Liberty, Prudence, Imperfection, and Law

Knott’s Folly: A Critique of Stephen Knott’s Apology for Carte Blanche Presidential War Powers

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An excellent example of neo-Hamiltonian theory regarding presidential war powers can be seen in Stephen Knott’s new essay, “War by Lawyer,” where Knott argues against recent attempts to judicially oversee and restrain the president’s powers to conduct war and other activities related to national security. Such a controversial thesis deserves a critical response, and this will be developed in the paragraphs that follow.

When perusing Knott’s essay, readers should be prepared to encounter an implicit zeal for returning to the good ol’ days when we lived under a British monarch and, hence, had the king’s benevolent protection via his unenumerated, plenary powers over war and peace (sarcasm intended). Comically Knott attempts to tap rank-and-file conservative frustration with judicial activism for persuasive affect. He also cleverly concludes the essay by suggesting that recent calls for more judicial oversight of the intelligence agencies entail of the “death of common sense,” which is a reference to Philip Howard’s argument against the legal red tape that over criminalizes and generally stifles American civil society. Never mind that he is defending the Federal government’s violations of the Fourth Amendment (and probably other unenumerated liberties protected by the Ninth Amendment) that have come to light in the recent NSA controversy. Knott is just mad as hell at those who dare advocate that unelected judges engage in basic-level of judicial review (“judgment”), which, if anything—contrary to his protests otherwise—does seem in keeping with Hamilton’s Federalist # 78.[i] Albeit, he is unfortunately correct that the Court has often given the president a pass on unconstitutional exercises of war powers, with the exception of a few noble challenges such as Justice Taney’s condemnation of Lincoln’s unilateral suspension of habeus corpus in Ex parte Merryman and, then, more recently by the Court in Hamdi v. Rumsfeld and Boumediene v. Bush.

Furthermore, Knott seems to disapprove of any means to oversee and check the president with respect to war and national security. This can be seen in this nugget from his essay:

One of the latest demands from advocates of increased judicial oversight is for a “targeted killing court.” In a similar vein, Senator Marco Rubio has called for the creation of a “Red Team” review of any executive targeting of American citizens, which would include a 15 day review process— “decision, activity, secrecy, and dispatch” be damned. A 15 day review process of targeting decisions would horrify Alexander Hamilton and all the framers of the Constitution. No doubt our 16th President would be horrified as well—imagine Abraham Lincoln applying for targeting permits on American citizens suspected of assisting the Confederacy. (“Today, we begin a 15 day review of case #633,721, that of Beauregard Birdwell of Paducah, Kentucky.”) War by lawyer might in the not too distant future include these types of targeting decisions, followed by endless appeals to unelected judges. All of this is a prescription for defeat.

As will be shown in the next paragraph, Knott is on thin ice with regard to his characterization of Hamilton’s statements during the Founding period. What is more jarring, however, is the radically extensive character he attributes to war powers. He doesn’t just dismiss Senator Rubio’s fifteen-day review process, but rather he suggests that there should be no such waiting period before the president can “target … American citizens.” Does Knott really think the president should have such carte blanche discretion? Furthermore, he appears to hold in high regard the bad old days when Lincoln and his generals brutally suppressed vocal Northern Democrats who opposed his war against the seceding Southern States. Remember this included imprisoning a United States Congressman, Clement Vallandigham of Ohio, who dared to publicly voice his dissent against Lincoln’s war.

Although Knott employs Hamilton’s argument for “unity” in the executive (as opposed to a plural executive that was advocated by some of the Anti-Federalists) in Federalist 70 as (originalist) support for Knott’s thesis, Hamilton does not here define (in any worthwhile detail) the scope and extent of the president’s various war powers. Hamilton does suggests that a single executive is needed for national defense; however, given that his general thesis focuses on the necessity of granting executive powers to one man rather than to a committee, the most plausible interpretation of this is that only a single executive will be sufficiently competent to exercise the war powers delegated to the executive (e.g., the powers entailed in being “commander-in-chief”).  Importantly, Hamilton does not in this essay proceed to elaborate (in a meaningful way) upon the scope and extent of these war powers. Although Federalist 70 implies that such delegated powers will include defending the country against invasion, it does not elaborate upon the extent of this or any other war power. This was not Hamilton’s purpose for 70. This becomes even more manifest by the fact that Hamilton had already discussed the scope and extent of the president’s powers in Federalist 69. However, there Hamilton’s argument does not yield the results that neo-Hamiltonians such as Knott seem to desire. In fact, in 69 Hamilton willingly seeks to eliminate the Anti-Federalist claims that the Constitution grants too extensive war powers to the president:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies—all which, by the Constitution under consideration, would appertain to the legislature.

