American Presidential Power and the War on Terror: Does the Constitution Matter?

Does the Constitution Matter?

Justin DePlato

• Publisher: Palgrave Pivot
• Year: 2015
• Print ISBN:
  9781349553310
  9781137539618
• eBook ISBN:
  9781137539625
• Topic: Politics & International Relations
• Subtopic: Law Theory & Practice
• Index: Politics & International Relations

This book examines the use of presidential power during the War on Terror. Justin DePlato joins the debate on whether the Constitution matters in determining how each branch of the federal government should use its power to combat the War on Terror. The actions and words of Presidents George W. Bush and Barack Obama are examined. DePlato's findings support the theory that executives use their own prerogative in determining what emergency powers are and how to use them. According to DePlato, the Presidents argue that their powers are implied in Article II of the Constitution, not expressed. This conclusion renders the Constitution meaningless in times of crisis. The author reveals that Presidents are becoming increasingly cavalier and that the nation should consider adopting an amendment to the Constitution to proffer expressed executive emergency powers.

1

The Founders’ Reasons and Justifications for Presidential Emergency Power

Abstract: The American Founders were very concerned about the power of the American Presidency. As such, they placed several limitations of presidential power via checks and balances. However, certain parts of Article II of the Constitution are very vague leaving open the mysterious question of whether or not presidents have implied powers. Such an example of implied power is presidential emergency power. In this chapter, I examine the Founders’ debate over whether or not executives should have an implied emergency power. I find that Hamilton and others agreed that executives should have unbridled, unlimited power in times of crisis; therefore, in America’s War on Terror, executive prerogative determines what powers to use and when to use them in order to combat the enemy. According to this view, the President is in no way constrained by the Constitution or Congress as he decides to wage war against the terrorists.

DePlato, Justin. American Presidential Power and the War on Terror: Does the Constitution Matter? New York: Palgrave Macmillan, 2015. DOI: 10.1057/9781137539625.0004.

Understanding presidential emergency power is rather confusing and, at times, muddled with irrationality and lack of legal precept. In the modern era, there is little to doubt, that scholars, pundits, elected officials, and the masses have become accustomed to expansive executive power in times of crisis. Often because of the wide-ranging scope of executive power during crisis, people tend to place presidential emergency power in the same discussion as presidential war power, whereas the two powers are completely separate from each other. Not all emergencies are wars, and not all wars are emergencies. To help illustrate this point, in this chapter, I will strictly adhere to emergency power as a power that is used to combat defined emergencies at the American national boundaries. Of course, this means that an emergency could be a foreign invasion, an internal insurrection, a terrorist attack, an economic crisis, or a weather catastrophe. Making this important distinction between emergency power and war power is important, because the Framers of the American Constitution understood emergency power to be related only to the aforementioned conditions. Wars of choice are not emergencies and thereby not covered under executive emergency power.

In this chapter, I painstakingly scour the documents at the Constitutional Convention and Founding of the nation, to understand the Framers’ reasoning for and against executive emergency power. The first half of this chapter places emphasis on the debate the Framers had over the powers of the executive. Principle point of analysis is rooted in Hamilton’s Federalist No. 70, and the Anti-Federalist challenge to executive powers in papers 69 and 70. As the Federalists make the case for a strong, decisive executive, one with competent powers and secrecy to dispatch such powers, the Anti-Federalists make chilling predictions about how American presidents would appear more like monarchs than constitutional presidents, if given such broad powers.

Many scholars remark on the debate over the composition of the executive—whether there should be one executive, or a plurality. Of course, the Federalists won the debate creating a unitary executive, and in this chapter, I explore how the Federalists won that debate. Hamilton’s assertions in Federalist No. 70 are worthy, but possibly they are exaggerated and even a case of logical fallacy (whereby presenting an argument on the worst-case scenario). There is no doubt that crisis creates fear and the nation wants resolve and justice following horrific attacks, like September 11, 2001. Does this mean that an executive may do whatever is necessary to “defeat the enemy,” even if it means violating the rights of any enemy combatant, which may or may not include civilians? Such a question was answered in Federalist No 70 and challenged in Anti-Federalist No. 69, which gives two different ways of looking at the same problem. Maybe we should enable the executive with broad competent powers to combat the enemy, and maybe this includes secrecy, and frankly, vicious means to the end. Or maybe, we should write laws providing power to combat the crisis. In this chapter, I try to elucidate both arguments using primary documents from the Founding of the nation and let the empirics speak for themselves.

