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

1 - The Constitution and Emergency Presidential Power

7 1 the con­ sti­ tu­ tion and emer­ gency pres­ i­ den­ tial power One ­ scholar has ob­ served that, con­ sid­ er­ ing the con­ sti­ tu­ tional frame­ work, “[one] would mar­ vel at how much Pres­ i­ dents have spun out of so lit­ tle” in terms of de­ fin­ ing pres­ i­ den­ tial war power.1 The ob­ ser­ va­ tion ap­ plies with even more force to emer­ gency pres­ i­ den­ tial power—the Con­ sti­ tu­ tion does not ex­ pressly grant any such power to the pres­ i­ dent. The only ex­ plicit ref­ er­ ence in the Con­ sti­ tu­ tion to emer­ gency power of any sort ap­ pears in Ar­ ti­ cle I, sec­ tion 9: “The priv­ i­ lege of the writ of ha­ beas cor­ pus shall not be sus­ pended, un­ less when in cases of re­ bel­ lion or in­ va­ sion the pub­ lic ­ safety may re­ quire it.” Since this pro­ vi­ sion, known as the Sus­ pen­ sion ­ Clause, ap­ pears in Ar­ ti­ cle I, which deals ­ mainly with con­ gres­ sional power and its lim­ i­ ta­ tions, the Su­ preme Court has con­ cluded that the emer­ gency power to sus­ pend the writ of ha­ beas cor­ pus be­ longs­ solely to Con­ gress.2 One could also de­ scribe the power “[t]o pro­ vide for call­ ing forth the mi­ li­ tia to ex­ e­ cute the laws of the union, sup­ press in­ sur­ rec­ tions and repel in­ va­ sions” or the power to de­ clare war as emer­ gency pow­ ers be­ cause these pow­ ers could be used to re­ spond to ­ threats to na­ tional se­ cur­ ity.3 How­ ever, like the power to sus­ pend ha­ beas cor­ pus, these pow­ ers are ex­ pressly as­ signed to Con­ gress—in Ar­ ti­ cle I, sec­ tion 8, of the Con­ sti­ tu­ tion. And yet, de­ spite the lack of any ex­ press au­ thor­ iza­ tion in the Con­ sti­ tu­ tion, pres­ i­ dents have in­ de­ pen­ dently ex­ er­ cised emer­ gency power, and­ courts and schol­ ars have jus­ tified its use in var­ y­ ing de­ grees.4 If the Con­ sti­ tu­ tion does not di­ rectly iden­ tify any emer­ gency pres­ i­ den­ tial power, where 8 the constitution and emergency presidential power does this idea come from? With­ out clear guid­ ance from the Con­ sti­ tu­ tion, how can we know the scope as well as the lim­ its of such power? Why­ should any unilateral emer­ gency pres­ i­ den­ tial power be rec­ og­ nized? Al­ though the Con­ sti­ tu­ tion does not spe­ cif­i­ cally as­ sign the pres­ i­ dent any in­ de­ pen­ dent emer­ gency power, schol­ ars cite sev­ eral rea­ sons for con­ clud­ ing such power ex­ ists. At the out­ set, it may be use­ ful to cat­ e­ go­ rize the var­ i­ ous jus­ tifi­ ca­ tions for emer­ gency pres­ i­ den­ tial power that we will en­ coun­ ter through­ out this book. lim­ ited uni­ lat­ eral emer­ gency pres­ i­ den­ tial power sub­ ject to retroac­ tive con­ gres­ sional ap­ proval Some schol­ ars con­ clude that only ­ strictly lim­ ited emer­ gency pres­ i­ den­ tial power ex­ ists—the power only to repel sud­ den at­ tacks or in­ va­ sions. This, its pro­ po­ nents argue, is a form of im­ plied emer­ gency power: if the na­ tion has a right to de­ fend it­ self ­ against sud­ den at­ tack or in­ va­ sion, then some­ one in govern­ ment must be able to ex­ er­ cise this right, and it makes sense, as a mat­ ter of both logic and his­ tor­ i­ cal ­ record, that the pres­ i­ dent, as com­ mander in chief of the mil­ i­ tary, would ex­ er­ cise the na­ tional right of ­ self-preservation. Such power is said to flow from the ­ president’s enu­ mer­ ated powers and is lim­ ited by other pro­ vi­ sions of the Con­ sti­ tu­ tion, in­ clud­ ing the Bill of ­ Rights, and by the other ­ branches of the fed­ eral govern­ ment. Along these lines, the po­ lit­ i­ cal sci­ en­ tist...