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The dramatic growth in presidential power in foreign affairs and national security, spurred by 75 years of judicial decisions that find little support in the Constitution, took another leap when the District of Columbia Circuit Court of Appeals, in Zivotofsky v. Secretary of State (2013, 197, citing art. II, sec. 3), held for the first time in American history that the president's duty under the Reception Clause to receive ambassadors and ministers is, in reality, an exclusive discretionary power, broad enough to recognize foreign governments and nations and to determine and implement the policy governing the act of recognition. What had formerly stood as dicta was now law, and presidential exercise of the recognition power was beyond the authority of Congress to regulate or diminish. In a novel, separation of powers case with important ramifications for the conduct of American foreign policy, the circuit court addressed a conflict between the congressional power to regulate the form and content of passports and the presidential exercise of the recognition power. In a decision pregnant with potential to become a landmark ruling, the court held that congressional legislation in 2002 "impermissibly intrudes" on the president's exclusive power to recognize foreign governments and the ancillary authority to "determine the policy which is to govern the question of recognition" (Zivotofsky 2013, 213, quoting United States v. Pink 1942, 229). If Zivotofsky, on appeal to the U.S. Supreme Court, assumes landmark status, it will do so despite the relatively innocuous and obscure origins that contradict the importance of the issue and the controversy that surrounds it. The Passport Act of 2002 requires the Secretary of State to record Israel as the place of birth on the passport of a U.S. citizen born in Jerusalem, if requested by the parent or guardian of the applicants (116 Stat. 1350). The State Department, however, has refused to implement the statute since the executive branch does not, and never has, recognized Israel's claim to sovereignty over Jerusalem. Zivotofsky was cast by the District of Columbia Circuit as a case of "first instance"--the first in American history in which a court was asked to resolve a clash between the president and Congress over the issue of recognition. The drama in the case was heightened by the fact that it was litigated against the backdrop of one of the most contentious, unresolved questions of this, or any century--the status of Jerusalem. The battle between Congress and the president was joined when Congress enacted the Passport Act under its broad authority to determine passport policies on behalf of the United States. In a concurring opinion, Judge David Tatel stated, "It is beyond dispute that Congress's immigration, foreign commerce and naturalization powers authorize it to regulate passports" (Zivotofsky 2013, 221). But that power, according to the court, is not exclusive. Rather, it is a shared power; the president may regulate passports when national security interests are at stake. The clash between the president and Congress plunged the court into "relatively uncharted waters, with few fixed stars by which to navigate" (Zivotofsky 2013, 221, Tatel, J. concurring). As it happened, the circuit court selected a "star"--Justice Jackson's tripartite analysis in Youngstown Sheet & Tube Co. v. Sawyer (1952)--to navigate the issues. It concluded that the case fell into Justice Robert H. Jackson's third category of presidential power: "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter" (Zivotofsky 2013, 220, quoting Youngstown 1952, 637). Through passage of the Passport Act, the court reasoned, Congress had usurped the president's exclusive recognition power and thus it had impermissibly intruded upon the president's authority. …

"Mine," Alexander Hamilton declared, "has been an odd destiny" (Knott 2002, 1-228; Rossiter 1964, 226). Even in death, it may be added. Hamilton's long career--the controversies that his views have inspired, and the wax and wane of his influence, stature, and reputation across a vista of two centuries--was brought center stage in the presidency of George W. Bush. Hamilton's writings, virtually alone among the framers, were invoked by the Bush administration as the cornerstone of its assertions of sweeping executive powers in the areas of war and peace and national security. Hamilton and the Bush Theory of Presidential Power in Foreign Affairs In the aftermath of the 9/11 outrage, the Bush administration launched the executive on a trajectory toward the realm of unchecked and unfettered power, the netherworld of American constitutionalism (Adler 2006, 2007). On the magic of Hamilton's name, and under the high-flying banner of the unitary executive, the commander in chief clause, and the assertion of inherent and plenary executive authority in foreign affairs, President Bush claimed unilateral presidential power to initiate preventive war, order acts of extraordinary rendition, authorize domestic surveillance of U.S. citizens, establish military tribunals, and suspend and