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Ivan Eland on the Rogue Presidency

A call for returning the power to declare war to the Congress

The last time Congress declared war was December 8, 1941. In the years since then we have gone from a relatively limited executive branch — as spelled out in James Madison’s system of checks and balances — straight through the imperial presidency of undeclared wars in Korea and Vietnam, to a rogue Presidency in which all bets are off.

Historian, economist, and foreign policy expert Ivan Eland has written a new book linking the cancerous growth of the military and executive branch to Congress’s on-going abdication of responsibility.

War and the Rogue Presidency: Restoring the Republic after Congressional Failure is Eland’s latest with the Independent Institute. Senator Rand Paul calls it a must-read for “for anyone seeking a safer, freer, and more peaceful world.”

Buy War and the Rogue Presidency

I’ve covered the growth of the administrative state dozens of times on my show, but Eland has a fresh take on how the erosion of checks and balances has taken place — not all at once, but in a ratcheting of executive power during wartime.

He shows how most major economic interventions have their origin in war: whether its taxes (income tax, progressive taxation, double taxation, tax withholding, tax expenditures, the estate tax, gas taxes, etc.) or social programs (Social Security, expansion of Medicaid, public housing and rent control, grants-in-aid to state).

Even government regulation of marriage, as opposed to the common law tradition, arose out of a Civil War interest in monitoring the moral activity of widows receiving pensions from the government.

Eland walks readers through this surprising history — including Abraham Lincoln’s “inept autocratic” wartime presidency — and the attempts by Congress to push back against growing executive authority. Eventually, he brings us to the present, in which Congress has stopped trying to check the President’s authority.

Eland makes an especially convincing case for conservatives to oppose the “rogue presidency.” He writes:

CONSERVATIVES SHOULD BE leerier of jumping into wars, not only because wars kill and destroy and because the American superpower might become overextended, especially in a time of high national debt and fiscal crisis, but also because war makes the government — that is, the executive branch — expand rapidly at home, even in areas unrelated to national security.

President Trump and the current Republican Congress are at an inflection point. After so many decades endless wars, we may be finally reaching agreements in Afghanistan and elsewhere to bring troops home. Yet Trump continues to face stiff pressures from advisors like John Bolton, who not only warn against troop drawdowns in the Middle East, but seem to be banging the drum for war in other distant regions like Iran.

Tune into the show of ideas, not attitude to learn how Congress can resume its constitutional authority to declare war, and constrain the rogue elements of the executive branch in their insatiable thirst for power.

Transcript

War and the Rogue Presidency

Bob Zadek: Welcome to The Bob Zadek Show.

What in the world has happened to our form of government? In many ways, the form of government that the founders gave us exists only in theory. I’m not trying to be extremist. I am speaking from my heart and from my mind. In many ways we resemble the form of government our founders worked so hard to give us. We resemble that form of government the way the Russian system of government resembles a democracy. Yes, in Russia and other authoritarian countries there are elections. There are elections in Venezuela, there are elections in Cuba, and there are elections in Russia. Those countries are theoretically democracies with democratically elected leaders but they are not really in practice.

In no way, shape or form am I equating our government our system to those that I mentioned. I am not. However the similarity between the theory of our form of government as given to us by the founders and the practice — — how it works on the ground day by day is getting wider and wider all the time. The balance of power is an imbalance of power. It is only a balance in theory, and that has profound effects upon every one of us who live under this system. Many of my guests have spoken about this, but only my guest this morning has a solution.

I am happy to welcome back to the show Ivan Eland. Ivan is the director of Defense Policy Study. He was a director of Defense Policy Studies at Cato. He spent 15 years working in Congress so he knows Congress inside and out. He knows defense policy inside and out. He now writes for the Independent Institute, an organization that I passionately follow, read, and attend their meetings. The Independent Institute is centered in Oakland, California in the Bay Area, and they do wonderful work.

Ivan has written a new book War and the Rogue Presidency, Restoring the Republic after Congressional Failure. Ivan’s book is important because he includes the restoring part. It’s not just a polemic complaining about the system, but Ivan offers tangible and doable solutions. Ivan, welcome to the show this morning. Your book focuses on the effective use of the word “war,” in the transition from the government our founders gave us the government we are for the minute stuck with in 2019 America. Welcome to the show this morning, Ivan.

