Presidential power today 443The 2018 debate over U.S. attacks on suspected chemical weapons facilities
in Syria provides a good example of how constitutional ambiguities create
opportunities for unilateral action. The Trump administration argued that because
the operation involved only air strikes, it did not trigger the “hostilities or imminent
hostilities” provisions of the War Powers Act. While some in Congress disagreed
and wanted to vote on whether to authorize the operation, no such vote was
ever taken.
This example is far from the first time that a president has argued that military
operations were not subject to congressional review. For example, the arguments
advanced by the Trump administration were very similar to those made by the
Obama administration when it sent military aid and advisers to Syria in 2011.
Even during the Iraq War, when some Democrats in Congress wanted to cut off
war funding to force the withdrawal of American forces, supporters of the Bush
administration cited the unitary executive theory to argue that the Constitution’s
description of the president as commander in chief of America’s armed forces meant
that, even if Congress refused to appropriate funds for the war, the president could
order American forces to stay in Iraq and order the Department of the Treasury to
spend any funds necessary to continue operations. (The unitary executive theory
was also cited during the investigation of possible collusion between the Russian
government and the 2016 Trump presidential campaign, when President Trump’s
lawyers used it to justify their claim that, since the Constitution made Trump the
head of the executive branch (including the Justice Department), he could not be
indicted for committing a crime.)
In both cases, the positions of the Obama and Bush administrations left members
of Congress with a single unattractive option: invoking the War Powers Resolution to
force the end of combat operations. This option would take time, as it would require
building majority support in the House and the Senate for the resolution. It would also
trigger Supreme Court review of the War Powers Resolution, which is a significant
risk—if the Court were to rule in favor of the president and to hold that the resolution
was unconstitutional, it would sharply reduce Congress’s control over future military
operations.
Presidents act unilaterally to make domestic policy as well. President Trump,
for example, has issued orders to limit the admission of refugees into the United
States and to move toward adding work requirements for recipients of federal
welfare benefits. Similarly, during President Obama’s second term in office, Obama
gave several directives to the Justice Department that limited deportations of
undocumented immigrants. And while President Trump has reversed some of
Obama’s executive orders (particularly those dealing with deportations), the others
will remain in place until a future president, Congress, or federal court acts to
rescind them.
It is important to understand that throughout the nation’s history, there have been
many other examples of unilateral presidential actions, such as the annexation of
Texas, the freeing of slaves in the Emancipation Proclamation, the desegregation of
the U.S. military, the initiation of affirmative action programs, and the creation of
agencies such as the Peace Corps.^29 In part, unilateral actions are the product of the
president’s constitutional and statutory authority, which gives the president the right
to act unilaterally under some circumstances. Additional opportunities are created by
the ambiguities in the president’s authority that we discussed earlier. Finally, because
no one becomes president without a strong, broad vision of what he or she would like
government to do, it should be no surprise that presidents are continually testing the
bounds of their authority by taking unilateral actions as a way of translating their
policy ideas into reality.unitary executive theory
The idea that the vesting clause of the
Constitution gives the president the
authority to issue orders and policy
directives that cannot be undone by
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