terminate treaties, including the Geneva Conventions. The Bush administration, moreover, claimed the authority to "override" statutes that interfered with presidential policies and programs, and declared that the courts had no role to play in matters of war and peace and national security (Adler 2006, 2007; Fisher 2005a, 168-261; Fisher 2007a; Miller 2008, 99-228; Pfiffner 2008, 84-247; Pious 2007; Savage 2007, 10-331; Schwarz and Huq 2007, 65-208). The attribution to Hamilton of such unconfined power is no mean charge. If unsupported by the evidence, it represents a historical libel. With the possible exception of Richard M. Nixon, no American president has asserted such a Cromwellian view of executive power. And that may be unfair to Nixon. The extraordinary concentration of power in the hands of President Bush was pregnant with menace; it reduced the trumpet sound of the rule of law to tinkling crystal. The disdain of the Bush White House for constitutional government may be glimpsed in the observation of former U.S. attorney general Alberto Gonzales, who, in the midst of the revelations in the "torture memos" of cruel and inhumane treatment of prisoners at Abu Ghraib, declared that concerns about constitutional principles in the context of the "war on terrorism" were "quaint" (Jinks and Sloss 2004, 97). The Bush administration's conscription of Hamilton to justify its soaring claims of executive power invites fresh consideration of his views. Does Hamilton bear responsibility for the absolutist pretensions of the Bush presidency? Will his writings support the weight assigned them by Bush officials? Answers begin with a threshold issue: Which of Hamilton's writings should be judged? Who is the subject of inquiry: Hamilton as delegate to the Philadelphia Convention, as "Publius" in The Federalist Papers, or as "Pacificus" during the 1793 dispute over the Neutrality Proclamation? While the issue of whether Pacificus misinterpreted the Constitution for his own ends has absorbed the wit and energies of scholars, there remains the need to examine the uses to which Hamilton and his views were employed by President Bush and his advisors. The Bush administration's case for a plenary presidential power in matters of war and foreign affairs was advanced in a series of memos produced by advisors in the Office of Legal Counsel (OLC), housed in the U.S. Department of Justice. Its use of Hamilton's Federalist Papers reflected an exercise in distortion. An early OLC memo--"The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them," effectively the cornerstone of Bush's legal theory--was written on September 25, 2001, by then (now law professor at University of California, Berkeley) Deputy Assistant Attorney General John Yoo, who became the most prominent architect of the administration's position on executive power in foreign relations (Greenberg and Dratel 2005, 3-25). …

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states when called into the actual service of the United States. --Article II, Section 2 President George W. Bush's sweeping assertions of authority as commander in chief have launched presidential power on a trajectory toward the realm of illimitable and unaccountable executive power, the nether world of American constitutionalism. The president, according to the Bush administration, may initiate preventive war and institute domestic surveillance of Americans' telephone calls and e-mail messages, all without specific congressional authorization. It is contended that the president may designate, seize, and detain any American citizen as an "enemy combatant" and imprison him in solitary confinement, indefinitely, without access to legal counsel and a judicial hearing. Further, it is argued that the president possesses the authority to suspend the Geneva Convention and federal laws that prohibit torture. Among other powers asserted, the president, as commander in chief, may establish military tribunals, terminate treaties, order acts of extraordinary rendition, and take actions that he perceives as necessary to the maintenance of national security and the common defense. Under this theory, any law that restricts the commander in chief's authority is presumptively unconstitutional. At all events, the president may exercise an "override" authority in the unlikely event that Congress would by statute seek to restrain the president. It is likely that the Anglo-American world has not heard such raw assertions of executive power since Oliver Cromwell anointed himself "Lord Protector" of England. President Bush's contentions are, to borrow from the title of John Dean's book, Worse Than Watergate (2004), and they raise questions of fundamental importance to the republic: is the commander in chief altogether beyond control of Congress? What is the scope of power conferred upon the commander in chief to which the president may lay claim? Does the president enjoy the authority to override U.S. statutes--what the English monarchy embraced and advanced as a dispensing power, an attribute of the royal prerogative? As we shall see, President Bush would ascribe to the commander in chief powers