Ivan Eland:Thanks for having me on, Bob.

The Effect of War on the Republic: The “Ratchet Effect”

Bob Zadek: In your book you trace the history of the deterioration of the system of government our founders gave us, to the system of government in operation that we have in 2019 America, as well as how war has been so important in the process. Tell us about the relationship between the deterioration iof the operation of our government to war. What even is this deterioration?

Ivan Eland: War is a defining event in society as we all know. Not only do people get killed, like in a civil war or overseas, there is a lot of effects here at home, even when we have overseas wars. For example, the concentration of power in the executive. Sometimes that’s temporary, but it can be a ratchet effect.Sometime it never gets completely back to where it was before the war, so it is kind of a stair-step ratchet approach. Every time we have another war the government gets into some other thing domestically because we have to regulate this or that to get war supplies or create war industries.

Some people benefit from it. So then they say we could have the government regulate us during peacetime and we can still be as prosperous in our industry or whatever. So people make money off of it. It is not necessarily good for the country, it may be good for the war effort but then the effects linger over into peace time. So then we get a bigger government and that government is in the executive branch. We get new agencies and we have new functions that the government starts performing. It doesn’t go back completely the way it was burning during peacetime.

This started probably with the Spanish American War. In the Civil War we eventually demobilized the government. At the turn of the 20th century in the Spanish American War and particularly during World War One, the government really had great influence over the entire economy for the first time. This was greater than during the civil war. And of course, during the Great Depression they actually used the war model to battle it. But of course the Great Depression had nothing to do with the war.

The WWI Increases in Power

Bob Zadek: Ivan, give us some examples of the increase in power of the government during World War One.

Ivan Eland: Here is a mundane example, but it shows you how far the government reach went. Daylight savings time was created during World War I to save energy. In the 1970s when we had the oil embargo, Richard Nixon decided that we needed to save even more energy. So he decided to have daylight savings time for eight months and standard time for four months. So, it is very odd because you have daylight savings time during the portion of the year when we don’t need to save daylight because we have plenty of it.

Standard time was whittled down to four months per year, which is the current status. So this is a program that started during World War one to save energy. We also had the nationalization of railroads during that period. And of course, the modern day Amtrak sprung out of that. The government was never priorly involved in that. Income tax originated with the civil war and then it was declared unconstitutional, which it was, and then they brought it back and that late 1800’s. During WWI it became such a hit that they never looked back after it.

Ivan Eland: In World War II, the income tax was converted from a class tax on the upper classes to a mass tax, so they expanded the amount, and then they also started withholding, which is of course the government sort of defrauding its own citizens by not telling them how much tax they were paying. Withholding allows the government to make people focus on their returns or their refunds at the end of the year instead of focusing on their overall tax bill. It also allows you to pay in installments. We also know how that works. When people pay in installments, not only do they not realize how much they’re paying, but it is easier on them. They used to pay taxes in a lump sum. So all these things happened. The income tax generated so much revenue that all sorts of government agencies were funded by that.

Tyranny Under the Cover of 9/11

Bob Zadek:The government gets the public behind it because how could anybody oppose steps that are designed to win a war? No one wants to lose a war! So, Congress is able to enact measures during war time that they might struggle or be unable to enact during peacetime. The loss of civil liberties that occurred after 9/11 were done in the days after the events of 9/11. Tell us about what has happened after 9/11.

9/11 was the first emergency to constrain civil liberties. After 9/11, we had such things like the military commissions, which had been used since the civil war but have been unconstitutional every time they used them during the civil war and WWII. Bush brought them back after 9/11 to try terrorists even though the civilian courts have a better record. As we’ve seen, the military commissions have been a disaster because we are 18 years down the road from 9/11 and they have had very few trials into this military commission system and it’s sort of a kangaroo type system anyway. The federal courts have been much more successful in trying terrorism suspects within the same period.

Ivan Eland: We also had torture, against international and domestic law. There was the spying of citizens through the NSA, which was done illegally and then partially ratified by Congress later on. We had the suspension of Habeas Corpus by the president. The Constitution says in Article One, which deals with Congress, that the congress could basically suspend Habeas Corpus, but it had to be under really restrictive conditions like invasion or insurrection, and 9/11 was arguably neither.

