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

3 - Lincoln and the Wartime Constitution

28 3 lin­ coln and the war­ time con­ sti­ tu­ tion As the na­ tion moved into the nine­ teenth cen­ tury, the scope and lim­ its of emer­ gency pres­ i­ den­ tial power re­ mained un­ cer­ tain. Adams had ex­ erted ex­ traor­ di­ nary power dur­ ing a time of cri­ sis, but he had done so pur­ su­ ant to spe­ cific acts of Con­ gress. Some of his suc­ ces­ sors fur­ ther ­ pressed the lim­ its of their au­ thor­ ity in the con­ text of na­ tional se­ cur­ ity,1 act­ ing with­ out au­ thor­ iza­ tion from Con­ gress.2 In 1846, Pres­ i­ dent James Polk, who was seek­ ing to ex­ pand U.S. ter­ ri­ tory, sent­ troops into “dis­ puted ter­ ri­ tory along the ­ Texas-Mexico bor­ der.”3 Polk jus­ tified his ac­ tion as a de­ fen­ sive meas­ ure taken in re­ sponse to the ­ threat that Mex­ ico might at­ tack Texas.4 When the U.S. ­ troops—them­ selves seen as in­ vad­ ers by Mex­ ico—were at­ tacked by Mex­ i­ can ­ forces, Polk “stam­ peded Con­ gress into a rec­ og­ ni­ tion of a state of war.”5 Polk ­ seemed to be ex­ pand­ ing the idea that the Con­ sti­ tu­ tion im­ pli­ citly pro­ vides pres­ i­ dents with the au­ thor­ ity to re­ spond ­ quickly to na­ tional se­ cur­ ity ­ threats. His ac­ tions ­ pointed out a flaw in the the­ ory of im­ plied emer­ gency pres­ i­ den­ tial pow­ ers by dem­ on­ strat­ ing that the ac­ tual ex­ is­ tence of an “emer­ gency” could be sub­ jec­ tively de­ ter­ mined. ­ Polk’s crit­ ics ­ argued that his view of pres­ i­ den­ tial power was dan­ ger­ ous. Abra­ ham Lin­ coln, then a mem­ ber of the U.S. House of Rep­ re­ sen­ ta­ tives, ­ argued that ­ Polk’s ac­ tions in es­ sen­ tially in­ itiat­ ing war on his own and later seek­ ing con­ gres­ sional rec­ og­ ni­ tion of the es­ tab­ lished fact of war were rem­ i­ nis­ cent of the “Kingly op­ pres­ sions” that drove the Fram­ ers to as­ sign ­ war-making power to Con­ gress. Lin­ coln sug­ gested that ­ Polk’s de­ fend­ ers gave the pres­ i­ dent the power of a mon­ arch that “no one man” ­ should pos­ sess.6 Other early and ­ mid-nineteenth-century pres­ i­ dents ­ looked to spe­ cific au­ thor­ iza­ tion from Con­ gress be­ fore tak­ ing ac­ tion, as Adams had done. For 29 lincoln and the wartime constitution in­ stance, ­ Thomas Jef­ fer­ son took mil­ i­ tary meas­ ures ­ against the Bar­ bary­ states in North Af­ rica four ­ decades be­ fore ­ Polk’s ac­ tion ­ against Mex­ ico, but Jef­ fer­ son ­ sought and re­ ceived ex­ plicit con­ gres­ sional au­ thor­ iza­ tion.7 Jef­ fer­ son ac­ cepted a ver­ sion of uni­ lat­ eral emer­ gency pres­ i­ den­ tial power,­ though he be­ lieved that a pres­ i­ dent who in­ itially acted on his own to de­ fend the na­ tion would ul­ ti­ mately have to seek ap­ proval from Con­ gress; oth­ er­ wise, such ac­ tion would be il­ le­ git­ i­ mate.8 When Pres­ i­ dent James Bu­ cha­ nan,­ Lincoln’s pre­ de­ ces­ sor, be­ lieved mil­ i­ tary ac­ tion might be nec­ es­ sary to re­ spond to po­ ten­ tial ­ threats to ­ American ­ shipping in Cen­ tral Amer­ ica, he ex­ pressly asked Con­ gress for ad­ vance au­ thor­ ity to de­ ploy mil­ i­ tary ­ forces, if the circum­ stances de­ manded such ac­ tion. Con­ gress re­ jected Pres­ i­ dent ­ Buchanan’s re­ quest, and one sen­ a­ tor ­ argued that Bu­ cha­ nan was es­ sen­ tially ask­ ing Con­ gress to give him un­ bounded power to de­ cide when and how war could be waged—an at­ tempt to usurp ­ Congress’s con­ sti­ tu­ tional power to de­ clare war.9 De­ spite his crit­ i­ cism of the ­ events lead­ ing to the Mex­ i­ can War, when Lin­ coln be­ came pres­ i­ dent he took a po­ si­ tion that was, on the sur­ face,­ closer...