In "Vital Presidential Power," Kristol, along with Gary Schmitt, another PNAC member, have written the kind of article one typically finds in Kristol's Weekly Standard. It's a compendium of glittering, misleading assertions supported by little if any factual information that supports the illusory notion of extraordinary presidential powers. Among the most outrageous example is this:
…the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional.
Kristol and Schmitt support this bold declaration in typical neocon fashion; they don't bother to. They simply make these sorts of statements and assume that "enough of the people enough of the time" won't bother to challenge them.
In fact, the Constitution itself says nothing whatsoever about granting "extralegal" national security powers to the executive.
What's more, it's mighty darn hard to find anything indicating any framer went on record in favor of extralegal powers for anybody.
Just for fun, I went to Yale Law School'sThe Federalist Papers site and searched "extralegal."
One on the strongest statements written on presidential war powers appears in Alexander Hamilton's "Federalist Paper No. 74: The Command of the Military and Naval Forces, and the Pardoning Power of the Executive _From the New York Packet."
THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.'' The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.
But not even Hamilton, arguably one of the most aggressive proponents among the founding fathers for a strong executive, states that a President should have "extralegal" powers.
Where do you think Kristol and Schmitt got the idea that the Founders intended a President to have them.
Do you think they just made that up?
American's are hearing a lot of this "presidential powers" from neoconservative circles these days. Descriptions like "plenary" and "absolute" abound.
But I don't see words like that in the Constitution, or in any of the Federalist papers.
We discuss the issue of presidential war powers at length at the ePluribus Journal. Early on, I wrote that, "…The notion of sweeping presidential authority in time of war is almost entirely illusory."
If you haven't read the article, I encourage you to do so. You may come to different conclusions from mine, but I can promise you this: everything we used to support that argument was documented in the article itself, fact checked by both myself and a team of experienced fact checkers, and critiqued by an attorney familiar with constitutional law.
We may have gotten something completely wrong, but if we did, it wasn't for lack of extreme effort at keeping our ducks in a row; a level of effort you'll seldom if ever find at The Weekly Standard. From every article I've read in that periodical, I'm of the firm opinion that when it comes to journalistic integrity, The Weekly Standard has no standards at all. And with "Vital Presidential Power," Kristol and Schmitt have exported the Standard's lack of standards to the Washington Post, and the Post, supposedly a real newspaper, let them get away with it.
THE MAKE JEFF EAT HIS HAT CHALLENGE:
If anyone can find anything that supports Kristol and Schmitt's contention that the founding fathers intended the President to have extralegal powers, boy, please let me know and I'll have a plate of crow pie for lunch.
Mind you now, I'm not talking about something from case law, or another quote from another pundit.
I mean a direct quote from Madison, Jefferson, Jay, Hamilton, Adams etc. that anyone would reasonably agree supports what Kristol and Schmitt said.