So even congress should not have been authorized to suspend it, but it was George Bush who suspended it by saying that these detainees were so heinous that they could not challenge their detentions. And of course, when you start doing that to terrorists, later they start to be used on regular citizens. We always have to watch that. George W. Bush really opened the floodgates to a lot of these unconstitutional violations of civil liberties.

Bob Zadek: You mentioned “military commissions.” It sounds like a bunch of bureaucrats. In fact, the use of military commissions means the total abandonment of any protections of people accused of something. All of the due process protections that have been around in western civilization since the Magna Carta are taken away by putting the judicial process in the military. So those words are not benign bureaucratic words, they are really important.

Habeas Corpus is a latin phrase. This is a protection against government locking you up without having a good due process reason. It is what keeps us free. Lincoln was the first to suspend habeas corpus during the civil war. He did that on his own. And now we have George Bush doing it. Nothing is more basic to our system then the right to be protected by Habeas Corpus. That gets dismissed away with a shrug because of “terrorism,” a tactic. So these words are very, very important and the fact that there were so many of so many of these rights that were taken away under cover of fear of terrorism cannot be understated. Ivan lists very important changes in the relationship between citizens and its government.

Ivan Eland: We have a lot of episodes in history where the threat wasn’t anywhere near what they claimed justified these things. As I mentioned, you know, the original concept was that Congress would suspend habeas corpus, but only if the country were under an invasion or a mass insurrection. Lincoln put it in place up and down the East Coast during the Civil War. Unfortunately, that became a precedent for the President to do this.

Bush resurrected this after 9/11. When you have these unconstitutional things happen in the United States and there’s no pushback, a future president will argue that because Lincoln did it, so can I. It sets a dangerous precedent.

The Meaning of War: Its Effects on the Federalist Structure

Bob Zadek: We’re going to break in about five minutes, but before we do, we are going to talk about how war changes the relationship between the balance of power among the three branches of government. War is a game changer. Tell us, briefly, how things change constitutionally during war and most importantly, what is a war? Because we have had wars on behavior, wars on drugs, was on economic conditions, such as poverty, and wars on terror, which is a military tactic. How does war change the balance just in wartime? And what does war in the constitutional sense even mean?

Ivan Eland: The term war has been taken and expanded wildly. The problem with this discourse is that we’ve lost sight of what war really is. War is killing people on a fairly large scale. What do you do if it is lesser than that, like a skirmish? The Founders looked at the European Kings and what they did. They regularly took their countries to war and the blood treasure would seep down to the common person.

The Founders said the congress, the representatives of the people, should decide whether to have war or not. So Congress declared war, but then turned over the power to the commander and Chief, the President. In other words, the President was supposed to execute what the Congress had tasked and Congress was supposed to declare war. Well, we haven’t declared war since World War Two. So this is currently being abused. We’ve had several big wars, like the Korean War. We use euphemisms like “police action.”

The only thing that was similar was privateering, which was a government licensed piracy in times of conflict. So they had these letters of mark that congress would issue to commission private citizens to take an enemy ship out and capture them. Congress regulated the unofficial war between France in the late 1790’s as well. So there are things that are not war in the broader sense, but even congress was supposed to approve things like that. Of course, when we have a war on terror, like drone attacks here or there, even those really should be approved by Congress because they are not really official. They haven’t been made official. So a lot of this is sort of illegal. What is happening in Somalia, Pakistan, Libya, et cetera, et cetera. Even these things, short of all out war, were really supposed to be approved by Congress.

Bob Zadek: So what we have is a series of unconstitutional wars where thousands and thousands of Americans have died unconstitutionally under where the president assumes the powers of commander in chief even when we are not at war in the constitutional sense. He’s able to spend buckets of money and kill tens of thousands of American lives. And the question is, how does this happen? Have we been subject of a coup by the office of the President? Or has Congress appointed the President as permanent commander in chief? How did this happen and how do we stop it?

