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.
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.
Check out this latest blog on Huffington Post. An excerpt: “Republicans are establishing an identity as the anti-government party, as one business leader recently put it. This calls to mind Ronald Reagan’s famous declaration that “government is not the solution to our problem; government is the problem.” President Reagan was talking specifically about the economy, but his assertion has been applied more and more broadly by his political heirs. The anti-government crowd has a point: too much government can be a problem and it can be dangerous. There can be waste, mismanagement, even oppressiveness in government. But they are missing another point. While it can be dangerous for government to be too large or have too much power, it can also be dangerous when government does not have enough power. The Framers of the Constitution understood this problem all too well. The Articles of Confederation failed because it did not give the federal government enough power to deal with national problems. American revolutionaries, having taken up arms against an overbearing central government, worried about giving government too much power. But they overlooked the danger of going too far and creating a federal government that was dangerously weak. As a consequence, the Constitution was designed to balance two competing concerns: limiting the power of government while also making sure the federal government had enough power to deal with national problems. Today’s anti-government Republicans are ignoring the second part of the equation. It’s time to remind them that there is a reason why we have a federal government.”
Check out this latest post by Prof. Edelson on the National Constitution Center’s blog re: Abraham Lincoln’s message to Congress in 1861 about accepting election outcomes is still relevant today.
You can pre-order your copy now of Chris Edelson’s upcoming book – Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror – due out in Nov 2013. With Forward by Louis Fisher. Available for pre-order now on Amazon.
From the book jacket…
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.
Less than two weeks ago, the Obama administration appeared determined to take military action against Syria. A familiar pattern seemed to be playing out. Since World War II, presidents have claimed unilateral power to use military force without authorization from Congress. Obama had already followed this precedent himself when he ordered military action in Libya in 2011 without seeking approval from Congress.
Despite the fact that unilateral presidential military action can only be justified under the Constitution when the president is responding to an attack or imminent attack against the United States, presidential practice has stubbornly asserted itself as precedent — in part because Congress has consistently failed to check presidential authority.
This time, surprisingly, it was different. In the speech Obama gave Tuesday, he acknowledged that, given the fact that the United States faced and faces no imminent threat from Syria, the better course was for him to go to Congress. Congress deserves credit for asserting itself — more than 100 legislators signed on to letters insisting that the president not act alone, creating mounting pressure on Obama to rethink his approach. The president also deserves credit for recognizing that going to Congress was the right thing to do.
The speech showed why Obama was right to go to Congress — as he emphasized, diplomatic efforts have begun to show promise. When he announced his decision to seek legislative approval, critics argued that he was undermining the power of the presidency. John Yoo, a Department of Justice lawyer in the George W. Bush administration who has championed broad, essentially unchecked, presidential power, insisted that only the president could take the quick, decisive military action required. As Obama observed Tuesday, though, speedy action was not what was needed. Sometimes, it is better not to act. The benefit, in this case, was that diplomacy has been given a chance to work. If nothing else, the chain of events over the last 10 days should put to rest the argument that presidents are best positioned to make decisions about the use of military force because they have the ability to act quickly.
As Congress has begun to consider a use-of-force resolution authorizing military action in Syria, some have asked what Obama would do if lawmakers said no. He has said — and he said again Tuesday night — that he believes he has the authority to act alone (though he is wrong about this, in my view). However, Obama said that he has asked Congress to postpone voting on the pending legislation. This is a wise move that ought to divert attention from the question of what he might do if Congress votes no. As the president suggested, putting off voting in Congress gives more time for diplomatic efforts to play out. It also provides additional evidence that those like Yoo who insist on the value of speedy presidential action in the context of war are wrong. Outside of the emergency context, unilateral presidential military action is neither wise nor constitutional. Sometimes, immediate military action isn’t the right choice.
Chris Edelson is an assistant professor of government in American University’s School of Public Affairs, where he teaches classes on the Constitution and presidential power. He is the author of the forthcoming book, “Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror.”
Prof. Chris Edelson appeared on Sinclair television affiliates last night again. Check out the video for some compelling sound bites like “even the war powers resolution which says the president can use military force if the US is attacked or directly threatened – does not apply in this case, even if it’s been used in the past.”
Still, the sight of the secretary of State addressing senators about the Syrian crisis and taking questions Tuesday was, well, a sight for sore eyes. It’s about time that Congress took seriously the power invested in it by the Constitution to take this nation to war.
The president needs congressional authorization for a military attack that is not related to an actual or imminent threat to the United States. What is happening in Syria is an ongoing atrocity. Tens of thousands of people have been killed — some, it appears, by the Bashar Assad government’s use of chemical weapons. This is a moral outrage. But it is not a direct threat to the United States, and the Obama administration does not suggest otherwise.
And that sums it up pretty neatly. Americans don’t care for Assad; they certainly don’t accept the use of chemical weapons against innocent civilians. But they also don’t see how this poses a direct threat to our security. And after Iraq, and Afghanistan (and let’s not forget Somalia, and the Balkans, and heck, even Lebanon in the 1980s), well, let’s just say that being the world’s policeman is getting old.
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