Students of the US presidency have long been attentive to its rise to ascendancy at the expense of the legislative branch. Some perceive this trend as undesirable and perhaps even unconstitutional, while others are inclined to accept it, particularly in the realm of foreign policy and military action. Sarah Burns is not so inclined. Her book The Politics of War Powers chronicles and critiques the rise of presidential unilateralism with regard to the war power, which she argues amounts to a “perversion” of the constitutional order (4).
Perhaps the most original aspect of Burns's book concerns conceptions of American constitutionalism, rather than the development of the presidency per se. Burns contends, contrary to conventional wisdom, that American constitutionalism owes more to Montesquieu than it does to Locke. Following Donald Lutz, she claims that by the 1780s Montesquieu was the more influential writer, and she notes that “both the Antifederalists and the Federalists drew from his work” (77).
In addition to emphasizing Montesquieu rather than Locke, Burns takes up aspects of Montesquieu that others often ignore. She admits that “Montesquieu makes it quite difficult for readers to determine exactly what he advocates” (23), but she focuses on his notion of “ballast,” whereby “the branches of government . . . form a ballast and work in tandem” (155), so that the constitutional regime remains balanced and steady even in political storms (10–11). Such a system “significantly reduce[s] the need to rely on the character of the people holding power” (107). Burns claims that this system has unfortunately been replaced over time by one of Lockean prerogative, in which the president unilaterally controls the war power. Without Congress (or the judiciary) to check it, executive control of the war power is limited only by the character and self-restraint of the president, which are all too often lacking.
After explicating in detail Montesquieu's constitutional vision, Burns devotes most of the rest of the book to sketching this shift from an original Montesquieuan system to one of near limitless presidential prerogative. According to Burns, in the nation's early years, neither presidents nor members of Congress had a clear sense of how to balance the various branches of government vis-à-vis the power to make war; the matter was left “ambiguous” (79) and undecided. She describes how George Washington, Thomas Jefferson, and James Madison all articulated “remarkably divergent views about how the executive should use the military” (104), and Congress actively engaged with them in debating which account was best.
Burns then devotes a chapter to exploring how a number of presidents later in the nineteenth century (James Polk, Abraham Lincoln, and William McKinley) approached the war power. She finds that they had different views about it, but in these cases too, Congress was actively engaged in debating those views, and both branches accepted that “in the realm of war they are coequal and share responsibility” (107). Indeed, Burns says that in the nineteenth century Congress “could check the president and bring him back into the constitutional field after some questionable actions” (105). However, Burns notes that this period saw a growth in national power, and while she praises Lincoln's own cautiousness, she observes that subsequent presidents were enamored of the power that Lincoln managed to deploy and cited his justifications as precedents that might permit a host of other actions (240).
Moving to the twentieth century, Burns gives some brief attention to Theodore Roosevelt and his corollary to the Monroe Doctrine, but she contends that control of the war power really changed with the two World Wars. She argues that Woodrow Wilson and Franklin Roosevelt endeavored to thwart congressional restraints on their military plans and turned to their lawyers to justify their actions. She further contends that when the president uses legal arguments to justify his unilateral war actions, Congress is distanced from the decision-making process. That legal turn “created a path for future presidents to follow if they wished to have more unilateral control in the realm of foreign policy,” and “by the end of World War II, Congress and the courts found themselves without the capacity to put the genie back in the bottle” (129–30). “This era marked the death of the properly functioning Montesquieuan system and the rise of . . . legalized Lockean prerogative” (130).
Burns contends that during the Cold War presidents asserted unilateralism even more aggressively, while Congress acquiesced. Insofar as the Cold War abetted the further rise of presidential unilateralism, one might expect that the end of that conflict would have ushered in a more balanced sharing of the war power. But according to Burns, the United States did not rebalance in the 1990s. Instead, “presidents continued to take advantage of their position in the warped system, further legalizing their assertions of Lockean prerogative,” often through opinions from the Office of Legal Counsel (182). As a result, “by the twenty-first century, presidents have carved out a sphere of unilateral power that all but eliminates the congressional role in shaping foreign policy” (237).
Burns argues that the blame for this rests not with presidents but with Congress: “The executive branch should not be responsible for restraining itself. This type of self-restraint is not built into the structure of the formal powers and will never provide a sufficient check on executive overreach” (198). On Burns's account, when Congress was confronted with executive unilateralism in military affairs after the nineteenth century, it generally deferred and acquiesced and soon became utterly “supine” (156). As a result, “Congress has failed to recognize its own self-interest and use its power to guard against executive encroachment” (198).
Moreover, even when the political context was ripe for Congress to rein in the executive, it did not do so. Burns maintains that the 1973 War Powers Act failed to prevent future abuses. And even when George W. Bush and the Iraq War were both held in ill repute, Congress failed to act: “Despite having a number of factors in their favor, members of Congress remained unable to oppose an unpopular president increasing troops to fight a publicly decried war” (214–15).
Such is the state of affairs with presidential control of the war power, according to Burns. In her view, it is not good, but it is unlikely to change. In part, this is because “the warped system” is now so entrenched and has become so ossified that the system might no longer be able to rebalance (237). And in part it is because Congress is both dysfunctional and too narrowly self-interested; it is too politicized and partisan to engage in meaningful dialogue, and it prefers to avoid accountability when military actions do not turn out well. Thus, Burns concludes, “it might not be possible to restore the coequal status of Congress in the realm of foreign affairs” (241).
Burns's book is a welcome addition to debates about the rise of presidential power generally and presidential dominance of foreign policy in particular. Again, its provocative contribution is its contention that American constitutionalism is—or was, and should again properly be—more the child of Montesquieu than of Locke. The book is well written, sensibly organized, connected to existing scholarship, and easy to read. It should appeal especially to scholars and students of the presidency, constitutionalism, and foreign policy.
