The Actually Existing Constitution

In comments to my post on the bizarre mismatch between the President’s largely unconstrained authority to use lethal force and his sharply constrained ability to change domestic legislation, a lot of people got upset that they felt I was endorsing the constitutionality of assassinations, surveillance, and whatever else.

My take on this is that I’m not a lawyer and I don’t try to give legal opinions about what’s “really” permitted and not permitted by the constitution. The fact of the matter is that there are certain things that the president can, in practice, get away with doing. It’s very clear, for example, that the declaration of war provisions of the constitution don’t as a matter of fact constrain Barack Obama’s ability to launch air strikes on Iranian nuclear facilities. Nor is any sitting president going to be put on trial for ordering anyone’s assassination abroad. I suppose that if a President tried to do something genuinely bizarre and totally lacking in political support—invade Brazil, for example—that the situation would change. But even there the real constraints are political, rather than legal; it’s not that John Roberts would stop the invasion, it’s that “support the troops”/”rally ’round the flag” sentiment would vanish in the face of a totally weird directive like that. Indeed, the biggest practical impediment to a unilateral invasion of Brazil is probably the risk that senior military officers would refuse to follow orders rather than that the president would be “checked” by other branches.

Scott Lemieux describes the situation as one driven by “constitutional norms, as opposed to the text of the Constitution” and explains:

[James] Madison was right about one important institutional question: in and of themselves, parchment restrictions on state power are not very effective constraints, and hence they had to be accompanied by an institutional design that would make such limitations effective. Where Madison has largely turned out to be wrong is in his assumptions about the separation of powers. Madison assumed that institutional actors would be very jealous about guarding their prerogatives. But in practice, rather than maximizing their authority members of Congress often take advantage of the separation of powers to evade responsibility. Thus dynamic explains not only the increased foreign policy powers of the presidency, but the general growth in policymaking authority on the part of both the executive branch as a whole and the federal courts.

That seems about right. I would also note that though I’m normally happy to suggest changes in the American institutional design, it’s not clear to me that there’s a right way to do this. As I think the framers would agree, there’s an inherent tension between the ideas of political liberty and republican government and the idea of a large, permanent national security apparatus.