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June 4, 2010

Inherent Executive Authority and National Security

Professor John Yoo, one of the architects of the Bush administration’s terrorism policies, recently wrote in the New York Times that, “[i]n foreign affairs …the chief executive should enjoy flexible powers to grapple with challenges abroad for which Congress is ill suited.” He made this statement in the context of a critical evaluation of Elena Kagan’s position on executive power, suggesting that, on Kagan’s view, Presidents “do not have the power to detain or interrogate enemy terrorists without criminal trial, monitor their communications or fire missiles at their leaders.”

Obviously, the President has the power to undertake each of these actions—but not because, as Yoo assumes, the President has the inherent constitutional authority to do so.

Let’s take a step back to January 2009, the first month of the Obama administration. Early on, the administration sought to distinguish itself from its predecessor in respect to the war on terror by publicly disclaiming reliance upon notions of inherent authority to validate executive decision-making in respect to the war on terror. Instead, the Obama administration has relied upon Congress’s September 18, 2001, authorization to use military force against those responsible for the September 11 attacks. While the Bush administration relied upon that Congressional authorization, it also claimed inherent authority under the Constitution to launch the war in Afghanistan, detain enemy suspected terrorists, and even establish a domestic electronic surveillance program.

Of course, the Obama administration’s position does not mean it has disclaimed any future reliance upon the President’s inherent constitutional authority. It means only that, for the moment, the administration believes that it does not need to rely upon such constitutional authority for any of the anti-terrorism actions it is pursuing (many of which are identical to the actions of the Bush administration).

The decision to rely exclusively upon Congressional authority was a wise one. First, the validity of Presidential action is least questionable when authorized by Congress; as Justice Robert Jackson wrote in Youngstown Sheet & Tube v. Sawyer, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”

Second, it is far from clear that the Constitution actually supplies the President the expansive inherent authority claimed by the Bush administration, even in matters of national security. As David Barron and Martin Lederman concluded in their magisterial study of Presidential authority, published in the Harvard Law Review, the President as commander-in-chief wields not a vast executive power over national security and foreign affairs, but rather a “prerogative of superintendence”—that is, a presumption of exclusive control over “the vast reservoirs of military discretion that exist in every armed conflict.”

This is nothing more—or less—than the authority of the President to make tactical and strategic decisions in the midst of combat operations or their equivalent. And the President cannot exercise this power absent a precipitating action—like a Congressional declaration of war, or in modern times, the kind of authorization for armed conflict issued on September 18, 2001. In other words, other than the power of superintendence, what power the President enjoys in the realm of national security and foreign affairs does not become his unless and until it is triggered by Congress. This realm simply is not one in which the President enjoys plenary authority, except in extraordinary circumstances. This understanding makes sense in light of other textual limitations on executive authority—indeed, given that the President cannot appoint ambassadors without the consent of the Senate, it would be odd if he could unilaterally control the nation’s security efforts without Congressional involvement or approval.

Further, this understanding of the relationship between Congress and the President in respect to national security and foreign affairs is consonant with the scheme of separation of powers established by the Constitution. In no area of law- or policy-making does the Constitution favor one branch exercising unchecked authority—though it does suggest a preference for representative democratic decision-making. And this makes sense if the framers were concerned that the federal government be kept accountable for its actions.

Nor does this understanding of the relationship between Congress and the President undermine the ability of the federal government to keep the nation safe, to act appropriately and expeditiously in respect to the many serious threats we face. It simply means that, to the extent the President has any inherent authority in matters of national security and foreign affairs, that authority has limits. Absent an attack on the United States or similar exigency, the President must turn to Congress and convince its members that the circumstances warrant a grant of authority.

In its September 18 authorization, Congress gave the President substantial authority to conduct the war on terror. If the President needs still more expansive authority to fight this war, he can ask for it. The fact that he has to ask for this authority serves to prevent the aggregation of untoward power in one branch of government—power that inevitably will be exercised within our borders as well as without, given the nature of the terrorist threat. This check on tyranny has a value that transcends the war on terror, and its lasting importance should cause us to hesitate before uncritically accepting arguments about inherent executive authority, like the one proposed by Professor Yoo.

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