The idea of war by presidential fiat – which seemed to make sense in a nuclear age – soon would be applied to conventional conflicts and even third-world dust-ups, as well as to tangential areas of government authority. In advancing the power of their office, presidents kept secrets from Congress (even from their own cabinets), created off-the-books budgets for covert operations that included assassinations of foreign leaders, and usurped congressional power where they could. For example, presidents increasingly have taken to approving bills passed by Congress with accompanying “signing statements” that express the executive’s views on, or objections to all or parts of the new law, with the clear implication that he may not enforce it rigorously, or will do so only as he sees fit.
George W. Bush holds the record, of course, objecting to 1,400 sections of bills he signed. Nowadays the executive wants to have the last word.
The Bush-Cheney administration broke new ground when it created military tribunals outside the existing court systems to try enemy combatants. In addition to bestowing the power to declare war on the Congress, the US Constitution gives the legislative branch the authority to establish and manage courts, Wills points out. One wonders: Where are the strict constructionists when we need them? In times of unending crisis, it is the president, not the nattering House and Senate, who steps into the breach and decides whether, for example, the nation should honor its commitment to the Geneva Convention, which Alberto Gonzales, attorney general under George W. Bush, termed “quaint” and “obsolete” when it came to the treatment of prisoners of war.