by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs
In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.” Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003. Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.
The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering. According to the unitary executive theory, since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security. This is an enormous power: critics charge that it effectively places the president above the law. Advocates of broad presidential power argue it is necessary to defend the nation against the threat posed by terrorism.
In the fall of 2009, I was designing a new class on presidential national security power—what I call “emergency presidential power”. I call it “emergency” power because presidents have often claimed the need for extraordinary power during emergency or crisis—whether real or contrived. Such power has sometimes been wielded unilaterally, sometimes with congressional authorization—or, perhaps it would be better to say, claimed authorization.
I was interested in providing a way for students to understand and assess the ways in which presidential power has been used since 9/11. In order to do this, I wanted to begin by providing historical context, starting with the origins of the Constitution and continuing by examining the historical use of emergency presidential power before the September 11 attacks. This would provide a useful way to understand what had happened after 9/11, and to consider whether the Bush administration had acted legitimately.
I did not intend to present a specific argument as to the best way to define emergency presidential power. Instead, I wanted to present students with the evidence and the arguments made by both sides. How had the Bush administration justified its actions? How had critics responded? Who had the best case—taking the text of the Constitution, historical evidence, judicial precedent, and interbranch practice into account? As I planned for the course, I looked for a textbook I could use. When I couldn’t find anything that looked like an exact fit, I decided to design my own materials.
Over the past four years, those materials developed into Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror. The book begins with foundational materials – the Constitution itself and its origins, the Federalist Papers, Washington’s Neutrality Proclamation and the related Pacificus-Helvidius debate – followed by presidential practice since Washington. I discuss the odd history of the sole organ doctrine, the question as to whether Lincoln constitutionalized Lockean prerogative, Roosevelt’s actions during World War Two, Truman during the Korean War, and Nixon’s use of power against his critics and political opponents. Historical discussion sets the stage for examination of the post 9/11 presidency, beginning of course with the Bush administration. Along the way, I have added chapters about the Obama administration. As a candidate, Barack Obama criticized the Bush administration’s approach to emergency power and promised to restore the rule of law. As president, Obama and executive branch lawyers have found ways to justify broad presidential power, for instance by unilaterally authorizing military action in Libya and ordering the killing of Anwar al-Awlaki, a U.S. citizen and AQAP member who the administration said had taken an operational role in planning attacks against the United States. (The Syria episode took place too late to include in this book).
The book provides students, and anyone interested in the debate over the scope and limits of emergency presidential power, with the raw materials needed to make sense of the debate. It is essential, of course, to understand scholarly perspectives, and I explain the differences between scholars like Louis Fisher, who emphasizes checks and balances, the need to place presidential power under the rule of law, and Adrian Vermeule or Eric Posner, who argue that presidential power cannot be, and should not be, restrained by the rule of law.
Harold Koh is a scholar who earned a reputation as a critic of unrestrained presidential power and, before 2009, would have been associated with the Fisher camp. In 2008, Koh predicted that, when it comes to the rule of law, “the last eight years are far less important than the next [eight] years.” I think he was right, but I am not sure yet what the verdict is. More than five years after Koh made his statement, the question today is whether the Obama administration (in which Koh served as an executive branch lawyer) has, in fact, taken a substantively different approach than the Bush administration when it comes to defining presidential power. That will continue to be a central question as President Obama finishes his second term, and when future presidents take office. As the amorphous “war on terror” continues on, with no clear end in sight, the essential problem for constitutional democracy will be whether executive branch officials, lawyers, and scholars can find ways to ensure that presidents have the ability to defend the nation while also ensuring that power is limited by the rule of law. I hope that this book provides some ways to think about this problem, and to arrive at some satisfactory solutions.