Prerogative Powers - Essay Example

Running Head: PREROGATIVE POWERS Prerogative Powers of Prerogative Powers Can the President use "unconstitutional" authority in order to save the Constitution and constitutional democracy The answer should be understandable, but scholars and jurists have made the issue (and answer) more complex than it should be. Our saga about constitutional government refers to Ex parte Milligan, (1) Duncan v. Kahanamoku, (2) and Youngstown Sheet & Tube v. Sawyer, (3) and the ideal that the Constitution is likewise valid in peace as well as war. The reality, in contrast, shows decisively that war and peace are not the same thing, cannot coexist in the same place at the same time, and legitimate provisions pertinent in time of peace may not be evenly applicable in time of war. In other words, the Constitution does not operate usually in abnormal times, and both the existence of a "wartime" constitution and the potential for "constitutional dictatorship" follow from that relevant fact. In spite of sporadic rhetoric, in contrast to statutes and decisions, very little has really changed in two centuries from the way presidents have invariably acted during a dire emergency. In answering Lincoln's question, raised in 1861, constitutional democracy can be very strong to keep up its own existence without undermining the liberties of the people it has been formed to protect. But the nation's political leadership must be so liable and at the same time be willing to stick to constitutional constraints. Saying that, let me now spell out the content and issues that follow for discussion: 1) the president must possess emergency powers capable of operating in abnormal times; 2) prerogative powers innately belong to the president in his capacity as political head of the nation and definitive guardian of the Constitution; 3) the Bush administration is making many of the same mistakes in its war on terror as the Johnson and Nixon administrations made with regard to the earlier Vietnam misadventure; 4) Congress, while salvaging its capacity to work out real legislative supervision over the presidential use of war powers in 1973-76, finds itself reluctant or unable to say no to the President since September 11, 2001; 5) legislation enacted since the terrorist attack in New York and anywhere else has engorged not only the President's ability to take the nation into war but has revolutionized the whole concept of separation of powers/checks and balances; and 6) emergency/prerogative power must be used in a terrible emergency only, and when the initial emergency situation comes to an end so should the unregulated use of outstanding presidential power. In Federalist No. 23, Alexander Hamilton, writing about the idea of crisis government and the need for indeterminate power in the national government, announced that the war powers "should exist without restraint, because it is impossible to anticipate or define the degree and variety of national emergencies, and the correspondent extent and variety of the means which may be indispensable to please them." (4) The period of civil war permanently transformed our understanding of the war powers. Lincoln's imaginative combining of the commander-in-chief, take care, and executive power clauses into a notion of presidential war power independent of legislative authority--where ends justified means--laid to rest the earlier, limited meaning of commander-in-chief. Lincoln's assertion of this independent, virtually unlimited war power, held together by Locke's "prerogative" theory, (5) was legitimized and sanctioned by the Supreme Court within two years. (6) This transformation set the stage for the modern presidential office, applied the notion of constitutional dictatorship in the United States, and began the development of the "wartime" constitution. Earlier in the development of the Republic, generally that period from Abraham Lincoln to Franklin Roosevelt, presidents would act illegally and then depend upon Congress to ratify their actions after the fact. Beginning with Harry Truman and Korea, and continuing through the Indochina war (embracing Vietnam, Laos, Thailand, and Cambodia), the claim was made that the president possessed the power to initiate war without the consent of Congress. (7) In facing two such potentially dangerous choices, the lesser of the two evils (at best) would always be for the president to act illegally and then to look to Congress for ratification of his actions. Should Congress refuse to ratify, then the President's actions stand before the public starkly for what they are--illegal actions forbidden by the Constitution. Such a course of action would be far more preferable than allowing the president to claim an emergency power to act contrary to the law for the good of the nation, or, even worse, to claim the exclusive right to determine what is good for the nation. One could easily argue that a traceable developmental history exists in the United States regarding the use of military and paramilitary force. (8) Each step in the development contains several interconnected arguments which not only attempt to justify the presidential