Unconstitutional Wars: The Abdication of Congress

Bob Zadek: You have accused Congress of negligence. How did it happen that the president was able to take command of troops overseas and kill citizens of another country just because the president feels it’s in the country’s best interest? How did it happen that the president is able to do that? After all, Congress controls the purse. The president cannot do anything unless Congress affirmatively gives the president the money. So is this really an abdication of Congress? How did it all happen? Tell us specifically about the use of military force and how AUMF fits into all of this?

Ivan Eland: The problem began during the Korean War. This was a major war. Truman wanted to send forces to help the South Koreans even though he had stupidly. Written it off as a defense perimeter. He should have said that this was outside of their defense perimeter. So the North Koreans decided to invade and Truman had to defend the country. There was no declaration of war here.

Bob Zadek: Why did Truman not choose to behave constitutionally? Why didn’t he go to Congress and ask for a declaration of war against North Korea? That would have been the right way to do it and that sensible way. Why didn’t he?

Ivan Eland: I think his secretary of state had a rather arrogant attitude and an agenda to increase executive power. Truman didn’t have too much experience. He was a Senator but not what you would call an intellectual. He was a haberdasher from Missouri. He was under Addison’s guidance. He not only did not get a declaration of war, but then he tried to nationalize the steel industry in the United States. He wanted to just seize it, with the government running mills. Well, the Supreme Court said, listen, basically you’re the commander in chief of the armed forces, but you’re not commander chief of the country. That is a crucial distinction.

So he was beaten back on the domestic side but they still allowed him to do this. They offered to do a declaration of war, but Addison didn’t want it because he felt it just wasn’t necessary. He thought that the president should have primacy in foreign affairs, which came from a case in the 1930s called Curtis Wright. I won’t go into the details of the case, but they brought back Hamilton’s original saying that the executive is the sole organ of US foreign policy, which of course is nonsense because as I mentioned before, most of the powers in foreign policy reside with Congress. Congress has to ratify treaties. They have to approve of all the people in the cabinet that deal with foreign affairs and defense by confirming them.

They have to declare war. They issue letters of mark and reprisal, et cetera, et cetera. I count 17 powers which congress has over war and foreign policy and the executive has four. The original commander in chief power, which is now relied on by Presidents frequently, was pushed back on by the Supreme Court, but it to some extent let George Bush become Commander in Chief of the country. So, you can see the erosion since the Korean war. The Supreme court has really acquiesced.

An example is that the Military Commissions. Congress said at first that you can’t do this, but then passed the Military Commissions Act. So Congress has abdicated starting in World War One, but certainly down to the present and from Truman its powers. Not only the war power but also the budgetary power. It now and then just putters around on the executive budget. As far as wars go, Congress has always been reluctant to pull funding for troops already in the field, well troops are not supposed to be in the field unless Congress approves it.

But now, the executive sends troops without Congressional authority and then confronts Congress, who won’t defund the troops who are being shot at overseas. The real problem is that the President is allowed to send those forces without congressional approval in the first place. That’s where we need to correct the system, I think.

Bob Zadek: You said Congress has abdicated. It’s not an abdication in the negligent sense. Congress would rather not get criticized for doing something wrong. The way they avoid criticism, meaning the way they get reelected, is by not doing anything and allowing the president to take the heat for sending troops overseas, when in reality, the president can only do it if Congress empowers the president. The title of your book is War and the Rogue Presidency. I think the book to some degree contradicts or qualifies the word “Rogue.” This word suggests that the President is doing something illegal or improper.

But isn’t it the case that everything the president does must be empowered by Congress? The President is not being a rogue. He is simply enjoying the power he has because the legislature has cowardly abdicated their responsibility?

Ivan Eland: In the early 1970s, Arthur Schlesinger, a historian, thought that the president had become so powerful in foreign affairs and national security that it was bleeding over into the domestic scene, namely the Watergate scandal. He was correct in that because the original plumbers that Richard Nixon got to do political dirty trick, were originally created to plug leaks that were coming out of the bureaucracy regarding Vietnam or Cambodia. Slessinger termed this “imperial” presidency, this power on foreign affairs that was bleeding into the domestic scene. I used the term “Rogue,” because I think the presidency is rogue. It’s not only imperial. The President is now doing things that are ilegal, such as domestic spying and torture. This continued through Bush to Obama and now Trump, who wants to take land from private ranchers.

