Exploring the Limits of Presidential Power

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.

ACS’s ‘Toward a More Perfect Union’ Provides Ideas, Proposals for Second Obama Term

by Jeremy Leaming

Nearly a week after providing a staunchly liberal vision for a second term –– leading law professors, attorneys and other advocates are providing via an ACS project ideas and proposals for the administration’s second term. (Regarding the tone and vision of the president’s second Inaugural Address, some apparently believe the president was merely defending New Deal programs and policy the Clinton administration had supposedly advanced.)

The ACS project, “Toward a More Perfect Union: A Progressive Blueprint for the Second Term,” was recently launched with three Issue Briefs:

Former U.S. Pardon Attorney Margaret Colgate Love looks at why the presidential pardon power “has lost its vigor, its integrity, and its sense of purpose,” and argues why it should be reinvigorated, as well as offering examples, many from the states, for reforming the process.

Brookings Visiting Fellow Russell Wheeler examines the Obama administration’s record of filling federal judgeships during his first term and puts forth ideas for fixing a judicial nominations process that has become increasingly rancorous and ineffective. In a Brookings’ Up Frontblog post, Wheeler, a leading expert on the federal bench, explains, in part, why the process needs reforming. “First, judicial vacancies, which declined in Clinton’s and Bush’s first terms, increased during Obama’s. Empty judgeships hamper the federal courts’ ability to do their jobs – to sort out contractual disputes and other matters that, left unresolved, contribute to economic uncertainty, as well dispose of criminal complaints and adjudicate claims of discrimination and civil liberties violations.”

University of Michigan Law School Professor David M. Uhlmann urges the Obama administration to exert great presidential leadership on climate change. Uhlmann, director of the law school’s Environmental Law and Policy Program, noted the small steps the Obama administration took during its first term. But, citing the work of climate scientists, Uhlmann warns that if our country fails “to limit greenhouse gas emissions, searing heat, widespread drought, destructive storms, and massive flooding will become commonplace.” Moreover, Uhlmann argues that climate change will be a “legacy issue” for the president – “either because he helped chart a course toward a sustainable future or because America failed to act while it was still possible to prevent catastrophic climate change. Uhlmann’s Issue Brief goes on to provide ways for the president to act, even without the help of Congress, to put the nation on a path toward sustainable resources.

During his second inaugural, the president reminded us that “preserving our individual freedoms ultimately requires collective action” and unlike too many of his predecessors lauded the noble goal of advancing equality. Obama also took a shot at right-wing economic policy that is all about coddling the superwealthy at the expense of everyone else.

The president also called for collective action on climate change.

“We, the people, still believe that our obligations as Americans are not just to ourselves, but to all posterity,” Obama said. “We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires and crippling drought and more powerful storms.”

He continued the “path towards sustainable energy sources will be long and sometimes difficult. But America cannot resist this transition, we must lead it.”

The ACS Project is not only intended for the administration. We hope the work inspires, informs and sparks discussion. The forthcoming Issue Briefs to conclude the series will focus on homeland security, bolstering liberty through ‘mutual aid,’ immigration reform, the indigent defense system, modern tools for advancing equal opportunity and an examination of the FEC’s actions, or lack thereof, to regulate the financing of federal elections.

Our Liberal Constitution

By Adam Winkler, a professor at the UCLA School of Law, and author of Gunfight: The Battle over the Right to Bear Arms in America. This post is part of an ACSblog Constitution Day Symposium.

Over the past three decades, conservative legal commentators have promoted a narrative about our Constitution that puts our hallowed text at odds with the goals of liberals. The Constitution, this story goes, is a profoundly conservative document whose words and principles tilt favorably towards the policy goals of today’s Republican Party: Small government. Law and order. Hostile to gay rights. Opposed to campaign finance law and affirmative action. Favoring nearly unbridled executive power in matters of war and foreign policy. If only jurists stuck to history – by interpreting the text by way of original intent or, alternatively, original meaning, rather than the living constitutionalism favored by Warren Court liberals – we would see the Constitution in its true light.

There’s just one problem with this story. It’s not true.

The Constitution was designed by the Framers to be a radically progressive document. The founding generation was comprised of revolutionaries, people who sought to make a new system of government that broadened rights rather than limited them. Their handiwork was itself thoroughly reformed by another group of progressives: the radical Republicans who added the Reconstruction Amendments. Over and over again, the Constitution has been revised by people inspired by liberal ideas, from the populists who sought the direct elections of senators to woman rights proponents who fought for the right to vote. Taken as a whole, the Constitution is anything but a conservative document. And while its words and principles don’t favor any political party, many of its core ideas support the policy goals of modern-day liberals.

Take, for instance, the argument that the Constitution favors small government. It is undoubtedly true that the framers wanted to circumscribe the power of government; that’s why we have the separation of powers, federalism, and a Bill of Rights. Yet often ignored is that the Framers crafted the Constitution to expand the powers of government so that Congress could effectively solve national problems. The document the Constitution replaced – the Articles of Confederation – hobbled government too much and the men who met in Philadelphia sought to rectify that error.

