Taking the prerogative out of the presidency: an originalist perspective.

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Taking the prerogative out of the presidency: an originalist perspective.

On Bastille Day, 2005, the Personnel Subcommittee of the Senate Armed Services Committee held hearings on the subject of "Military Justice and Detention Policy in the War on Terror." Senator Lindsey Graham (R-SC) chaired, and witnesses for the administration included Daniel Dell'Orto, principal deputy general counsel, Department of Defense, and six high-ranking legal officers from all branches of the military services. In the course of these hearings--which presumably were not scheduled with the symbolism of the day in mind--Graham and Dell'Orto engaged in a remarkable exchange. It began with the senator asking, "Do you believe that if congressional action were taken where the president could agree about enemy combatant status and military tribunal make up, that it would enhance the status of Gitmo [Guantanamo] because you have congressional buy in?" In reply, Dell'Orto briefly referred to the president's "powers under the Constitution"--presumably the Commander-in-Chief Clause, particularly as triggered by the congressional Authorization for the Use of Military Force of September 18, 2001, and "Supreme Court precedent that gives him an awful lot of authority to run this war"--as sources of presidential authority. An impatient Graham then broke in to restate his question in a new form: "Do you believe we have authority as Congress to regulate captures on land and sea?" Graham was, of course, citing the Article I, section 8 enumeration of the legislative powers of Congress. His question might be regarded as the congressional equivalent of a high school civics test, which is what makes the answer it received all the more astounding: "I'd have to take a look at that particular constitutional provision," Dell'Orto replied. "I haven't examined that one of late. But if that's what it says, I suspect you have that authority to attempt to legislate" (U.S. Congress 2005).

At this point, the concerned constitutionalist does not know whether to laugh or weep. On the face of it, it defies belief, not to say political common sense, to send a senior lawyer to a serious congressional hearing, to confess that the only part of the Constitution with which he is familiar is Article II. Yet Dell'Orto's admission was of a piece with the position the Bush administration had taken on its inherent authority to conduct the war on terror with minimal oversight, supervision, checking, or restraint from the two other branches of government. By the summer of 2005, appeals to the Commander-in-Chief Clause in particular had become something of an administration mantra, the equivalent of former presidential candidate Al Gore's reference to the Social Security "lock-box,"...

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