that were never possessed by the president when the post was incorporated into the Constitution, and which may not be engrafted by a theory of a presidential revisory power. In fact, President Bush's assertions soar beyond the modest authority assigned by the Constitutional Convention to the commander in chief. All invocations of the president's power as commander in chief must begin with Alexander Hamilton's explanation in Federalist no. 69 that the president's authority would be "much inferior" to that of the English king and that "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" (Hamilton, Madison, and Jay 1937, 448). No "first General" may pretend to exercise the bundle of policy-making powers adduced by President Bush. The lines and curves of the administration's arguments have distorted the origins, scope, and history of the Commander-in-Chief Clause, and they represent a profound threat to constitutional government and republican values. The president, as commander in chief, has no constitutional authority except the power to repel invasions of the United States. His authority to conduct war, once authorized by Congress, is conferred by statute. As a consequence, the president has no power--except that of resisting sudden attacks on the nation--that cannot be stripped by Congress. Origins of the Commander-in-Chief Clause There is, in the history of the Commander-in-Chief Clause, no hint of the warmaking and policy-making authority that President Bush would attribute to it. …

For many college students, enrollment in an introductory course on American government and politics will constitute their only detailed orientation to U. S. constitutional principles. What they read in introductory textbooks about presidential power will significantly inform and shape their understanding of the authority wielded by the nation's chief executive. How do introductory texts portray the president's constitutional powers? This essay argues that text books pay insufficient attention to the source and limits of presidential authority. Moreover, descriptions of executive powers are apt to leave students in a state of confusion. In view of all this, students as citizens are ill-equipped to assess and evaluate sweeping assertions of execu tive power. As a consequence, it will be difficult for citizens to check presidential abuses of power. Each year, approximately one million college and university students across the United States enroll in an introductory course on American government and politics. For many, and perhaps most of these students, "Political Science 101" will represent their only exposure to the principles and practices of American government. What they carry away from that experience in the form of lectures, classroom discussions, and reading assignments will significantly inform and shape their comprehension of government and politics, and perhaps mold their behavior as citizens. Assuming that students read the textbooks assigned to them, it is a fair deduction that their impressions and understand ing of governmental powers?legislative, executive, and judicial?will be influenced by authors' descriptions and explanations, even accounting for instructors' corrections and clarifications of textbook discussion and commentary. If true, we might wonder how pres idential power is discussed, portrayed, and described in 101 textbooks. How will student readers, transformed into citizens, and perhaps active and participatory citizens, come to understand the constitutional powers vested in the Office of the Presidency? In the face

President George W. Bush's unilateral termination of the 1972 ABM Treaty between the United States and Russia, (1) an act overshadowed by the trauma, chaos, and confusion that gripped the nation in the weeks and months following the September 11 outrage, renewed the long-standing and largely unresolved controversy over the constitutional repository of the authority to terminate treaties. President Bush's announcement on December 13, 2001 that he had given to Russia the requisite six-month notice of the United States' intention to withdraw from the ABM Treaty in accordance with the treaty (2) triggered a lawsuit, Kucinich v. Bush, in which 32 members of the House of Representatives challenged the constitutionality of Bush's action on grounds that the president may not terminate a treaty without congressional approval. The Federal District Court, however, refused to reach the merits of the case. It held that the congressional plaintiffs lacked standing and dismissed the case as a nonjusticiable political question. (3) The court's unwillingness to reach the merits in Kucinich reflects a troubling and increasing tendency among courts to elide the substantive issues involved in foreign affairs cases in which plaintiffs assert executive abuse of power and usurpation. (4) The result of this judicial abstention, typified by the invocation of the political question doctrine, is that presidential aggrandizement of foreign affairs powers remains uncurbed and unchecked. Worse, it lends, if not the imprimatur of law and authority, a certain unwholesome encouragement of the