He will pardon whatever executive branch official does that now. That is the imperial presidency. President’s are going to accrue power if Congress lets them. Since 9/11 we have gotten this idea that the President can do anything he wants. Barack Obama just said that Congress has an axe, so I need to. Congress is supposed to legislate. Now, everyone legislates but the legislature. Congress has vague laws because they don’t want responsibility for them. In environment they leave the standards to the executive branch to create. So the executive branch is legislating. Well, then many industry groups or environmental groups don’t like these standards so they sue in court, and now the courts are legislating.

What should have happened to prevent all this is that Congress should have legislated very specific rules if they want to put in environmental regulations, which we can debate about. You double this effect in foreign policy because as I said, since the 1930s, we seem to have this erroneous notion that the executive should have foreign policy dominance. Who knows what we are going to see in terms of warfare. We have around 8 wars going on and possibly more secretly. These are totally illegal and unconstitutional.

You mentioned the AUMF, the authorization of use of military force, that was passed after 9/11. We are fighting groups that weren’t even in existence in 9/11. So you can see that they are basically just blatantly violating the authorization. They did get some original authorization for the war on terror, but it has gone way beyond that.

It is very clear to everybody that they are overstepping. War is the ultimate thing that Congress does not want to take responsibility because they don’t want to be part of a losing war. They like to take credit for having approved it if the war goes well, but this is uncertain.

A lot of Democrats voted against the first persian gulf war, because he didn’t get a declaration. He did seek some kind of approval but it was mostly a courtesy. But the war was won and it was one-sided, so it was bad for democrats. So the next time, when his son went after Saddam Hussein, most Democrats voted in favor of the war. But this time it ended up being a disaster. Congress does not want to be held responsible because their ultimate goal is reelection, not making good policy.

A Solution to the Problem of Congressional Abdication?

Bob Zadek: An important part of your book is the solution to the pickle we find ourselves in today. Share with us some examples of how we could fix this process so that we are not in the condition we are today, where most Americans have never lived during a period of peace.

Ivan Eland: We need to correct the institutional incentives of individual members of Congress to match the incentives of the institution as a whole. The institutional incentives are supposed to take precedence. James Madison figured that each branch would look after its own interests, and that’s not really happening. The members are going off and trying to get reelected on their own with doing their own publicity. So I think you need to really restore that. One way to do that is to try to structure Congress. Congress can structure its own rules to create more party discipline within the congress. It would help if Congress pushed back as an institution if its members had closer incentives to what the body’s incentives were.

Bob Zadek: So the problem is internal within Congress. The individual members realize that the secret of getting reelected is not to make decisions. Therefore they surrender individually, but ultimately collectively, their power, because with power comes the possibility of making a mistake. If they give up the power and let the courts take the heat they will get reelected. Look at the power of the courts and the heat it gets, or the power of the executive and the heat it gest. Congress just holds hearings and becomes a collective scold on other branches of government, but doesn’t enact legislation. I challenge our listeners to name a piece of legislation that Republicans and Democrats collectively support.

Congress has become just an organization that focuses only on its own preservation and not about what the country needs or wants. They gleefully surrender all of their power to the other branches and all they do is get reelected so they can have free parking at Reagan airport. Ivan, how likely is it that legislators will act against their individual self interest in order to preserve the importance of the institution?

Ivan Eland: Well, we have had some centralization in the last couple of decades in Congress, which I think is good. I think we still need more. We have a system now that is very partisan without strong parties. And I think one of the solutions is to get more party discipline in Congress. We can do that by rule changes and strengthening, the Senate majority leader in the house and the speaker. The other advantage of that is, if you have that, it’s also easier to get things done because the leadership just negotiates. McConnell would pick up the phone and call Pelosi and say, “listen, can you bring your people along? We need to make this compromise and get some legislation passed.” And she says, “Yes, I can bring my members along.” But that’s not what happens.

We have 535 grand standards who are out to use the media to get reelected on their own. They don’t really have much loyalty to the, to the leaders in Congress. That’s a real problem for getting anything done. It’s not going to be perfect but hopefully this improves things a little bit.

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