War Powers - History of expanding executive privelege

One of the most important issues regarding Obama's presidency will be his stance on the fact that the executive branch of our government has been expanded far beyond the intentions spelled out in the constitution. How does he view the notion of inherent and implied powers and the balance of war powers between legislative and executive branches? I guess we can't really expect the president to voluntarily give up the executive privileges he has inherited, so the real question is will the legislative and judicial branches attempt to restore the balance of power, which it has been reluctant to do. I've been reading the book War Powers which examines the steady enlargement of the executive branches authority to make decisions regarding use of force without congressional approval. It does so by looking at various administrations, the relevant military conflicts and supreme court rulings. I'll discuss this work below.

The concept of federal government hashed out by the constitutional convention rested upon the balance of between legislative, executive, and judicial branches. The legislative was to the law-making branch, whose laws were enforced by the executive with the judicial there to resolve conflict between the other two. (Irons, 16) The constitution that they approved stated "the legislature of the US shall have the power to declare war" showing that the delegates wanted to exclude the executive from this function. (Irons, 20) The document gave the executive "...the power to repel sudden attacks" and this statement, along with the vague commander-in-chief provision, has been used to justify an amazing amount of clearly offensive war-making directed by the executive with a complacent congress. It was clearly the intentions of the framers that "...only Congress could authorize the deployment of forces outside the nation's territory in combat against foreign troops." (Irons, 21)

From the beginning, presidents acted unconstitutionally by taking exclusive control of foreign-policy decisions. Take Washington's Proclamation of neutrality in the conflict between British and French, which countered the congressionally ratified Franco-American treaty. The essential dispute that will continue to our own day was laid down here, and it was rooted in the vagaries of the constitution in defining terms such as war, commander-in-chief, and declaration of war. Was there such a thing as congress acknowledging a state of war without formally declaring it?? A supreme court case settled in 1804, Little V. Barreme stated that the "president must follow congressional directives" in directing foreign policy and authorizing troop deployments. (Irons, 39)

The issue was touched on again during Jefferson's presidency when he ordered military purchases without congressional approval in response to the British firing on the American ship Chesapeake. He stated the dangerous "law of necessity doctrine", that in times of emergency the president could take extralegal action. "To lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property, and all those who are enjoying them with us; thus absurdly sacrificing the end to the means." (Irons quoting Jefferson, 43)

An important case following the war of 1812 involved soldiers refusing duty and the executive power to mobilize state militias. In Martin V. Mott, Mott was court-marshaled for refusing to report for duty in the state militia. He argued that New york state "...faced no imminent danger of British invasion." (Irons, 49) The court convicted him and set the precedent that troops or citizens couldn't ask for proof of the legitimacy of executive military actions. The did so on the grounds that "the disclosure of the evidence might reveal important secrets of state, which the public interest, and even safety, might imperiously demand to be kept in concealment." (Irons, 50)

Our first clear instance of a president deliberately provoking military attack and masking imperial ambitions behind the visage of defense was the annexation of Texas and the subsequent Mexican War under Polk. Texas joined the union in 1845 and Polk set an envoy to Mexico auspiciously to clear boundary disputes and offer a price for California that he knew would be rejected. US troops moved to the Rio Grande and began making the preparations for invasion in sight of a Mexican fort, which send troops over the border in response to this deliberate provocation. Despite dissent, congress approved a declaration of war, authorizing retroactively Polks unconstitutional deployment of troops. A quote from Lincoln summarizes the concerns raised by this instance. "Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion,and you allow him to make war at pleasure." (Lincoln quoted by Irons, 59)