tendencies of the "Imperial Presidency" (Schlesinger 1973). Professor Louis Henkin has rightly stated: "By calling a claim a political question courts foster the perception that it is not a constitutional question and encourage the exercise of political power without regard to constitutional prescriptions and restraints" (Henkin 1990, 87). This article has three aims. First, it analyzes the application of the political question doctrine to the issue of treaty termination. It is argued here that the question of the constitutional repository of the authority to terminate treaties is, indeed, a justiciable issue. Second, it offers an account of the impact of judicial abstention on both the constitutional governance of American foreign policy and the enterprise of constitutionalism. Third, it argues that treaties should be terminated by the president and the Senate. Treaty Termination and the Political Question Doctrine The immediate backdrop against which to view Kucinich is, of course, Goldwater v. Carter (1979), in which the Supreme Court held that the issue of treaty termination constituted a nonjusticiable political question. (5) Goldwater arose out of President Jimmy Carter's unilateral termination of the 1954 Mutual Defense Treaty with Taiwan. (6) Senator Barry Goldwater and other members of the House and the Senate contended that President Carter was constitutionally required to obtain congressional consent before terminating a treaty. In his opinion for a plurality--not a majority--of the Court's members, Justice William Rehnquist wrote that the issue could not be resolved by the courts: [T]he basic question presented by the petitioners in this case is "political" and therefore nonjusticiable because it involves the authority of the president in the conduct of our country's foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President.... (7) Justice Lewis Powell concurred, but on grounds of ripeness, and Justice Thurgood Marshall also concurred in the Court's holding, but filed no opinion. (8) The Kucinich court thoroughly embraced Justice Rehnquist's political question analysis which, Judge Bates observed in his opinion for the court, was "instructive and compelling." (9) It is not at all clear why the question in both Goldwater and Kucinich--whether the president has the constitutional authority to terminate a treaty--should be viewed as nonjusticiable. …

There lies behind the title of this essay a working assumption among students of the presidency of a direct correlation between presidential tenure during war and presidential greatness. President John F. Kennedy, according to Arthur Schlesinger, Jr., "observed that war made it easier for a president to achieve greatness" (Schlesinger 2003, 18). No doubt the assumption has been encouraged by the practice of presidential rankings undertaken by political scientists and historians who, with some slight variation, typically have rated as "great" or "near-great" twelve men who constitute the top tier of chief executives and are associated with warfare: Abraham Lincoln, Franklin Roosevelt, George Washington, Thomas Jefferson, Theodore Roosevelt, Woodrow Wilson, Andrew Jackson, Harry Truman, John Adams, Lyndon Johnson, Dwight Eisenhower, and James Polk (Murray and Blessing 1983). To the extent that scholars have drawn a correlation between wartime presidents and presidential greatness, some consideration must necessarily have been given to either the decision to go to war or to the president's conduct of it, or perhaps to both factors. In any event, it is difficult to contemplate the premise of a correlation between wartime tenure and presidential greatness without recognition of at least one of the factors as a basis for evaluation and judgment. The purpose of this essay is to explore, both analytically and historically, the premise of presidential greatness as an attribute of warmaking. The subject is intrinsically interesting, as measured by both the attention devoted to it in scholarly works and the broad range of coffeehouse rants and ruminations that it engenders. There is, as well, an utterly pragmatic point to it: power. For with distinction, honor, and glory, whether long lasting or merely transitory, there is opportunity. A popular president can draw upon the well of appreciation and admiration for the purpose of effectuating his agenda. This capability has not been lost on advisers to President George W. Bush, who believed that his deep wellspring of popular adoration, gained by his status as a wartime president, would be a major weapon in his 2004 reelection campaign (Balz 2003, A1). And where there is power, there are seekers--hence the broad and deep interest in the issue of presidential greatness. This work is conceived as an essay because an adequate examination of this subject exceeds the capacity of a single article. "The essay," Felix Frankfurter once wrote, "is tentative, reflective, suggestive, contradictory, and incomplete. It mirrors the perversities and complexities of life" (quoted in Casper 1997, 6). This essay is not without a point of view, however, because the subject is one of central importance to the