While the federal government is indeed one of limited powers, as it should be, when acting pursuant to an enumerated power, federal authority is plenary. Some critics of the modern Supreme Court say Congress has assumed a much broader power under the Commerce Clause than originally intended because of misguided interpretations of the Supreme Court. Yet what has grown is not so much the formal power as the amount of commerce among the several states. The framers didn’t envision Congress’s current authority – because they couldn’t have imagined the current national economy.

Nor is the document favorable to the law and order views that have animated so much of the conservative backlash against the Warren Court’s criminal justice rulings. Look at the Bill of Rights. Almost all of its provisions are protections for accused criminals. The Constitution was designed to make it hard to convict someone of a crime, not make it easy. And while the drafters of the 14th Amendment never thought about how its words would apply to questions of gay rights, the text makes no distinctions on the basis of sexual orientation and demands equal protection of the laws and due process for everyone. Affirmative action? No Congress has adopted more racial preferences than the Congress that proposed the 14th Amendment for ratification.

One could go on and on. The basic point remains the same. Our Constitution is deeply imbued with liberal values. We don’t need a living Constitution to advance the principles of equal citizenship. All we need is to stay true to our Constitution’s text and the bold, progressive principles it embodies.

'To Promote the General Welfare'

By Martha F. Davis, Professor of Law, Northeastern University School of Law.

The national Constitution is a singular document, but it is not unique. All 50 states of the U.S. and Puerto Rico have their own constitutions, some of which -- through text or interpretation -- stake out approaches that are very different from the federal document. It is worth thinking about the alternative paths that these state documents take, and the possibilities that they raise, as we celebrate and critique the national Constitution on this Constitution Day.

This entry focuses on one area of significant difference between state and federal constitutions: their treatment of economic and social rights.

The national Constitution addresses economic and social rights prominently but with little specificity. The Preamble states that an overriding purpose of the U.S. Constitution is to “promote the general welfare,” indicating that issues such as poverty, housing, food and other economic and social welfare issues facing the citizenry were of central concern to the framers. However, the Bill of Rights has been largely construed to provide procedural mechanisms for fair adjudication of those rights rather than carving out claims on the government to ensure that individuals actually have any social and economic assets to protect. Efforts to convince courts of alternate constitutional interpretations have generally failed. The Supreme Court has ruled, for example, that while the due process clause of the 14th amendment ensures fair processes for welfare recipients, there is no underlying constitutional right to a minimum standard of living. Similarly, the Supreme Court has not found a general right to education derived from the more explicit constitutional guarantees of political participation and equal protection that might be deemed to presuppose an educational baseline.

Many state constitutions, in contrast, articulate positive rights to welfare, health, education, and the right to work. One of the most specific of these provisions, article XVII of the New York State Constitution, states that “the aid, care and support of the needy are public concerns and shall be provided by the state…in such manner and by such means” as the legislature shall determine. The Constitution of North Dakota provides a similarly specific right to education, stating that “the legislative assembly shall provide for a uniform system of free public schools throughout the state.” Alaska’s constitution, adopted at the time of statehood in 1959, addresses the public health of state inhabitants, as does Hawaii’s, which states that “the State shall provide for the protection and promotion of the public health.” Finally, many state constitutions also address the affirmative right to work and the right to organize as members of trade unions. For example, the New York State Constitution states, “employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” Several state constitutions also specifically address working hours and working conditions.

In adjudicating economic and social rights, state courts are often dealing with texts substantially different from and more specific than the federal constitutional treatment of these rights. But at a minimum, the state constitutional experience certainly demonstrates that these matters, critical to the general welfare, are of appropriate constitutional concern. In a different time, and with a different Court, the General Welfare clause of the U.S. Constitution might be linked to a more robust understanding of constitutional equality to give substantive meaning to the Bill of Rights. Given the textual support for this approach to federal constitutional interpretation, it is hard to see how even Justice Scalia could object.

Hurricane Katrina: Five Years Later, And Still We Rise

By Nsombi Lambright, Executive Director of the American Civil Liberties Union of Mississippi.

I can't believe that five years have passed since Hurricane Katrina devastated Gulf Coast communities in Louisiana, Mississippi and Alabama. And although groups and advocates who were experienced in disaster recovery told us that it would take at least ten years to rebuild, I never imagined that five years later, we'd still face the same challenges. The fifth anniversary of Hurricane Katrina; are we celebrating growth and recovery, commemorating a tragedy, or both?

As I viewed the film "Trouble the Water" this week, I was mixed up inside. The ACLU of Mississippi partnered with an organization started by Katrina Survivors who relocated from New Orleans to Jackson, called Rise Above Katrina, to show the film at Tougaloo College, a historically black college in Mississippi. I met the New Orleans natives from Rise Above Katrina and hundreds of others from the Mississippi Gulf Coast immediately after Hurricane Katrina as the ACLU began to monitor the Government's overall response to the disaster as well as the disparities between services provided to white communities and people of color communities. In 2006, the ACLU participated in a U.S. delegation to Geneva to discuss the impact of these disparities to the United Nations Human Rights Committee. The ACLU also provided technical and legal assistance to Rise Above Katrina when they were threatened by law enforcement when protesting in front of the American Red Cross offices in Jackson. The group protested the American Red Cross' distribution of disaster relief funds.

