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Emergency Presidential Power

From the Drafting of the Constitution to the War on Terror

Chris Edelson; Foreword by Louis Fisher

Publication Year: 2013

Can a U.S. president decide to hold suspected terrorists indefinitely without charges or secretly monitor telephone conversations and e-mails without a warrant in the interest of national security? Was the George W. Bush administration justified in authorizing waterboarding? Was President Obama justified in ordering the killing, without trial or hearing, of a U.S. citizen suspected of terrorist activity? Defining the scope and limits of emergency presidential power might seem easy—just turn to Article II of the Constitution. But as Chris Edelson shows, the reality is complicated. In times of crisis, presidents have frequently staked out claims to broad national security power. Ultimately it is up to the Congress, the courts, and the people to decide whether presidents are acting appropriately or have gone too far.
            Drawing on excerpts from the U.S. Constitution, Supreme Court opinions, Department of Justice memos, and other primary documents, Edelson weighs the various arguments that presidents have used to justify the expansive use of executive power in times of crisis. Emergency Presidential Power uses the historical record to evaluate and analyze presidential actions before and after the terrorist attacks of September 11, 2001. The choices of the twenty-first century, Edelson concludes, have pushed the boundaries of emergency presidential power in ways that may provide dangerous precedents for current and future commanders-in-chief.

Published by: University of Wisconsin Press

Contents

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pp. vii-viii

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Foreword

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pp. ix-xiii

In this book Chris Edelson confronts the growing independence of presidents over what he calls emergency power: power related to national security, foreign policy, and war that responds to claims of an imminent threat or crisis. 1 This type of presidential power is dangerous, especially when presidents act unilaterally, in secret, and on the basis of false, deceptive, ...

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Acknowledgments

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p. xv-xv

I began writing this book in the winter of 2009–10 when I could not find a suitable book to use for a new class I was teaching on emergency presidential power and the war on terror. I am grateful to the American University students in Government 296 and Government 226 who offered comments ...

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Introduction

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pp. 3-6

Americans understandably think of the U.S. Constitution as a document that defines (among other things) the scope of presidential power in war and peace, calm and crisis. If you follow political debate about constitutional interpretation, which focuses on distinctions between “activism” and “strict construction,” the process of defining presidential power would ...

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1 - The Constitution and Emergency Presidential Power

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pp. 7-19

One scholar has observed that, considering the constitutional framework, “[one] would marvel at how much Presidents have spun out of so little” in terms of defining presidential war power.1 The observation applies with even more force to emergency presidential power—the Constitution does not expressly grant any such power to the president. The only explicit ...

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2 - Presidential Power in the Young Republic: Washington's Neutrality Proclamation, A "Half-War" with France, and the Alien and Sedition Acts

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pp. 20-27

In the 1790s, a new nation began to develop the meaning of the Constitution in practice, filling in gaps and attempting to resolve ambiguities. The nation’s first president tested the limits of his power in the context of foreign affairs and matters of war and peace but ultimately recognized that Congress shared power in these areas. In 1793, with Great Britain and ...

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3 - Lincoln and the Wartime Constitution

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pp. 28-49

As the nation moved into the nineteenth century, the scope and limits of emergency presidential power remained uncertain. Adams had exerted extraordinary power during a time of crisis, but he had done so pursuant to specific acts of Congress. Some of his successors further pressed the limits of their authority in the context of national security,1 acting without ...

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4 - Setting Limits on Wartime Power? : The 'Ex Parte Milligan' Decision

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pp. 50-62

In the Prize Cases, the Supreme Court recognized some degree of implied emergency presidential power, but it did not describe this as an unlimited source of power. In the Ex parte Milligan case, decided in 1866, one year after the Civil War ended, the court made clear what some of the limits were.1 Lambdin Milligan had been arrested ...

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5 - Expanded Presidential Power During World War II: Nazi Saboteurs and Military Commissions

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pp. 63-81

World War II presented another crisis— not internal rebellion but external danger— that, like the Civil War, directly threatened the nation. 1 President Franklin D. Roosevelt, like Lincoln before him, claimed that this emergency justified independent presidential action. Though he often worked with Congress, he also acted unilaterally to ....

