“We are in Alice in Wonderland world, constitutionally,” said Gordon Silverstein in a lecture last Thursday titled “Obama, War Powers and the Constitution: Back to the Future?” Silverstein, an assistant professor of political science at the University of California-Berkeley and a fellow in the Princeton University Program in Law and Public Affairs, is the author of two acclaimed books on constitutional law.
During the lecture, Silverstein spoke on the mystery of war and the past, present and future of executive power in the United States as it is influenced – or not influenced – by the Constitution.
Silverstein reminded the audience of the centuries-old story that chronicles the growth of presidential powers, one that dates back to the struggles of Jefferson and Lincoln to enact controversial, aggressive policies.
He used the past as a springboard to lead into discussion on the United States’ two most recent administrations, which he described as unique in their attitudes, successes and respective political environments.
Silverstein introduced the second Bush administration as one that came into office “committed to expanding the executive,” especially following the Watergate scandal several decades ago.
He portrayed Cheney as an aggressive politician determined to expand his office, without the help of Congress.
However, as Silverstein contends, these aggressive attempts actually backfired for Bush, causing a backslide in both Supreme Court favor and public opinion. In fact, Silverstein argued that Bush and Cheney’s aggressive strategies ultimately resulted in a loss of power.
Silverstein then presented a great irony of the current decade: that while Obama came into office on the waves of change, he has in fact been more successful in expanding the executive branch, essentially carrying out Cheney’s wishes in a more discreet manner.
“Obama has changed the administration’s approach to executive power, returning to a traditional focus, building on legislation instead of unitary executive power,” Silverstein said.
According to Silverstein, while it may seem that Obama’s stance on issues such as Guantanamo Bay, the war in Afghanistan and the infamous State Secrets Doctrine are the remnants of Bush’s legacy and not the efforts of change; “executive expansion is not unique to left, right, conservative or liberal.”
It is the actions of the other two branches that most determine the power of the third, Silverstein said. He introduced the Supreme Court as essentially the arbiter of presidential authority, whose rulings have always dictated the course a presidency will take with regard to its growth.
It is by cooperating with Congress, Silverstein said, that Obama has managed to expand the executive so well, using “traditional” methods to garner approval and sanction for his policies.
“There is little to gain [for Congressmen] in taking responsibility [in foreign policy],” Silverstein said. He alluded to the past as a contrast to the present: While Madison wished to have the three branches “fight for power, to ensure the safety of the rest of us,” the attitude in Congress seems to have shifted into letting the president accept the brunt of foreign policy, to surrendering this fight for power. According to Silverstein, this leaves us with a crucial question: Will Congress respond to Afghanistan as it did to Vietnam? Will Afghanistan be Obama’s war as Vietnam was to Kennedy, Johnson and Nixon?
In closing, Silverstein reminded his audience of a stark reality about the United States: The Constitution, the foundation upon which the entire nation rests, is only a piece of parchment stained with centuries-old ink. Its power comes solely from the faith that the American people, have in it.
The document’s restrictions and limitations are valid only as long as unanimously agree to follow them.
It is ultimately up to the people to ensure the balance that the Founding Fathers fought so hard to ensure is maintained.