actions in question, but also reach a level of abstraction so extreme that even extra-constitutional actions are somehow clothed in the respectability of constitutional language. The first step posits that the power exercised by the president was actually delegated by Congress in the form of open-ended legislation--i.e., the posse comitatus legislation enacted during the 1792 session of the first Congress, (9) or the Habeas Corpus Act of 1863 (enacted after Lincoln had already suspended the Great Writ). (10) In effect, the presidential power specifically granted in the Constitution, such as the power contained in the take care and commander-in-chief clauses, justifies the presidential actions taken. Ultimately, the specific power granted the president by the Constitution is independent of any congressional authority and requires no prior congressional authorization. Moreover, the president may resort to the executive power clause in Article II, as a sort of presidential equivalent of Article I, Section 8, Clause 18, thus allowing him to take any and all actions necessary and proper to achieve the national interest. The second step, on the other hand, suggests an alternative argument, that the war powers of the United States exist in aggregate form and belong to the institution of government that most appropriately can use them during the required emergency. (11) Hamilton first suggested this argument in Federalist No. 23. Lincoln, of course, was the first to make use of this alternative argument when, by combining the executive power, duly to take care, and commander-in-chief clauses, he created a resulting power of dictatorial dimensions--i.e., during a dire emergency all powers of government necessary to meet that emergency devolve upon the president in his capacity as chief executive and commander-in-chief. (12) Furthermore, as in step one, no prior congressional authorization was required before the president exercised this power. (13) This alternative argument, based on the notion of the war powers existing in aggregate form, switched the emphasis from means to ends, which in turn will usually justify the means. (14) The third step in this developmental argument allows presidential power to break free of the limitations imposed by the constitutional language itself. (15) This notion was first articulated by the Supreme Court in Penhallow v. Doane, (16) where the power to conduct war was treated as a matter of national sovereignty and not dependent upon the division of national powers contained in the Constitution. This notion was later expanded by Justice Sutherland's "sole organ theory" in his United States v. Curtiss-Wright Export Corp. decision. (17) In effect, this line of argument emphasizes the fact that since the president speaks for the United States in international matters, he must be the sovereign of the nation. (18) The last step in this developmental argument is the most dangerous, at least from the perspective of constitutional liberty. What is involved here is the resurrection of the Locke-Blackstone notion of prerogative power applied to presidential actions of an extra-constitutional nature. The effect is to justify the means of unconstitutional behavior in the name of ends labeled as a "higher good." This claim, of course, has taken several forms, "from the absolute prerogative of Stuart kings (based on the law of God), to the Locke-Jefferson theory of emergency powers (based on the hope of popular acceptance), to the Nixon theory of inherent national security powers (rooted in secrecy). In each of these instances, the end is said to justify the means." (19) The end result is the development of a wartime constitution in the United States and the possibility of constitutional dictatorship. Emergency Power/Prerogative When the Framers granted Congress the power to "pronounce" war somewhat than "make" war, (20) they supposed, at the time that they were giving the president the power to keep away unexpected attacks. There was no motive to think whether the president could--while reacting to an attack--declare the survival of a state of war and as a result change the legal rights of citizens and foreigners alike. (21) Nor was there any conversation among the Framers of the likelihood that a president might provoke an attack, or produce an attack, and then be familiar with the existence of a state of war. (22) Not all antagonistic military actions in opposition to the United States are acts of war. The Constitution distinguishes only war, revolt, and attack, (23) and unreservedly recognized defective war by the section governing letters of marque and reprisal. (24) Accordingly, antagonistic military actions may, in the constitutional sense, be dealt in a different way. On the contrary, if the war powers are professed in Hamiltonian terms as monumental, then in times of dire crisis the war powers of the United States must be handed over to the president in his capability as commander-in-chief. By looking at an all-inclusive war power, defenders of presidential prerogative move the emphasis from the Constitution and its allocation of powers, to international law and its lack of