The current debate over the Homeland Security bill raises fundamental questions about the Founders' constitutional principles. The following discussion proves illuminating in a way the political debate has not. These are excerpts from the Claremont Institute-sponsored panel "The Administrative State Goes to War," from Annual Meeting of the American Political Science Association, Sept. 1, 2002.
The roundtable on the domestic politics of the current war featured Mackubin Owens of the Naval War College and John Eastman of Chapman University School of Law. Dr. Owens is a Fellow of the Claremont Institute, decorated Marine veteran of Vietnam, and author of numerous scholarly and popular articles on political philosophy and foreign and domestic politics. Dr. Eastman clerked for Supreme Court Justice Clarence Thomas and heads the Institute's Center for Constitutional Jurisprudence.
The Military Coup of 2012
"In sports you like to play home games. In war you like to play away games."
Mackubin Owens: There are two problems in the administrative state: On the one hand, the open-endedness of the public finance system, seen in deficit financing, enabled the administrative state to develop. On the other, the open-endedness of the military, reflecting its employment and success at diverse tasks, leads to its over-use, misuse, and abuse. These two problems are related in that the administrative state seeks domestic security of its citizens so much that in the long run the social spending ends up crowding out defense spending, and you might make yourself weaker militarily. But this hyperactivity of the administrative state leads it to turn to its instruments for work not originally intended. I have in mind the U.S. military — getting them involved in doing things that will take them away from their ability to do their job, which is ultimately to prepare for and to fight wars.
I have an alternative to Paul Kennedy's argument in The Great Powersâ€¦. First of all, Great Britain's real problem was not imperial overstretch as it is traditionally understood, but it was that it would not or could not take the precautions that were necessary to prevent the rise of another great power. Therefore they had to fight a war they could not avoid. That war led to tremendous problems, and tremendous amounts of social spending. Rather than imperial overreach, you might suggest that the real problem in the administrative state is social spending. The dangers I see is that there are competing claims for material resources in the administrative state, and you're not going to have any money to spend on defense, given the circumstances.
Now the other problem has to do with the idea that the administrative state asks too much of its institutions. You probably know the big debate right now about whether or not the military should get more heavily involve in domestic policy problems. There's a tendency to have the military engaged more and more on the domestic side. Is it a legitimate use? The citizenry asks the military to supply a host of functions over a period of time — internal law enforcement (fighting riots in Los Angeles), patrolling the border, providing humanitarian services, fighting forest fires, etc.
Now, the military is very good. If you give them a job, they will do it. But, let's use this analogy: In sports you like to play home games. In war you like to play away games. And part of that is that our military has been very effective and projecting power and defending the U.S. not so much by sitting at the border but by reassuring our allies.
My only reason for invoking Charles Dunlap's speculations (in his fictional work, "The Military Coup of 2012") is to suggest that it portrays one of the real problems we face in the administrative state. Certainly there is no problem with the loyalty of officers to the Constitution. The problem rather lies in civilians who over commit the military to duties civilians should be performing.
Moreover, when the military gets too heavily involved in these peripheral matters, it loses its ability to fight wars. If you look at Latin American military or African military, they are very heavily involved in domestic politics. They are very good at repressing the people, but they are not very good at external wars. And a number of scholars argue that that's one of the causes of the institutional changes of the military getting involved in doing these sorts of social humanitarian operations. The more the military is politicized, the more it's criticized, the more corrupt it's going to be, and what's going to happen is that it's going to deteriorate.
Homeland Security: The Deeper Issues
"[T]he Secretary of the Interior objected to going to war because the government had not run an environmental impact report to take governmental action."
John Eastman: Our theme is very much one involving the key American constitutional principle, which has, however, deteriorated considerably over the past century — the separation of powers. The rise of the administrative state relates directly to the way we wage war: Consider the legislative intrusion on defense, the judicial intrusion on defense, and the executive washing its hands of the primary function. There is then a great mix in each of the branches' role and their respective powers. I take it as an axiom that the executive we have created, in order to be able to respond to situations like we're in must keep vital information secret and we must move quickly, but the administrative state we've established has made it virtually impossible for us to accomplish our foreign policy tasks secretly or quickly.
For example, on the eve of the launching of the first strike against Iraq in 1991, there was a Cabinet meeting in the Bush White House, and the Secretary of the Interior objected to going to war because the government had not run an environmental impact report to take governmental action. Apparently, there was a wildlife complication under the Endangered Species Act. The whole litany of environmental law was about to be violated. It is going to cause harm to the environment! That's the whole point!
And there's no statute that can restrict your powers under Article II, that can trump those powers of the commander-in-chief and the obligation that all the laws are faithfully executed. The power of the president is superior to the power of legislature. It shows you that anybody who takes it seriously can show you how far down the path we've gone with the regulatory regime. And we see a lot of that today. We see, with the president reconstituting several of our executive departments, such as the new department of Homeland Security. It's more about exemption from a number of these bureaucratic requirements, civil service protection, and yet underlying this whole notion, that in fact those things do bind the president in his exercise of Article II powers. Another aspect of this is the tendency of the administrative state itself to render itself inefficient in every available opportunityâ€¦.
Our administrative state tends to have direction and so one has to think through what we're trying to accomplish. And the natural tendency to want to divert our military has least of all gone that direction. But you see what Mac was talking about, with the natural tendency to want to ask the military to do more and more. And it's not a traditional turf war, the FBI and areas under his command and what have you. On the other hand, the turf war that's going on has nothing to do with the executive branch, because if you bring all these agencies under one Homeland Security Department, you only have one Senate and one House oversight committee, instead of eighteen Senate oversight responsibilities. And so, what we're talking about is what underscores the extent to which the oversight committee in the legislature is conducting, undermining the president.
The other part of this is that the executive needs only dispatch, but it also secrecy. Consider, for example, case of the General Accounting Office's suit against Dick Cheney on a whole unrelated matter, over records of who he met with in developing the president's energy policy. The Federal Accounting Office is suing the executive office for internal deliberation or papers for this task force that Dick Cheney had to make a recommendation to the president. And of course, they are all now trying to get the president to reveal certain aspects of the military, and undermining the very secrecy that we wanted. The second aspect of unitary secrecy is that even if the president does comply with these improper requests, he only gives them to a select committee on intelligence. Again, one of the reasons we have this separation is for secrecy.
It is much more difficult to find such agents for future operations. The gathering of intelligence is not something we can do domestically. It's an overseas operation, requiring infiltration of organizations that threaten us before they hit us. And yet, this attempt by the legislature to regulate public disclosure of all activity, makes it impossible to carry out that kind of intelligence gathering effort. The legislature, for whatever reason, to make a political point to themselves or to the executive, undermines the president's ability to act secretly, unilaterally, or to wage war.â€¦
* * *
The Claremont Institute sponsored 15 panels at the APSA's 2002 Annual Meeting. In 2003 the APSA will meet in Philadelphia and celebrate its centenary. In response, Institute plans a series of panels on the political science of the American Founding versus the Progressive political science that grew out of the APSA — in other words, the politics of natural rights and limited, constitutional government versus the politics of the willful administrative state.