Here Hamilton, writing as Publius suggests that the president’s “commander-in-chief” function “amount[s] to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy.” He further implies that this pure military role does not “extend” to deciding whether or not to initiate war, for the “Constitution” grants this power “to the legislature.” (h/t: Tom Woods). It is far from obvious that Hamilton is here implying that such a “first General and admiral” would have the kind of carte blanche discretion in how to conduct his military duties that Knott envisions for the president (e.g., freely targeting American citizens, unilaterally suspending the writ of habeus corpus, etc.). In fact, this seem most implausible given both (1) that 69 was aimed at defeating Anti-Federalist claims that the president had very extensive powers and (2) that any whiff of something similar to Knott’s radical notions about the president’s war powers would have completely affirmed such Anti-Federalist claims.

These errors aside, Knott’s essay is still strongly grounded in Hamiltonian theory, but it is the more malign (and probably more frank) Hamilton of the later Pacificus-Helvidius debate (1793-94), not the earlier Hamilton-As-Publius from the Federalist (1787-88). Consider how the following statement in “Pacificus Number I” about the president’s plenary executive powers contrasts with the defined and limited the scope of presidential war powers in Hamilton’s Federalist 69:

The general doctrine then of our constitution is, that the Executive Power of the Nation is vested in the President; subject only to the exceptions and qu[a]lifications which are expressed in the instrument. Two of these have been already noticed—the participation of the Senate in the appointment of Officers and the making of Treaties. A third remains to be mentioned the right of the Legislature “to declare war and grant letters of marque and reprisal.” With these exceptions the Executive Power of the Union is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts, upon full consideration and debate.

While in Federalist 69, Hamilton implies that the president’s war powers are, indeed, enumerated and, hence, clearly defined and limited, here Hamilton-As-Pacificus suggests that the president’s executive powers are plenary and unenumerated save for a few traditional executive powers that the Constitution grants to Congress. To say the least, Hamilton-As-Pacificus appears to be different than the Hamilton who wrote Federalist 69. However, judging by his power-amassing, constitution-bending general performance within the Washington Administration, one can question whether Hamilton ever accepted the strict constitutional limits that he gave lip service to during the Federalists’ campaign for Ratification.

With respect to Hamiltonian strong-executive theory, I sincerely doubt that the State-Peoples, who ratified the Constitution and, hence, who can be viewed as the authoritative source for ascertaining its original meaning, had any intention of granting the president a vast swath of monarch-like powers over foreign affairs that Hamilton and neo-Hamiltonians construe the Vesting Clause in Article II as providing.  The notion that just thirteen years after jointly declaring their independence from the British King (due to “a long train” of the King’s “abuses” that included—at least in the minds of the State-Peoples declaring independence—the King using his traditional plenary executive powers to wage war against the colonists when they were still his subjects) these same State-Peoples intended to yoke themselves to a new (elected) monarch with the similarly unenumerated, plenary executive powers is just not plausible.

At the hand of those who fabricate its original meaning with preposterous theories (like the neo-Hamiltonian, strong-executive theory that Knott embraces), the Constitution has truly become the kind of “parchment barrier” that Madison feared would be ineffective in constraining the political powers that be. Unlike Madison’s time, however, the presidency is now possibly the worst transgressor of our fundamental law. Another writer on this site has implicitly suggested that the presidency, with respect to war powers, has become an “impetuous vortex,” and I presume that many of us will continue examining the scope and depth of presidential violations of nomocracy.


[i] Greg Weiner’s  “War by Fiat,” which is a response to Knott’s essay, makes this point well. Judicial oversight of presidential war powers is especially appropriate because it is an area where the government can act against the rights of citizens, and checking government in relation to citizens is an end for which separation of powers was intended to help realize. As Weiner’s mentor, George W. Carey, famously maintained throughout his career Publius’ separation of powers was aimed at preventing tyranny, which was the concentration of governmental powers in the same hands. Properly separating the stewardship of the respective judicial, legislative, and executive powers of government into different institutional hands was (according to Carey) Publius’ primary solution for preventing tyranny. Judicial oversight of the executive branch’s actions that affect constitutionally protected rights of the citizens is a legitimate facet of Publius’ system.

