Appearing Unbiased about Presidential War Powers

In the United States, we assume that political actors will generally tend to be biased in favor of expanding the scope of their constitutional authority. Thus, if one witnesses public officials making declarations against constitutional self-interest, it seems reasonable to give those declarations extra weight as reflecting the true scope of that official’s actual constitutional authority. For instance, if President Trump disavows that he has the constitutional authority to engage in certain kinds of immigration enforcement, we assume that it must be because he really lacks that authority. Or when President Obama insisted in 2015 that Congress had to take a greater role in any military actions against Syria, one might reasonably conjecture that it must be because his own authority to act unilaterally was genuinely constrained. In this essay, I suggest that politicians may manipulate the appearance of being unbiased about their constitutional authority in order to achieve partisan objectives. For instance, when a president disavows that he has constitutional authority to accomplish certain goals, he or she may be simply laying the foundation to constrain the authority of future presidents who may have different policy preferences. Alternatively, the president may simply be seeking to constrain executive branch authority on those particular issues in which he or she believes the political opposition have an advantage. Thus, political actors may have significant wiggle room to manipulate the appearance of not being biased about their constitutional authority in order to further partisan goals. In sum, one ought to be cautious about taking constitutional declarations against self-interest at face value.