Bush Can't Operate as a One-Man Band
by Bruce Ackerman, January 2002

Within one short month, President Bush has launched two major assaults on our system of checks and balances. Without gaining statutory approval from Congress, he announced his plan to punish terrorists with military commissions. And now he claims the right to act unilaterally once again terminating the Antiballistic Missile Treaty without gaining legislative approval.

In both cases, Bush is on weak constitutional ground. Basic principles require the president to gain the consent of Congress on matters of high importance.

When President Roosevelt created military tribunals during World War II, he did so under express statutory authorization and after an express declaration of war. But Bush proposes to proceed solely in his capacity as commander in chief and without a formal declaration of war. While the U.S. Supreme Court upheld Roosevelt's action, its decision cannot be readily stretched to support the constitutionality of Bush's bare assertion of power.

The same is true with the ABM treaty. The leading case involves President Carter's unilateral termination of a defense treaty with Taiwan. In response, Sen. Barry Goldwater (RAriz.) convinced many of his colleagues to join him in a lawsuit before the Supreme Court.

Senior Republicans such as Sens. Orrin Hatch, Jesse Helms and Strom Thurmond signed Goldwater's brief protesting "a dangerous precedent for executive usurpation of Congress' historically and constitutionally based powers."

But in his plurality opinion, Justice William Rehnquist called the case a "political question" and left the matter for resolution "by the Executive and Legislative branches." This is hardly an endorsement of presidential unilateralism.

Seven new justices have joined the high court since Goldwater's challenge, and there is no predicting the outcome of a new case. Even more has happened since the dark days of World War II when the court upheld FDR's military commissions. As a new round of judicial challenges come to court, the justices will begin to see a troubling pattern, and perhaps they will have the courage to call a halt.

This happened once before, when President Truman asserted a unilateral power, as commander in chief, to seize private steel mills during the Korean War. The court declared this unilateral action unconstitutional. Perhaps it may find the courage to do so again.

But rather than waiting for the court to save us by a vote of 5 to 4, we should be asking fundamental questions now.

The Bush administration would like to treat each new unilateral adventure as an isolated problem; defending its military commissions by invoking the president's power as commander in chief; treaty termination by expanding his power "to conduct foreign affairs" (despite the fact that no such power is explicitly delegated to him by the Constitution).

But there is a larger question involved: Why is Bush persistently pushing the constitutional envelope? We are only in the first year of his presidency. If this tendency is allowed to go unchecked, many more constitutional surprises may be in store for us.

There is nothing inevitable about the administration's present course. Atty. Gen. John Ashcroft has begun to retreat after Senate hearings. He has chosen to prosecute the suspected "20th terrorist" before an ordinary federal court.

Similarly, the Senate should call the secretary of State for hearings on the ABM treaty. The issue is not merely the future of a missile system. If Bush can terminate our treaty with the Russians, we may wake up one morning to hear some future president canceling our treaty commitments to North Atlantic Treaty Organization or Israel or the United Nations.

Senate hearings will not only serve to emphasize these broader questions. They will help create a climate of public opinion uncongenial to more presidential unilateralism.

The only effective cure is to enlarge the debate and convince the administration that the public does indeed take the Constitution seriously.

*Bruce Ackerman is a professor of constitutional law at Yale.