Presidential Power in National Security: A Guide to the President-Elect

Respect for the Constitution and joint action with Congress provide the strongest possible signal to both enemies and allies. By following those principles, other countries understand that U.S. policy has a broad base of support and is not the result of temporary, unilateral presidential actions that divide the country and are likely to be reversed. National security is strengthened when presidents act in concert with other branches and remain faithful to constitutional principles. In periods of emergency and threats to national security (perceived or real), the rule of law has often taken a backseat to presidential initiatives and abuses. Although this pattern is a conspicuous part of American history, it is not necessary to repeat the same mistakes every time. Faced with genuine emergencies, there are legitimate methods of executive action that are consistent with constitutional values. There are good precedents from the past and a number of bad ones. In response to the 9/11 terrorist attacks, the United States largely decided to adopt the bad ones. The responsibility for this damage to the Constitution lies primarily with the executive branch, but illegal and unconstitutional actions cannot occur and persist without an acquiescent Congress and a compliant judiciary. The Constitution's design, relying on checks and balances and the system of separation of powers, was repeatedly ignored after 9/11. There are several reasons for these constitutional violations. Understanding them is an essential first step in returning to, and safeguarding, the rule of law and constitutional government. Making Emergency Actions Legitimate The Constitution can be protected in times of crisis. If an emergency occurs and there is no opportunity for executive officers to seek legislative authority, the executive may take action--sometimes in the absence of law and sometimes against it--for the public good. This is called the "Lockean prerogative." John Locke advised that in the event of executive abuse, the primary remedy was an "appeal to Heaven." A more secular and constitutional safeguard emerged under the American system. Unilateral presidential measures at a time of extraordinary crisis have to be followed promptly by congressional action--by the entire Congress and not some subgroup within it. (1) To preserve the constitutional order, the executive prerogative is subject to two conditions. The president must (1) acknowledge that the emergency actions are not legal or constitutional and (2) for that very reason come to the legislative branch and explain the actions taken, the reasons for the actions, and ask the legislative branch to pass a bill making the illegal actions legal. Those steps were followed by President Abraham Lincoln after the Civil War began. He took actions we are all familiar with, including withdrawing funds from the treasury without an appropriation, calling up the troops, placing a blockade on the South, and suspending the writ of habeas corpus. In ordering those actions, Lincoln never claimed to be acting legally or constitutionally, and he never argued that Article II somehow allowed him to do what he did. Instead, Lincoln admitted to exceeding the constitutional boundaries of his office and therefore needed the sanction of Congress. He told Congress that his actions, "whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them." He explained that he used not only his Article II powers but also the Article I powers of Congress, concluding that his actions were not "beyond the constitutional competency of Congress." He recognized that the superior lawmaking body was Congress, not the president. When an executive acts in this manner, he invites two possible consequences: either support from the legislative branch or impeachment and removal from office. …