In the second half of this chapter I explore the Constitutional question of executive emergency powers, simply put: Are executive emergency powers constitutional? Presidential legal precedence would have everyone in the modern era echoing a resounding yes to that question. In my book the Cavalier Presidency: Executive Power and Prerogative in Times of Crisis, I examined the use and justifications for executive emergency power across seven US presidencies, namely G. Washington, Jefferson, Madison, Jackson, Lincoln, Bush, and Obama. In all but one instance, Madison, the executives violated the Constitution in their pursuit of the bad guy. So often we hear in the modern era, well Lincoln did it, or Jefferson did it, so it must be the law of the land when Bush or Obama use expansive executive emergency powers, maybe yes, maybe no. Does it matter if prior executives have done so? Does precedence equal constitutionality?

I would suggest we step back, look at the Constitution, and determine whether executives have broad emergency powers. In order to answer that question I look at the main clauses of the Constitution that construct executive emergency power: The Vesting Clause, The Commander in Chief Clause, the Oath Clause, and the Take Care Clause of the Federal Constitution. Constructing a legal argument is nothing new, and taking all four clauses together presidents, alike, argued that they have whatever means necessary to combat the enemy, in times of crisis. The empirical analysis proffered in this chapter will, if nothing more, make you stop and think whether the President of the United States of America indeed have such broad emergency power.

The American model of government supports the constitutional interpretation of executive emergency power that favors the lockean/Hamiltonian idea that executives have unlimited power in times of crisis (including violating the Constitution). Executive prerogative determines what and how to exercise emergency powers, not enumerated in the Constitution. Therefore, in times of crisis presidents are above the law. Even though the word “emergency” does not appear in the Constitution, the idea of executive emergency power does, as an implied power. I show in this short book that there are four Clauses in the Constitution that constructively create an implied executive emergency power. They are: The Vesting Clause, the Commander in Chief Clause, the Oath Clause and the Take Care Clauses of the Federal Constitution.

Over the history of the United States, the people have become prone to accepting the alleged need for a transition from responsible to an authoritarian government in the time of emergency. This has happened primarily because Americans have become accustomed in accepting an interpretation of the Constitution that suggests that the rigid restraints on governmental authority may not apply in time of emergency. As America has become complacent with this understanding, the people have accordingly assigned to the Supreme Court the function of protecting the essentials of constitutionalism and democracy during periods of emergency, and thereafter.

In this chapter I explore the American perspective on executive emergency power. I examine the debate between the Federalists and Anti-Federalists regarding executive emergency powers. In all, the following questions are answered: How did the Federalists and Anti-Federalists conceptualize executive emergency powers? How does an executive respond to a crisis? Is it the sole domain of the Executive, or do the other branches also have latitude in the process?

Drawing on their experiences during the tumultuous Revolutionary War and the inherent flaws/failures of the Articles of Confederation, the Framers designed a Constitution that would enable the Federal Government with sufficient authority to respond to any national emergency. While so doing, the Framers were very aware of the possibility of insurrections, invasions, and catastrophes, which encouraged them to structure the Federal Government in a way to respond to such issues. They understood that in some cases, not all, such emergencies could only be met with the use of force by the military, which might even occur within the Continental United States. One of the main deficiencies of the Articles of Confederation was its failure to establish a Federal Government that could repel sudden attacks from within or without the country. As such, James Madison observed prior to the start of the Federal Convention that the main difficulty of the Articles was the “want of Guaranty to the States of their Constitutions and Laws against internal violence.”¹ In addition, Edmund Randolph argued along the same vein as Madison over his concerns that the previous government and the executive were unable to combat sudden attacks. Randolph stated at the Convention on May 29, 1787, that “the confederation produced no security against foreign invasion; congress not being permitted to prevent a war nor to support it by their own authority . . . subsequently rendered the government ineffective and impotent against sudden attacks.”²

The Federalist argument for executive emergency power

To begin, I examine the Federalist perspective on executive emergency powers. This examination is closely associated with writings of Alexander Hamilton, since he offers the most comprehensive explanation of the Federalist’s conceptualization of executive emergency powers. In this review I present Hamilton’s argument, which suggests that executive emergency powers are implicit in Article II of the Constitution and favors Locke’s concept of prerogative. Although the Federalists agree with Locke’s principle idea of implicit emergency powers, the “prerogative,” the Federalists’ incorporation of such power is slightly different th...

Table of contents

• Cover
• Title
• Introduction: The Era of a War on Terror
• 1  The Founders Reasons and Justifications for Presidential Emergency Power
• 2  President G. W. Bush and the Hyper-unitary Approach to Waging the War on Terror
• 3  President Obama, the Nobel Peace Prize Winner and the War on Terror
• Conclusion: The Republic Is in Danger
• References
• Index