Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror

Foreword

ix fore­ word Louis ­ Fisher In this book Chris Ed­ el­ son con­ fronts the grow­ ing in­ de­ pen­ dence of pres­ i­ dents over what he calls emer­ gency power: power re­ lated to na­ tional se­ cur­ ity, ­ foreign pol­ icy, and war that re­ sponds to ­ claims of an im­ mi­ nent­ threat or cri­ sis.1 This type of pres­ i­ den­ tial power is dan­ ger­ ous, es­ pe­ cially when pres­ i­ dents act uni­ lat­ er­ ally, in se­ cret, and on the basis of false, de­ cep­ tive, and un­ re­ li­ able in­ for­ ma­ tion. Be­ gin­ ning with Pres­ i­ dent ­ Truman’s use of mil­ i­ tary force ­ against North Korea in June 1950, pres­ i­ dents have system­ at­ i­ cally circum­ vented Con­ gress, vi­ o­ lated stat­ utes and the Con­ sti­ tu­ tion, and under­ mined dem­ o­ cratic govern­ ment. Even be­ fore Tru­ man, pres­ i­ dents in­ voked ­ threats to na­ tional se­ cur­ ity—some­ times real, some­ times ex­ ag­ ger­ ated—to jus­ tify emer­ gency power. Some­ times they ac­ knowl­ edged con­ sti­ tu­ tional ­ checks and bal­ ances. For ex­ am­ ple, Pres­ i­ dent Lin­ coln ­ sought retroac­ tive con­ gres­ sional ap­ proval to make legal the ac­ tions he took at the be­ gin­ ning of the Civil War. At other times, pres­ i­ dents ­ claimed power that could not be ­ checked by other­ branches. Pres­ i­ dents who con­ cen­ trate power in the ex­ ec­ u­ tive ­ branch ­ threaten the rule of law, the ­ system of ­ checks and bal­ ances, and in­ di­ vid­ ual ­ rights. Post-9/11 pres­ i­ dents have been among the worst of­ fend­ ers. Among the­ wrongs that re­ sult from these pres­ i­ den­ tial in­ itia­ tives: claim­ ing that sup­ port from the UN Se­ cur­ ity Coun­ cil and NATO coun­ tries is a con­ sti­ tu­ tional sub­ sti­ tute for au­ thor­ ity from Con­ gress, de­ tain­ ing sus­ pects (in­ clud­ ing U.S. cit­ i­ zens) with­ out charg­ ing them and sub­ ject­ ing them to trial, using tor­ ture dur­ ing inter­ ro­ ga­ tions, con­ duct­ ing war­ rant­ less sur­ veil­ lance, and rely­ ing on se­ cret legal memos to carry out tar­ geted kill­ ing with­ out ju­ di­ cial pro­ cess or leg­ is­ la­ tive con­ trols. Uni­ lat­ eral ex­ ec­ u­ tive ac­ tions reg­ u­ larly in­ flict harm on the na­ tion and the po­ lit­ i­ cal ­ system. Even­ tu­ ally they come at a high cost to pres­ i­ dents and their par­ ties. x foreword Emer­ gency Pres­ i­ den­ tial Power: From the Draft­ ing of the Con­ sti­ tu­ tion to the War on Ter­ ror of­ fers im­ por­ tant as­ sis­ tance in under­ stand­ ing the le­ git­ i­ mate ­ sources and lim­ its of ex­ ec­ u­ tive power. It sheds light on emerg­ ing legal and po­ lit­ i­ cal is­ sues that flow from in­ flated ­ claims of pres­ i­ den­ tial power. The need to ­ heighten our under­ stand­ ing ap­ plies not ­ merely to pub­ lic of­ fi­ cials and spe­ cial­ ists. It must reach the gen­ eral pub­ lic. With­ out that knowl­ edge the as­ pi­ ra­ tion for ­ self-government ­ through ­ elected of­ fi­ cials is in jeop­ ardy. Al­ though the ­ United ­ States fre­ quently an­ nounces its de­ sire to ­ spread de­ moc­ racy to other coun­ tries, there is se­ ri­ ous con­ cern about the ­ health and fu­ ture of de­ moc­ racy at home. Ed­ el­ son pro­ vides the foun­ da­ tion for under­ stand­ ing the dan­ gers of pres­ i­ den­ tial power by pre­ sent­ ing in clear terms the con­ sti­ tu­ tional prin­ ci­ ples that were es­ tab­ lished in 1787 and how they apply to po­ lit­ i­ cal de­ ci­ sions today. It is often ­ argued that the ­ Framers’ de­ ci­ sion to adopt ­ eighteenthcentury prin­ ci­ ples has no ap­ pli­ ca­ tion to con­ tem­ po­ rary times. Yet the Fram­ ers fully ap­ pre­ ciated the dan­ gers of un­ checked ex­ ec­ u­ tive power. They saw the pat­ tern in other coun­ tries of ex­ ec...