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6 - The Internment of Japanese Americans During World War II

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pp. 82-100

As Americans on the East Coast worried about landings by German saboteurs, Americans on the West Coast worried about a possible invasion and wondered whether they had to fear Japanese Americans who might ally with the invading enemy. Elected officials, including Earl Warren, who was then California’s attorney general, began speaking of ...

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7 - The 'Youngstown' Steel Seizure Case: The Court Sets Limits on Presidential Power

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pp. 101-116

During World War II, Roosevelt sometimes initially acted unilaterally on the basis of implied emergency power but was ultimately able to win support from the other branches of government. However, that support was sometimes purchased with counterfeit currency— in Quirin, the fiction that Roosevelt had acted in concert with Congress in setting up ...

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8 - Nixon, Watergate, and a Bid for Unbridled Presidential Power

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pp. 117-124

In the Youngstown case, decided in 1952, Justice Jackson’s concurring opinion made clear that there were limits on presidential power, even in wartime, and especially when turned inward (i.e., when applied within the United States). He was skeptical of recognizing any emergency presidential power that had not been authorized by Congress. Despite Jackson’s cautionary ...

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9 - Emergency Presidential Power at its Zenith: The Bush Administration and the Unitary Executive

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pp. 125-143

In the 1970s, especially after Nixon’s resignation, Congress passed a number of laws aimed at reining in presidential power, including the War Powers Act, the Foreign Intelligence Surveillance Act,1 and the Independent Counsel Act.2 Some saw these as important measures designed to prevent presidential overreaching. Others, including ...

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10 - Detaining and Trying Suspected Terrorists

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pp. 144-204

John Yoo’s argument that the president possesses plenary authority to make all decisions regarding the use of military force had consequences that went beyond the immediate decision to send troops to Afghanistan in October 2001. Conducting the “war on terror” also meant detaining suspected terrorists and gathering, through interrogation ...

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11 - Torture in the War on Terror

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pp. 205-224

When U.S. troops began to capture fighters in Afghanistan and when suspected terrorists were handed over to U.S. forces by allies (who often received a bounty), an initial question arose about what to do with the prisoners. As discussed in the previous chapter, the Bush administration sent many of them to Guantanamo Bay, to be ...

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12 - Warrantless Wiretapping: Presidential Power to Set Aside Acts of Congress?

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pp. 225-234

As we have seen, the Nixon administration used warrantless wiretapping as one of its methods for dealing with political enemies within the United States. After President Nixon’s resignation, the U.S. Senate voted in 1975 to establish the Church Committee.1 Headed by Senator Frank Church of Idaho, the committee was tasked with investigating ...

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13 - Detention and Military Commissions Under the Obama Administration

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pp. 235-241

Critics of the Bush administration’s definition and use of emergency presidential power hoped that President Barack Obama would endorse and apply a more limited version of emergency power. These critics saw signs for hope in the context of the detention system at Guantanamo. As one of his first acts in office, President Obama ...

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14 - The State Secrets Privilege: Emergency Presidential Power by Another Name?

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pp. 242-264

While the George W. Bush administration’s use of the state secrets privilege, as discussed in this chapter, and other secretive practices1 earned Bush the title of “the Secrecy President,”2 Barack Obama took office in 2009 promising a new era of government transparency3 and suggesting he would rein in presidential power. However, ...

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15 - The Obama Administration and Military Action in Libya

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pp. 265-273

In early 2011, the “Arab Spring” brought protest and revolution to countries in North Africa and the Middle East. During the first six weeks of 2011, popular uprisings brought down autocratic rulers in Tunisia and Libya. In February 2011, protests mounted against the Qadhafi regime in Libya. Libyan dictator Muammar Qadhafi dispatched ...

Notes

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pp. 275-340

Index

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pp. 341-359


E-ISBN-13: 9780299295332
E-ISBN-10: 0299295338
Print-ISBN-13: 9780299295349
Print-ISBN-10: 0299295346

Page Count: 336
Publication Year: 2013

Series Editor Byline: John Smith, Will Wordsworth