concern for constitutional theories regarding the locus of sovereignty. (25) Lincoln (26) was the first president to completely accept this position; so did Franklin Roosevelt and all other prerogative exercising presidents during periods of dire emergency. It is, eventually, the position taken at whatever time the United States has faced such an emergency and needs the leadership and direction of a potential constitutional dictator. The residue of this portion--the actual expansion of presidential war powers and the periodic submission of prerogative theory through the actions of presidents, (27) the delegations and legitimizations of Congress, (28) and the sometimes excessive justifications of the Supreme Court (29)--is reasonably familiar territory to everyone. Therefore, what follows is a generalized explanation and analysis only. The purpose to be served by the use of emergency powers is to end the crisis and restore normal times. As Clinton Rossiter argued: "The government assumes no power and abridges no right unless plainly indispensable to that end; it extends no further in time than the attainment of that end; and it makes no alteration in the political, social, and economic structure of the nation which cannot be eradicated with the restoration of normal times. In short, the aim of [emergency power] is the complete restoration of the status quo ante bellum." (30) Notes (1) 71 U.S (4 Wall.) 2 (1866). (2) 327 U.S 304 (1946). (3) 343 U.S. 579 (1952). (4) Federalist, No. 23, 153 (Hamilton) (Clinton Rossiter ed., New York: Penguin, 1961). (5) Hamilton then continued: "The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defense." Ibid. (6) See John Locke, Two Treatises of Government, ch. XIV, [section] 160 (Peter Laslett, ed., New York: New American Library, 1961). Locke defined prerogative as the "power to act according to discretion for the public good, without the prescription of the law and sometimes even against it." Ibid. (7) The Prize Cases, 67 U.S. (2 B1.) 635 (1863). (8) See Francis D. Wormuth & Edwin D. Firmage, To Chain the Dog of War: The War Powers in History and Law (2nd ed., Urbana, IL: University of Illinois Press, 1989), 135-63. In effect, our armed forces have been used more than two hundred times without declarations of war, and in many of these instances without congressional authorizations as well. (9) See Christopher H. Pyle & Richard M. Pious, The President, Congress, and the Constitution (New York: The Free Press, 1984), 288. (10) See Act of May 2, 1792, 1 Stat. 264. See also Act of Feb. 28, 1795, 1 Stat. 424; Act of Mar. 3, 1807, 2 Stat. 443; Act of July 31, 1861, 12 Stat. 282. In short, presidential power to use military force for enforcing the laws of the United States has undergone enlargement from the first, thanks to both presidential initiative and congressional legislation. (11) See Act of Mar. 3, 1863, 12 Star. 755. President Lincoln regarded the act, authorizing him to suspend the Great Writ, merely as declaratory. (12) See Pyle & Pious, 289. (13) See Horace Binney, The Privilege of the Writ of Habeas Corpus Under the Constitution (2nd ed., Philadelphia: Sherman & Son, 1862) and Martin S. Sheffer, "Presidential Power to Suspend Habeas Corpus," 11 Okla. City U.L.Rev. 1 (1986). (14) Justice Grier's opinion spells out this point: "Without admitting that such an act [the recognition that a state of insurrection existed] was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that on the well know principle of law, 'omnis ratihabitio retrotrahitur et mandato equiparatur,' [the retroactive forgiveness for past actions at the express command of the sovereign power], this ratification has operated to perfectly cure the defect." The Prize Cases, 67 U.S. (2 B1.) 635, 671 (1863). The Court is saying that the President is obligated to take whatever measures he deems necessary when reacting to a crisis; and his actions, in turn, need no prior authorization. (15) See Pyle & Pious, 289. (16) Ibid. (17) U.S. (3 Dall.) 54 (1795). (18) The Supreme Court articulated the "sole organ theory" as follows: "It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations--a power which does not require as a basis for its exercise an act of Congress, but which, ... like every other governmental power must be exercised in subordination to the applicable provisions of the Constitution." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936) (Sutherland, J.). (19) Twentieth-century presidents have particularly invoked this notion--i.e., Theodore Roosevelt, Woodrow Wilson, Franklin D. Roosevelt, Harry Truman, John Kennedy, Richard Nixon, Ronald Reagan, George Bush, and Bill Clinton. In spite of the events of Sept. 11, 2001, it is too early to categorize George W. Bush. (20) Pyle & Pious, 289. (21) Regarding the distinction between "declare" and "make," as well as the debate itself, see Max Farrand, ed., Records of the Federal Convention of 1789 (2nd ed., vol. 2, New Haven, CN: Yale University Press, 1937), 318-19. (22) Pyle & Pious, 321. "When the southern states declared their independence of the United States in April 1861, [President] Lincoln refused to treat them as a nation that other