study of the presidency and constitutional government. The question of the relationship between executive use of force and a reputation of greatness is, of course, older than the Republic itself and, indeed, plumbs the depths of history. The founders of the nation, like the Framers of the Constitution, engaged in an extended, thoughtful, and penetrating examination and analysis of the question of whether an individual might achieve some measure of fame and glory through the use of military force. Their assessments and conclusions, as we shall see, represented driving forces behind the design and configuration of the War Clause of the Constitution. Various presidents and their advisers, moreover, have viewed the use of military power as a means of achieving both immediate popularity and historical standing. Yet, questions remain. Does the historical record support an assumption of a significant correlation between presidential employment of force and presidential greatness? What conclusions may be drawn about the "success" of unilateral executive warmaking ventures? What, indeed, is the relationship, if any, between executive use of force and the national interest? These, and related questions, constitute the focal point of this essay. …

In his critique of my 2000 article "The Clinton Theory of the War Power" and themes prominent in some of my work on the Constitution and U.S. foreign policy, David Mervin (2000 [this issue]) concedes that my reading of the framers' intentions is "broadly correct," that my analysis of presidential defiance of the Wax Clause is, in some respects, "incontrovertible," and that my position reflects "academic orthodoxy," a welcome acknowledgment to be sure, but a characterization nevertheless that is assailed by revisionists like Mervin, who would supplant the constitutional design with a unilateral executive war-making power, yoked only by the president's perception of U.S. national security interests. The framers, Mervin agrees, granted to Congress the sole and exclusive authority to initiate military hostilities on behalf of the American people; the president was empowered to "repel sudden attacks" against the United States. For Mervin, however, congressional preeminence in wax making, as commanded by the Constitution, is no longer relevant to international politics. In a word, the constitutional arrangement for war and peace is obsolete. The values, preferences, and concerns of the framers that shaped the wax clause--most notably a deep-seated fear of unilateral executive power and a commitment to collective decision making in foreign affairs--are no longer sustainable in a world grown small by powerful advances in technology and information. In the modern world, when the president perceives a threat to the United States' security interests, he should enjoy congressional deference so that he may "meet his responsibilities as foreign policy leader and as guardian of the nation's security" (p. 771). Of course, no such grant is to be found in the text of the Constitution. In fact, the Constitution assigns to Congress senior status in a partnership with the president for the purpose of conducting foreign policy (Adler and George 1996, 19-56). Mervin's quarrel, it may be said, is with the framers, who sharply rejected unilateral presidential power in foreign affairs, and the American people, who have evinced no perceptible interest in amending the Constitution for the purpose of transferring the war power to the president There is, in Mervin's critique, no call to arms for an amendatory effort; indeed, there is no mention of the availability of Article V as a remedy for the obsolescence of the War Clause. Nor does Mervin proffer a constitutional theory that would legitimate presidential usurpation of the war power, but seeks justification for it in three policy arguments: (1) the doctrine of changing circumstances, (2) superior executive information, and (3) congressional incoherence. But policy preferences cannot overcome constitutional principles. As Chief Justice John Marshall wrote in his defense of McCulloch v. Maryland (1819), "The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional" (cited in Gunther 1969,190-91). Changing Circumstances The War Clause, according to Mervin, is "part of an anachronistic value system," for it has been "overtaken by profound forces of change," including powerful advances in technology and information, that have rendered congressional preeminence in war making obsolete (p. 768). It is not enough for Mervin to recount the obvious sociological, technological, and informational changes that have occurred in the United States over the past two centuries, for the question remains, who authorized the president to revise the Constitution under the explanation of changed circumstances? There certainly is a puzzling non sequitur in the proposition that global contraction implies executive expansion and more than a little irony in the contention that the president, denied by the Constitution from initiating military hostilities, might by some transformative means engage in an act of self-conferral of the war-making authority. …