Are We Still Living with a Bipolar President?

As part of a seminar in constitutional law that I was enrolled in last year, I was given the opportunity to travel to the Library of Congress to conduct archival research in the papers of Supreme Court Justices.  My goals:  first, to interpret the often inscrutable handwriting of the Justices and second, to explore case files on a variety of issues to get a behind-the-scenes glance at what was debated during conferences and in the Justices’ chambers before landmark decisions were handed down.  One of the hot topics that I began researching at the Library of Congress and in prior constitutional law classes I had taken concerned the scope and extent of executive power especially in light of events taking place since the beginning of the War on Terror.  In particular, I wanted to investigate whether elements of the unitary executive theory that had gathered steam since the Nixon and Reagan Administrations had become a commonplace assumption of the Presidency or whether the Supreme Court had largely refuted that theory after the Guantanamo Bay cases were handed down.

This really was the genesis of my research topic for the Presidential Fellowship.  In essence, I am going to approach the broad topic of executive power by using the theory of the dual presidency put forth by Aaron Wildavsky as the theoretical framework from which to launch into a discussion of recent changes and attacks on the so-called unitary executive. Using both the Justices’ papers and an empirical survey of Congressional votes on foreign affairs, I want to see if and where (from roughly 1936 to present) there have been changes in the bipartisan foreign policy alliance on votes dealing with the President and foreign affairs.  For, if the Supreme Court has been increasingly hostile to expanding the scope of Article II powers when the President acts alone, we might expect the President either to seek Congressional authorization for the unitary action or to try and develop a somewhat greater alliance with Congress when handling foreign affairs.  Either way, it is arguably the case that Wildavsky’s assertion of a dual president does not hold to the same extent as it once did.   I would like to argue that no longer can the President be said to have two power profiles:  a smaller one when dealing with domestic issues and a larger one when handling foreign affairs.   The domestic/foreign distinction has really become muddled which suggests that the two separate ‘poles’ of presidential power are no longer as well defined as they once were.

Presidential power over foreign affairs has always been one of the gray areas, constitutionally speaking, of Article II.  This research topic will give me the opportunity to take a theoretical framework of the Presidency, analyze it from a constitutional and empirical perspective, and hopefully illustrate that the current state of affairs does not paint such a rosy and expansive picture of the powers of the President when dealing with foreign affairs.

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