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Article Excerpt
Respect for the Constitution and joint action with Congress provide the strongest possible signal to both enemies and allies. By following those principles, other countries understand that U.S. policy has a broad base of support and is not the result of temporary, unilateral presidential actions that divide the country and are likely to be reversed. National security is strengthened when presidents act in concert with other branches and remain faithful to constitutional principles.
In periods of emergency and threats to national security (perceived or real), the rule of law has often taken a backseat to presidential initiatives and abuses. Although this pattern is a conspicuous part of American history, it is not necessary to repeat the same mistakes every time. Faced with genuine emergencies, there are legitimate methods of executive action that are consistent with constitutional values. There are good precedents from the past and a number of bad ones.
In response to the 9/11 terrorist attacks, the United States largely decided to adopt the bad ones. The responsibility for this damage to the Constitution lies primarily with the executive branch, but illegal and unconstitutional actions cannot occur and persist without an acquiescent Congress and a compliant judiciary. The Constitution's design, relying on checks and balances and the system of separation of powers, was repeatedly ignored after 9/11. There are several reasons for these constitutional violations. Understanding them is an essential first step in returning to, and safeguarding, the rule of law and constitutional government.
Making Emergency Actions Legitimate
The Constitution can be protected in times of crisis. If an emergency occurs and there is no opportunity for executive officers to seek legislative authority, the executive may take action--sometimes in the absence of law and sometimes against it--for the public good. This is called the "Lockean prerogative." John Locke advised that in the event of executive abuse, the primary remedy was an "appeal to Heaven."
A more secular and constitutional safeguard emerged under the American system. Unilateral presidential measures at a time of extraordinary crisis have to be followed promptly by congressional action--by the entire Congress and not some subgroup within it. (1) To preserve the constitutional order, the executive prerogative is subject to two conditions. The president must (1) acknowledge that the emergency actions are not legal or constitutional and (2) for that very reason come to the legislative branch and explain the actions taken, the reasons for the actions, and ask the legislative branch to pass a bill making the illegal actions legal.
Those steps were followed by President Abraham Lincoln after the Civil War began. He took actions we are all familiar with, including withdrawing funds from the treasury without an appropriation, calling up the troops, placing a blockade on the South, and suspending the writ of habeas corpus. In ordering those actions, Lincoln never claimed to be acting legally or constitutionally, and he never argued that Article II somehow allowed him to do what he did.
Instead, Lincoln admitted to exceeding the constitutional boundaries of his office and therefore needed the sanction of Congress. He told Congress that his actions, "whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them." He explained that he used not only his Article II powers but also the Article I powers of Congress, concluding that his actions were not "beyond the constitutional competency of Congress." He recognized that the superior lawmaking body was Congress, not the president. When an executive acts in this manner, he invites two possible consequences: either support from the legislative branch or impeachment and removal from office. Congress, acting with the explicit understanding that Lincoln's actions were illegal, passed legislation retroactively approving and making valid all of his acts, proclamations, and orders. (2)
The Illusory Claim of "Inherent" Powers
President Lincoln acted at a time of the gravest emergency the United States has ever faced. What happened after 9/11 did not follow his model. Although President George W. Bush initially came to Congress to seek the Authorization for the Use of Military Force, the USA PATRIOT Act, and the Iraq Resolution of 2002, increasingly the executive branch acted unilaterally and in secret by relying on powers and authorities considered "inherent" in the presidency.
On several occasions, the Supreme Court has described the federal government as one of enumerated powers. In 1995 it stated, "We start with first principles. The Constitution creates a Federal Government of enumerated powers." (3) It repeated that claim two years later. (4) In fact, it is incorrect to call the federal government one of enumerated powers. If that were true, the Court would have no power of judicial review, the president would have no power to remove department heads, and Congress would have no power to investigate. Those powers (and other powers routinely used) are not expressly stated in the Constitution.
The framers created a federal government of enumerated and implied powers. Express powers are clearly stated in the text of the Constitution; implied powers are those that can be reasonably drawn from express powers. "Inherent" is sometimes used as synonymous with "implied," but it is radically different. Inherent powers are not drawn from express powers. Inherent power has been defined in this manner: "An authority possessed without it being derived from another .... Powers over and beyond those explicitly granted in the Constitution or reasonably to be implied from express powers" (Black 1979, 703).
The purpose of the U.S. Constitution is to specify and confine governmental powers in order to protect individual rights and liberties. Express and implied powers serve that principle. The Constitution is undermined by claims of open-ended authorities that cannot be located, defined, or circumscribed. What "inheres" in the president? The standard collegiate dictionary explains that "inherent" describes the "essential character of something: belonging by nature or habit." (5) How does one determine what is essential or part of nature? Those words are so nebulous that they invite political abuse, offer convenient justifications for illegal and unconstitutional actions, and endanger individual liberties (Fisher 2007a).
Whenever the executive branch justifies its actions on the basis of "inherent" powers, the rule of law is in jeopardy. To preserve a constitutional system, executive officers must identify express or implied powers for their actions. They must do so reasonably and with appropriate respect for the duties of other branches and the rights and liberties of individuals.
It is sometimes argued that if the president functions on the basis of "inherent" powers drawn from Article II, Congress is powerless to pass legislation to limit his actions. Statutory powers, it is said, are necessarily subordinate to constitutional...
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