9 Responses to “Knott’s Folly: A Critique of Stephen Knott’s Apology for Carte Blanche Presidential War Powers”

  1. Howard

    Oversight by the Judiciary is certainly not ideal, but it is even more certainly better than no oversight at all. If it comes down to it, I’d rather take my chances against foreign terrorism than against domestic tyranny.

    The Congress really should be involved in this, but the sad fact is that Congressmen want status without responsibility.

    Reply
    • Peter Haworth

      Dear Howard,

      Thanks for your comment, and sorry about the delay in posting it. I agree with many of your claims. Please continue offering your insight on Nomocracy in Politics.

      Best Regards,
      Peter

      Reply
  2. gabe

    Very well stated!
    Just two questions:
    1) As it can be confirmed that JAG officers operating at forward bases have been involved in targeting – go / no-go decisions and the re-definition of Rules of Engagement, do you still feel that Mr Knott’s argument is groundless.
    To my mind, the Constitution grants to the Congress the power to establish the rules for the Armed Forces. While JAG is a part of DOD, not the Judiciary, it does not take much imagination to see where this may lead.
    2)a) I wonder what Mr Knott would think, if it were the Congress, leading to the “death of common sense?” after all, they are empowered to do so.
    b) How should the Courts react were the Congress to legislate the same policies / tactics that Bush and now Obama have employed?

    In my own mind, the Court should have to bend to the one (Congress) but not the other (Executive).

    Reply
  3. Peter Haworth

    Dear Gabe,

    Thank you for excellent questions. Unfortunately, I can only really provide answers to your set #2.

    With respect to 2a, I presume that Professor Knott holds a neo-Hamiltonian position, which is similar to what has been articulated by John Yoo; he probably believes that the Vesting Clause in Article II grants the president a large swath of plenary power related to war-making whereas Congress has only those powers that are enumerated under Article I. If I recall correctly, Yoo goes even further than this (and probably much further than Hamilton). He thinks that Congress’ power to declare war is more of a formality– i.e., the power to formally declare that a state of war exits; Congress’ power here does not connote the exclusive control over whether war is initiated.

    With respect to 2b, I agree with your thinking here. To the extent that the Court has any constitutionally legitimate power to conduct judicial review, it has to be as Hamilton said in Federalist 78 based on “judgement,” not “WILL”; it cannot engage in de facto legislative actions via the pretense of reviewing the constitutionality of the other branches. Since the Constitution gives Congress the power to initiate war, the Court must respect this body’s relevant legislation even if it be imprudent.

    Reply
  4. gabe

    Dear Peter:

    Just so! – and thank you for the kind response.

    It is somewhat curious to me that Mr Knott has not responded to my questions as I have on previous occasions (Online Library of Law Liberty) posed the same questions.

    I am somewhat more sympathetic to his arguments than others, perhaps, yet I think he does himself a disservice in not stating more clearly whether his objection is solely to Judicial interference or if it encompasses both Judicial and Legislative interference with Executive War Powers (however loosely one wishes to define those powers).

    I do not know (of) him; however I have been led to believe that he is a legal positivist. If so, while one can understand his frustration with the Judiciary, one wonders how he could not accept some positive law from the Congress, whether, as you say, it is imprudent or not.

    thanks again

    gabe

    Reply
  5. Peter Haworth

    Gabe,

    This is very interesting. I would never had guessed that Knott is a positivist. This certainly is not true of many of his apparent Straussian/neocon friends.

    I conjecture that he focused primarily on judicial interference because attacking the Court is popular with rank-and-file conservatives given the whole history of rogue judicial activism. Knott does, however, imply that Congress should not interfere with presidential policy on war and national security when he criticizes recent/current actions by various senators and representatives aimed at doing so. Like Yoo, he seems to want the president to have executive powers that are similar to those of Eighteenth Century British kings.

    Reply
    • gabe

      Peter:

      Yes, I see what you mean – especially with regards to 18th Century Monarchs.
      His implication that Congress should defer is indeed more indicative of neo-cons. Although, my own limited reading of Strauss and Jaffa would suggest that a somewhat higher regard for positive law is still permissible, if not encouraged, given certain conditions.

      take care
      BTW – The site seems to be off to a very good start. good luck

      gabe

      Reply

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