As I interacted with Wilma Taylor and LaShawn Traylor and some of the other survivors, I thought about how far they'd come. Wilma is a Gulf Coast Fellow who is starting her own organization to advocate for individuals with disabilities. LaShawn is finishing her education and continuing her ministry. They've moved into new homes, celebrated births.

Life has moved on. They have risen above Katrina. However, there's still a glimpse of sadness remaining in their eyes. It's a sadness that allows you to travel into their bodies and view the pain in their souls. You hear it when they talk about loved ones who didn't make it through the storm. You hear it when they talk about their disappointment in the governments that let them down. The city of New Orleans, which did not provide transportation for people to leave; the state of Louisiana, which brought military and law enforcement in to shoot and arrest survivors; the state of Mississippi, which withheld federal dollars from everyone except homeowners; the city of Jackson, which moved everyone out of the temporary shelter of the coliseum because a Disney show was coming to town; Harrison County, the place that has not rebuilt shelters for the homeless and arrests people for not having a place to rest their heads at night.

The list of disappointments is endless. And still they rise. They rose above the storm to accomplish great things. They rose above the storm with new friends and family who were survivors too. They rose above the storm with a new sense of awareness about the importance of fighting for those who cannot fight for themselves. And even though they are still rising, they don't forget; they won't forget; they can't forget. I'll be there with them, rising too; until there is true freedom and justice for all!

[Photo courtesy of Infrogmation]

"No Rights Which the White Man was Bound to Respect": The Dred Scott Decision

by Martin Magnusson, Editor-at-Large

This month marks the 150th anniversary of the Supreme Court's infamous Dred Scott v. Sanford case, in which an African American slave sued for his freedom. Dred Scott's argument was that because he had been brought into free territories, he could not be returned to the bonds of slavery. Over the course of eleven years, his case was litigated several times over and eventually wound its way into the United States Supreme Court.

On March 6, 1857, Chief Justice Roger Taney issued what is widely regarded as the worst Supreme Court opinion ever. He noted that the question before the Court was whether African Americans are citizens of the United States and thus able to file suit in federal court. His analysis of that issue is couched in abjectly racist language:

[African Americans] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.

The response to this opinion was immediate. Rather than settle the issue of slavery, it simply inflamed public opinion and divided the country further. Frederick Douglass assailed Chief Justice Taney's opinion, noting that the rights of African Americans derive not from any judicial pronouncement, but from natural law:

We are now told, in tones of lofty exultation, that the day is lost all lost and that we might as well give up the struggle. The highest authority has spoken. The voice of the Supreme Court has gone out over the troubled waves of the National Conscience, saying peace, be still . . . The Supreme Court of the United States is not the only power in this world. It is very great, but the Supreme Court of the Almighty is greater.

This understanding of Dred Scott has now become almost universal. During his recent confirmation hearings, Chief Justice John Roberts was asked about the Dred Scott decision. He characterized it as a deplorable act of judicial fiat, claiming that it is

[P]erhaps the most egregious example of judicial activism in our history . . . in which the court went far beyond what was necessary to decide the case. And really I think historians would say that the Supreme Court tried to put itself in the position of resolving the dispute about the extension of slavery and resolving it in a particular way that it thought was best for the nation. And we saw what disastrous consequences flowed from that.

Chief Justice Roberts seems to define judicial activism as the Court's officious resolution of an ongoing national debate. It is certainly easy to decry the Dred Scott decision, which is uniformly reviled, as judicial activism. If the Court had concluded that freed slaves were entitled to full national citizenship, though, would it be as easy to characterize that conclusion as judicial activism? In a recent episode of C-SPAN's America and the Courts, Professor Mark Graber expressed his sentiment on that issue, noting that “judicial activism is when the court makes rulings that I do not like . . . I think we would all be better off if we skipped the words the 'judicial activism' from our vocabulary.”

The Dred Scott decision is remembered as dividing the nation, precipitating the Civil War and ultimately being overturned by the Thirteenth and Fourteenth Amendments. 150 years later, one might ask what the legacy of the Dred Scott decision is. Perhaps its legacy is seen most starkly in the war on terror. In a recent SSRN paper, Professors Jack Balkin and Sanford Levinson suggests that Chief Justice Taney's analysis of who is a entitled to the rights of citizenship is eerily evocative of ongoing debates over who is entitled to constitutional protections:

We get closer to understanding Taney’s logic when we think about the obligations we owe to suspected enemies of the state, and, in particular, how we should conduct what the Bush Administration terms the “global war on terror.” Surely the most dramatic example involves the Administration’s assertions of authority in a famous Office of Legal Counsel . . .  memo to engage in torture—or “cruel, inhuman, and degrading” methods of interrogation—on those persons the President deems, often by fiat, potential enemies of the country. Torture, almost by definition, requires treating another person as if he or she has no rights that the interrogator is “bound to respect.”