Constitutional Reforms to Curb Our Imperial Presidency and Protect the Rule of Law

By Alliance Member Alain Norman, MSc JD

Some 250 years ago, my ancestors–yes, more than one–fought against monarchical tyranny to establish an independent republic whose Constitution ensured the Rule of Law through functional checks and balances. Yet the Rule of Law in America is now under grave threat, largely because an “imperial presidency” has emerged over many administrations. To reverse this trend and protect the Rule of Law, Americans should urgently consider much-needed constitutional amendments to:

1. Constrain the ability of presidents to launch wars unilaterally;
2. Further separate the presidency from the administration of justice;
3. Limit presidents’ ability to evade or short-circuit Congressional lawmaking; and
4. Dampen dysfunctional partisanship arising from, or during, presidential elections.

I recommend focusing on these “top four” issues based on my extensive experience working on Rule of Law issues across multiple countries and throughout both Republican and Democratic administrations, as well as on lessons learned from decades of studying comparative government, law, and history. This essay focuses on the first problem: war powers.

Our Archaic Presidency, Turned Imperial Presidency

Before turning to the nature of the American presidency, let me offer a pragmatic definition of the term “imperial presidency”: It is a situation in which America’s chief executive operates, at least de facto, with no significant checks or balances from the other two branches of the federal government.

Next, we Americans should be aware that our presidency is fundamentally archaic. Modern liberal democracies split executive functions between a “head of state” and a “head of government,” although models differ across countries (e.g., the French vs. German constitutions). Moreover, these models distinguish clearly between the nation as a sovereign entity and the (partisan) government of the day. Our venerable Constitution, written in 1787, created a presidency with undifferentiated attributes–which inadvertently laid the groundwork for today’s imperial presidency.

Perhaps in 1787, our Founders believed that this new presidency would be constrained by a Congress that remained primus inter pares, or first among equals, and by republican (or civic) “virtue” among those holding the office. But if we fast-forward some 235 years, we see a very different situation. Thanks not only to this original failure to distribute executive powers between a head of state and a head of government, but also to an increasingly passive Congress, our modern presidency may be considered “imperial” (as Schlesinger did in 1973), and our Congress may well be called “the broken branch” (as Orenstein and Mann did in 2006).

Since at least the days of President Polk, Americans have expressed alarm at how U.S. presidents may leverage “security” issues to exploit ambiguities in our Constitution, often to expand presidential powers. Now that President Trump has launched a war against Iran without even the fig-leaf of a Congressional resolution (as in Vietnam or Iraq), has Congress’ constitutionally-assigned power to declare war–or not–completely evaporated?

Those who argue that a president’s unilateral authorization of military force is acceptable offer two main rationalizations:

1. Such use of force does not constitute “war” (much as President Putin insisted Russia’s invasion of Ukraine was a “special military operation”); or
2. Even if having U.S. military forces cross international borders to bomb and shoot presumed adversaries constitutes “war,” the Constitution assigns civilian presidents the role of “Commander in Chief” of the military.

Yet, Article I Section 8 of the U.S. Constitution ensures Congress has the power to declare war. Although Congress has failed to declare war properly during my lifetime – from the Vietnam War to the current war against Iran –, that failure in no way grants any president the power to start wars under the Commander in Chief rubric. That title simply reflects the Founders’ intention to ensure stability and liberty by precluding men “on horseback” from seizing power during periods of national crisis (as they did to the detriment of the Roman Republic, or, for example, of Myanmar today).

America’s post-WWII bad habit of allowing the executive branch to involve American armed forces directly in acts of war without a declaration of war by Congress is both the most obvious, and the gravest, example of the “imperial presidency.”

What Is to Be Done? Amend Our Constitution to Rebalance War Powers

What should we do? This writer proposes a constitutional amendment to reinforce the prerogative of the representatives of the American people—in Congress assembled—to decide whether or not to risk citizens’ “lives, fortunes, and sacred honor” in war.

Although the wording of such an amendment can be debated, the basic concept might be summarized as follows: Rather than placing the burden on Congress to halt military action (as the current “War Powers Act” does for the first 60 days of armed conflict, this amendment would:

1. Require the president to offer Congress, within 72 hours, such facts and legal arguments as might persuade Congress to approve the military action;
2. Require Congress to vote to fund (or not) military operations; and
3. Require Congress to vote on impeaching any president who fails to follow the procedures and timeliness set forth in the amendment.

The drafters of the Constitution and the Bill of Rights laid the groundwork for strong Rule of Law, including the peaceful transfer of power based on the “consent of the governed,” that has served as the basis for American prosperity and power–as well as the protection and projection of democratic political ideals–for nearly 250 years. But, as we celebrate 250 years since our Declaration of Independence, we must also consider whether America’s one-man presidency has grown too powerful over time.

This article respectfully offers a solution to the gravest example of presidential overreach and the growing “imperial presidency”: the launching of wars without the timely and express consent of the people, as represented in Congress.

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Read Alain Norman’s previous AAROL publications—“Why the Rule of Law Matters—The View of a U.S. Diplomat (Ret.)” and “Good Governance vs. Armored Cars: Why America Must Revitalize Its Rule of Law Traditions”—on the AAROL Blog.

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ABOUT THE AUTHOR: Alain Norman, an American attorney and former U.S. diplomat, has worked to promote the Rule of Law and good governance globally for nearly 30 years. Alain began his career with the American Bar Association’s (ABA) Central and East European Law Initiative, where he supported legal reform and constitutional drafting for former Soviet Bloc countries transitioning from communist to democratic systems. Before joining the U.S. Foreign Service, Alain served as the first ABA Liaison to the International Criminal Tribunal for the former Yugoslavia. While serving as a diplomat, Alain continued to contribute to international Rule of Law and constitutional reform efforts. Alain holds a Juris Doctorate from George Washington Law School and a Master of Science in Comparative Government from the London School of Economics and Political Science.

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