Executive Power in a Time of War – National Constitution Center

Chris Edelson of American University and Lou Fisher of the Constitution Project join National Constitution Center CEO Jeffrey Rosen to examine the constitutional issues about the President’s power to take military action without a formal Congressional war declaration.

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Video from Professor Edelson Appearance on C-SPAN

Emergency Presidential Powers

American University Chris Edelson talks about his book his new book, Emergency Presidential Power. In the book he examines how U.S. presidents have tested and pushed the limits of their emergency powers.

View it online on C-SPAN’s website.


Review from Kirkus Praises New Emergency Presidential Power Book

Now out in print and available shortly in local bookstores and online at AmazonKirkus adds its praise for Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror. From the review:

Unable to “find a suitable book to use for a new class on emergency presidential power and the war on terror,” Edelson  wrote this one as a primer. The currently debated issues informing the author’s arguments include whether the president can order the deaths of American citizens on his own authority and whether doctrines of state secrecy can be employed to block legal suits completely rather than justify merely withholding evidence, warrantless wiretapping and indefinite detention. Though the evolution has varied, Edelson traces the roots of each issue to the doctrine of executive power espoused by Dick Cheney during the George W. Bush administration, which had its inception under the administration of Richard Nixon after his excesses were reined in. The author provides two valuable contributions, which both preface recent developments and provide context from original historical sources. The scope of presidential power has been a subject of contention throughout the history of the country, and Edelson provides documentation from the Constitutional Convention, the Federalist Papers, and the administrations of George Washington and John Adams. The author examines Lincoln’s suspension of habeas corpus at the beginning of the Civil War as well as subsequent cases on the power of military tribunals. The author also looks at cases from the Spanish-American War, the adoption of the Espionage and Sedition acts in 1917, Franklin Roosevelt’s treatment of German saboteurs, and the internment of Japanese-Americans during and after World War II. Edelson provides sources that document both sides of these cases, relates them to the founding documents and discussions, and lays down a foundation from which the current debate about the powers of the presidency can be more clearly understood.

This collection of documents and arguments makes a timely companion to current, ongoing political discussions.


Forthcoming Book Featured on American University Website

From the American University website:

The framers of the U.S. Constitution gave Congress the job of declaring war, but also gave the president the power to take emergency action independent of Congress if the country was suddenly attacked.

While intended to provide the Commander in Chief a way to swiftly respond to security threats, a new book by Chris Edelson, assistant professor of government in American University’s School of Public Affairs, shows through historic records that U.S. presidents have tested, pushed, and increasingly overstepped the limits of their emergency powers, particularly in the post-9/11 era.

Edelson had the idea for the book, published this month by the University of Wisconsin Press, when he created his new class “The Constitution, National Security and the War on Terror,” and discovered no textbook existed on the topic. The resulting work, Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, draws from excerpts of the Constitution, Supreme Court opinions, Department of Justice memos, and other primary documents.

Edelson’s research has been an important contribution to the national dialogue on presidential power, with interviews and opinion pieces recently published in the Los Angeles Times and other notable news media outlets.

An Interest Sparked 

Edelson says the September 11, 2001, terrorist attacks sparked his interest in wartime use of presidential power.

“Living in New York City, I was personally affected by what happened that day, and concerned about how the government would respond,” says Edelson, who practiced law in New York City and Washington, D.C., and served as state legislative director for the Human Rights Campaign. “Like many people, I was worried about the safety of our country.”

That concern eventually turned to skepticism, as Edelson saw the government invoke national security in questionable ways: waterboarding of terrorist suspects, torture at Guantánamo Bay, and the National Security Administration’s (NSA) mass phone and electronic surveillance. More recently, Edelson says President Obama’s military strikes against Libya and threats of force in Syria creep outside the Commander in Chief’s duties to protect the country.

Lincoln and Truman Did It

But Edelson says there is nothing new about pushing the limits of executive power. Abraham Lincoln, for example, suspended habeas corpus during the Civil War, but ultimately secured Congressional authorization to do so.

President Harry S. Truman ordered the Secretary of Commerce to seize and operate the country’s steel mills to produce weapons during the Korean War—a move the Supreme Court declared unconstitutional.

War on Terror Changed Everything

Congress in the post-9/11 era isn’t pushing back on executive power as much as it should, says Edelson, and presidents aren’t necessarily seeking approval from Congress when they decide to act. The War on Terror further complicates this as it has no clear end and no clear target, making it harder to define the parameters of the president’s emergency powers.

“After 9/11, Americans became afraid and have looked to the president to defend the nation,” Edelson says. “In this regard, a lot of people think it is actually dangerous to set limits on the president’s power.”

In his next book, Grand Illusion: Presidential Power and the Rule of Law under President Obama, Edelson will probe President Obama’s use of power.


New Book Coming Winter 2013 – Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror

Foreword by Louis Fisher. The University of Wisconsin Press.  Available for pre-order now.

Can a U.S. president decide to hold suspected terrorists indefinitely without charges or secretly monitor telephone conversations and e-mails without a warrant in the interest of national security? Was the George W. Bush administration justified in authorizing waterboarding? Was President Obama justified in ordering the killing, without trial or hearing, of a U.S. citizen suspected of terrorist activity? Defining the scope and limits of emergency presidential power might seem easy—just turn to Article II of the Constitution. But as Chris Edelson shows, the reality is complicated. In times of crisis, presidents have frequently staked out claims to broad national security power. Ultimately it is up to the Congress, the courts, and the people to decide whether presidents are acting appropriately or have gone too far.

Drawing on excerpts from the U.S. Constitution, Supreme Court opinions, Department of Justice memos, and other primary documents, Edelson weighs the various arguments that presidents have used to justify the expansive use of executive power in times of crisis. Emergency Presidential Power uses the historical record to evaluate and analyze presidential actions before and after the terrorist attacks of September 11, 2001. The choices of the twenty-first century, Edelson concludes, have pushed the boundaries of emergency presidential power in ways that may provide dangerous precedents for current and future commanders-in-chief.

Available for pre-order now.