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The Atomic Midwife: The Eisenhower Administration’s Continuity-of-Government Plans and the Legacy of ‘Constitutional Dictatorship’

2010; RELX Group (Netherlands); Linguagem: Inglês

1556-5068

Matthew L. Conaty,

International Law and Human Rights

The story of the Eisenhower Administration’s continuity plans for post-atomic governmental survival provides a unique perspective on the authority of the nation’s chief executive in a crisis. Within the pertinent historical context, this article reconstructs them from the memoranda, sample proclamations, and recovery and defense approaches drafted by Eisenhower’s cabinet, and details contemporary legal responses to the broad executive powers they assume. It then contemplates the prospects of Congressional or judicial resistance using modern constitutional theory, should a similar change in executive authority be effectuated in response to a latter-day national disaster. The conclusion is grim: presidential employment of the military under a defensive war theory coupled with ingenerate limitations on the legislature and the courts foreclose effective resistance to a “constitutional dictatorship.” Part I of this paper sketches the historical background of this tumultuous period in U.S. history, including the American commitment to contain the spread of communism at all costs, even at the risk of an exchange of atomic weapons. Part II elucidates the Eisenhower Administration’s contingency plans for such an exchange using recently declassified materials from the Eisenhower Presidential Library in Abilene, Kansas - the responses of the President and his Cabinet to the “Operation Alert” series of war planning drills for federal officials, and the actual proclamations and executive orders that would form the basis for the continuation of the federal government. Contemporary legal responses are then examined, both those advocating an expansion of the president’s power beyond planning documents and those advancing definitive limits. Part III employs modern constitutional theory to considers legislative and judicial resistance against an overbroad executive response to a cataclysmic national disaster. Attention is given to potential congressional disputes with the ad hoc investiture of regulatory and peacekeeping authority in executive agencies, the dearth of independent information-gathering channels and criteria to measure the severity and duration of the crisis, the scope of president’s use of the military under cover of defensive operations, and the judiciary’s role in moderating these disputes or refusing to hear them altogether. Part IV advances a series of test questions suitable for examining a constitutionally infirm executive response to a major national crisis, be it an atomic strike or a modern-day terrorist attack. While a tactical nuclear war never came to pass between the United States and its Soviet adversaries, this paper should not be approached as a discourse on historical hypotheticals. Nor is it merely a digressive tale in an examination of the forces and events that prompted the passage of the Twenty-Sixth Amendment. Instead, it should serve as a simulacrum for the ability of the Executive Branch to proactively claim for itself broad powers in the face of extraordinary circumstances - chaos, on home soil, whatever the form it may take - and the informational and institutional limitations Congress and the courts must grapple with in curbing such a state of emergency.