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Emergency presidential power: From the drafting of the Constitution to the War on Terror

January 22, 2014 by Chris Edelson


This article is an excerpt from “Emergency Presidential Power: From The Drafting Of The Constitution To The War on Terror,” by Chris Edelson. Reprinted by permission from the University of Wisconsin Press. Copyright 2013 by the Board of Regents of University of Wisconsin System. All rights reserved.


edelson400Americans 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 seem easy: just turn to Article II of the Constitution, which addresses executive power, and see what it has to say.


Reality, it turns out, is more complicated. As one scholar notes, “the text and history of Article II fail to offer decisive guidance regarding presidential power.”


When presidents want to take action, it is not always clear whether the Constitution provides the authority they desire. Some presidents are reluctant to act without clear constitutional or statutory authorization, but most presidents have not viewed their authority as restricted to the plain text of the Constitution or the explicit approval of Congress. When asked to review presidential actions, the Supreme Court has been unable to develop a “magical formula” to define the scope and limits of presidential authority.


One area of special difficulty is the question of presidential authority to respond to national security threats: what powers do presidents have to respond to emergencies like war, rebellion, or the threat of terrorist attack?


Article II makes no express provision for such emergency presidential power—in fact, what emergency power the Constitution does provide seems to be assigned to Congress by Article I. Presidents may and often do cite congressional authority as a basis for responding to threats to national security. When congressional authority is lacking, however, presidents often claim the right to take unilateral action. During crises,  “presidents generally have not hesitated to do whatever, in their view, needed to be done.” Faced with a document that does not provide clear instructions and faced with crises that demand or seem to demand immediate action, presidents have found ways to justify actions not expressly authorized by the Constitution or statute.


The central problem this book addresses is this: given that the Constitution does not expressly provide for emergency presidential power in the absence of congressional authorization but presidents, in practice, do independently exercise such power, how do we define its scope and limits?


In answering this question, I consider actions taken by each branch of the federal government. Presidents often do whatever they believe is necessary, but Congress and the courts do not always agree with them. All three branches of the federal government can and do play a role in defining emergency power. I will frequently use excerpts from Supreme Court opinions as guideposts for assessing the nature of emergency power—not because the Supreme Court necessarily has the last word on the matter but because the court has, since Marbury v. Madison, identified its duty as “say[ing] what the law is.”6 Court opinions highlight some of the central issues involved in assessing emergency presidential power, and they tell us what the justices think about these issues—including when the court thinks presidents have acted appropriately and when presidents have exceeded their authority. That does not mean the court always provides the right answers or even asks the right questions, but these opinions offer a useful window into the ongoing debate and discussion.


As noted and as is discussed in detail throughout this book, presidents have historically exercised power beyond what is expressly assigned to the executive branch by the text of the Constitution—often to the satisfaction of Congress, the courts, and the people. That does not mean, however, that all justifications for such actions are equally valid. For instance, presidents, members of Congress, judges, and scholars have recognized implied emergency presidential power that is linked to express powers and limited by contrary provisions of the Constitution.


On the other hand, arguments for inherent executive power, unmoored from and unlimited by the Constitution, are far more controversial. This book aims to consider the strengths and weaknesses of different justifications offered for presidential power during war or other national security crises. I refer to this as emergency presidential power because presidents often assert authority to take unilateral action when necessary to protect national security, especially when there is no time for deliberation and/or, in their view, Congress is not equipped to respond.


Most observers agree that the president has at least some unilateral ability to take action necessary to respond to crisis, even though the Constitution is silent on the matter. However, there is disagreement as to the scope of such power. Advocates for broad presidential power argue that the president has “plenary” or absolute power when it comes to defending the nation—that decisions in this context are for the president alone to make.


Others conclude that presidents can initially act independently when they  believe it is necessary to defend the nation; however, their actions must be retroactively approved by Congress and are subject to review by the courts.


Some arguments, of course, are more persuasive than others, and one’s conclusion about which argument is best may depend on constitutional text, court precedent, congressional action, and past presidential practice, as well as context—the specific reason why presidential authority is claimed in different cases. This book presents and explains the various arguments offered for specific presidential actions while offering different ways to consider the questions at stake but ultimately leaves it to you to decide which arguments are best and how emergency presidential power should be defined.


One may reasonably ask if, in the end, presidents do whatever they believe is necessary, why it matters how they justify their actions. First, presidents may act unilaterally, but, unless they achieve permanent dictatorial power, ultimately they must persuade others—Congress, the courts, the press, the people—that their actions are justified. As we will see, presidents have sometimes been able to do so, but not always. The justifications presidents offer for their actions are also important because they may be cited as precedent in the future. Lincoln’s decision to order a naval blockade of the Confederacy is cited as support for broad presidential authority with regard to deployment of the military in the context of the war on terror. Franklin D. Roosevelt’s decision to try captured Nazi saboteurs before a military tribunal is improperly cited as precedent for the decision to do the same with suspected terrorists.


The challenge for the Framers of the Constitution and for Americans today is to balance competing considerations. After the failure of the Articles of Confederation, which did not provide for an executive, the Framers realized it was necessary to create the presidency. The new president would have to have enough power to carry out the responsibilities assigned to the office and to resist encroachment from the other branches of the federal government, but there would also have to be limits on presidential power.


The president would not be a king, as Alexander Hamilton explained in the Federalist Papers.10 Unlike the eighteenth-century British monarch, the American president would share war power and power over foreign affairs with Congress, as part of the system of checks and balances the Framers developed. In the twenty-first century, this balancing continues. As Supreme Court Justice David Souter put it, “the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty.” Defining the scope and limits of emergency presidential power requires Americans to balance liberty and security, to make sure the president has enough authority to deal with threats to national security without taking on so much power that the system of checks and balances fails and liberty suffers.


Some of the discussion so far may seem fairly abstract, but the reward of unraveling the mysteries of emergency presidential power is that we can begin to arrive at answers—or at least possible answers—to specific questions we face today. Can the president decide to hold suspected terrorists indefinitely without charges? If suspected terrorists are prosecuted, can presidents order their trial before military tribunals instead of civilian courts? Was the Bush administration justified in authorizing waterboarding? If the president decides that the best way to prevent future terrorist attacks is by secretly listening to millions of telephone conversations and reading millions of e-mails, can he (or, at some point, she) order these actions?


Was President Obama justified in authorizing the killing, without trial or hearing, of a U.S. citizen who was a suspected terrorist?


This book addresses each of these questions. Since the question of emergency presidential power begins with the Constitution itself, we start by considering how the Framers understood that power, to the extent that such inquiry produces useful guidance. We then examine how presidents have actually exercised and justified emergency power and what role Congress and the Supreme Court have played in defining such power.


As we will see, emergency presidential power is not a new idea. However,the way in which it is used in the twenty-first century, especially in the context of the war on terror, presents new challenges. If, in the past, one way to limit presidential power was by publicly debating the justifications presidents gave for using emergency power, what happens when power is exercised in secret, with justifications initially provided only in classified memoranda? If one way to limit emergency power is to require that it be temporary, that it be used only for as long as a particular crisis demands, what happens when crisis is open ended, when Americans find themselves in a war against terrorism that has no clear end point?


Defining the scope and limits of emergency presidential power becomes especially important, though also more difficult. Although we begin by considering how power has been defined and used historically, the ultimate goal is to develop a framework for emergency presidential power that meets the challenges of our time.


Chris Edelson is an assistant professor of government in American University’s School of Public Affairs, where he teaches classes on the U.S. Constitution and presidential power. His latest book is “Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror,” from the University of Wisconsin Press.


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