he would continue to defend the 2nd Amendment).

2nd Amendment cases have been brought up to the U.S. Supreme Court for more than a century.  Dating back to Presser v. Illinois (1886), the Supreme Court held that the Second Amendment prevented the states from “prohibiting the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security.” More recently in District of Columbia v. Heller (2008), the High Court cited self-defense was the “central component” of the amendment and that the District of Columbia’s “prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense” to be unconstitutional.  In 2010, with its ruling on McDonald v. Chicago, the court expanded its decision in Heller (2008), in that “the right to possess a handgun in the home for the purpose of self-defense” is applicable to the states through the Fourteenth Amendment’s due process clause (though important to note that the decision by the court interpreted this right to be afforded to citizens; not to include or extend to non-citizens.)

Both, the narrowness of these decisions by the High Court, as well as constitutional questions related to the 14th Amendment’s equal protection clause, have left the door ajar to much more debate surrounding the 2nd Amendment.  Particularly, whether the 2nd amendment should be interpreted as a right to self-defense, or whether the right should be interpreted as a right (to the people) to organize and participate in the militia, for the purpose of preserving their liberties.

What seems to escape the debate on both sides, is the all-important preamble to the 2nd Amendment, which reads:  “A well-regulated militia, being necessary to the security of a free state…”  followed by the rest of the 2nd Amendment-which is the part that most of us know and which the debate seems to focus on-“…the right of the people to keep and bear arms shall not be infringed.”

The 2nd Amendment is the ONLY amendment with a preamble.  It begs the question of why.  Why did the Framers include this preamble, rather than simply stating that the right of the people to keep and bear arms would not be infringed?  The Framers were first and foremost, preoccupied with the prospect of a tyrannical national government which would ultimately infringe upon the rights of the states (and the people).  So, to ensure the security of each state, in its ability to defend its sovereignty vis-à-vis the national government, (as the 2nd amendment states), they ensured that each state would have the right to organize and arm its own militia.  However, this right entrusted to the states was not absolute; but rather required regulation (by each state), as the preamble clearly states.

What does this mean in today’s America? Perhaps proponents of gun control as well as supporters of the 2nd Amendment should pay more attention to the preamble of the 2nd amendment, to find a workable solution that serves the concerns of both sides.  The right to keep and bear arms is not absolute.  It requires regulation (by the states); and regulation implies controls and restrictions.  That may not sit well with gun supporters, but that is what the Framers intended when they included that all important preamble to the 2^nd amendment.  That said however, the right of the people to keep and bear arms-expressed and interpreted as the militia-should be upheld, if regulatory requirements established by each state are met.