The Bush administration's "Enabling Act".

In early December, without a word of public notice, the Justice Department placed on its website a lengthy September 25, 2001 memorandum entitled "The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them." That document sets out, on behalf of the Bush administration, a plainly totalitarian view of presidential power.

"We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad," asserts the memo, composed on behalf of the department by Deputy Assistant Attorney General John C. Yoo. That assertion contains at least two outright falsehoods. First, because of the checks and balances built into our federal system, no branch of the central government enjoys "plenary" authority. Second, since the Constitution specifically assigns to Congress (in Article I, Section 8) the power "to regulate commerce with foreign nations," the president could not be considered, in any sense, "the sole organ of the Nation in its foreign relations."

Reviewing the specific text of the Constitution, the Yoo memo makes the interesting discovery that "these provisions vest full control of the military forces of the United States in the President." In fact, Congress, not the president, is authorized "To raise and support armies ... To provide and maintain a navy ... [and to] provide for calling forth the militia...." It is Congress, not the president, that is given the power "To make rules for the government and regulation of the land and naval forces...." Those elements of the militia that are "employed in the service of the United States" are to be trained "according to the discipline prescribed by Congress."

The Yoo memo's treatment of congressional power to declare war is similarly dishonest. "During the period leading up to the Constitution's ratification, the power to initiate hostilities and to control the escalation of conflict had long been understood to rest in the hands of the executive branch," claims the document. This is true only in the sense that the King of Great Britain--that government's chief executive--claimed and exercised that power.

As Alexander Hamilton pointed out in The Federalist, No. 69, "The President is to be commander-in-chief of the army and navy of the United States." "In this respect," continued Hamilton, "his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it," since the British monarch's power included "the declaring of war and ... the raising and regulating of fleets and armies--all which, by the Constitution ... appertain to the legislature."

In defiance of the unambiguous text of the Constitution, the Yoo memo declares: "If the Framers had wanted to require congressional consent before the initiation of hostilities, they knew how to write such provisions." As noted above, the Framers of the Constitution did exactly that--and the most influential among them pointedly reiterated that principle on numerous occasions.

As James Madison, the "Father of the Constitution," wrote in a 1792 letter to Thomas Jefferson, "the Executive is the branch of power most interested in war, and most prone to it. It [the Constitution] has accordingly with studied care, vested the question of war in the Legislature." Hamilton, who was notable in his zeal for a strong executive, noted in a 1793 essay: "It is the province and duty of the Executive to preserve to the Nation the blessings of peace. The Legislature alone can interrupt those blessings, by placing the Nation in a state of War."

In two other sections dealing with "relevant practices" and recent "congressional enactments," the Yoo memo erroneously claims that precedents established by President Bush's predecessors have somehow constitutionalized unconstitutional actions. Its conclusion asserts that Congress cannot "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

The "Constitution" referred to in that sweeping statement bears no resemblance to the document crafted at the Convention of 1787. Its ancestry can be found in the "Enabling Act" passed by the German Reichstag in 1933--the law that made the National Socialist dictatorship possible.