nations might recognize and supply. Nor could he treat them as a mere criminal conspiracy or minor uprising, which would require him to respect their property rights even as he used the military to suppress their violence. So he chose to treat them as nongovernmental belligerents, in the nature of, but not technically, foreign states." Ibid., 322-23. Consequently, the President--during his so-called eleven-week dictatorship period--ignored laws and constitutional provisions by assembling the militia, enlarging the army and navy beyond their authorized strengths, calling for volunteers for three years' service (the logical conclusion to the notion of posse comitatus), spending public money without congressional appropriations, instituting new passport regulations, closing the post office to treasonable correspondence, suspending the privilege of the writ of habeas corpus, arresting people on mere suspicion of disloyalty, and instituting a naval blockade of southern ports. Eighty-one years later, FDR's Executive Order 9066 treated the west coast of the United States as "a theater of military operations," thus depriving the citizens of their civil liberties. (23) By the deployment of troops near the disputed border with Mexico and positioning of reinforced naval traits in the Pacific where they would be able to seize the Mexican province of upper California, President Polk sought to make the Mexicans feel militarily insecure. Secret agents encouraged American settlers in the coveted provinces to revolt, while at the same time diplomats offered to purchase California for as much as $40 million. Polk then ordered General Zachary Taylor and his troops into the disputed territory. Mexico then declared "defensive war" and some American troops were killed in the engagement. The President had already decided to ask for a congressional declaration of war when news of the incident enabled him to claim that Mexico had invaded Texas. Congress then voted to recognize the existence of a state of war and to reinforce Taylor's forces. See Louis Fisher, Presidential War Power (Lawrence, KS: University Press of Kansas, 1995), 30-34. In the same vain, and much more recently, there is Lyndon Johnson's 1964 message to Congress claiming North Vietnamese torpedo attacks on American naval warship in the Gulf of Tonkin. (24) U.S. Const. art. I, [section] 8, cl. 11; art. I, [section] 9, cl. 2. (25) U.S. Const. art. I, [section] 8, cl. 11. The notion of imperfect war was legitimized by the Supreme Court, for example, in Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800); Talbot v. Seeman, 5 U.S. (1 Cr.) 1 (1801); Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804). (26) See, for example, the argument of John Bassett Moore: "in reality the word 'war' comprehends two meanings. It denotes (1) acts of war, and (2) the international conditions of things called a 'state of war.' Acts of war do not always or necessarily develop into the general international condition of things called a state of war, but they are nevertheless war and involve the 'making' of war in the legal sense." John Bassett Moore, Collected Paper of John Bassett Moore (Vol. 5, New Haven, CN: Yale University Press, 1944), 195-96. (27) In a letter to J. G. Conkling on Aug. 26, 1863, Lincoln wrote: "I think the Constitution invests its commander-in-chief with the law of war, in time of war." Roy P. Basler, ed., Collected Works of Abraham Lincoln (Vol. 6, New Brunswick, NJ: Rutgers University Press, 1953), 406. In a letter to S. P. Chase on Sept. 2, 1863, he wrote: "As commander-in-chief ... I have a right to take any measure which may best subdue the enemy, ... including things ... which cannot constitutionally be done by Congress." Ibid., 428. Earlier, on July 4, 1861, he told Congress: "[N]o choice was left to me but to call out the war power of the Government and so to resist force employed for its destruction by force for its preservation ... 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." James D. Richardson, Messages and Papers of the Presidents (Vol. 7, Washington, DC: Government Printing Office, 1897), 3224-25. (28) Defenders of the Lincolnian view of presidential prerogative (who set the stage to defend all future acts of presidential prerogative) essentially argued that in time of war, presidential authority is not subject to any constitutional restrictions. For example, William Whiting (chief solicitor of the War Department) suggested that the "sovereign ... dictatorial military powers, existing only in actual war, ending when war ends, to be used in serf-defense, to be laid down when no longer necessary, are, while they last, as lawful, as constitutional, as sacred, as the administration of justice by judicial courts in time of peace." William Whiting, War Powers Under the Constitution of the United States (43rd ed., Boston: Lee & Shepard, 1871), 52. See also, in the very same vain with essentially the same argument, Clarence A. Berdahl, War Powers of the Executive of the United States (Urhana, IL: University of Illinois Press, 1921). In response to a speech by Charles Sumner, critical of Lincoln's actions, Orville Browning denied "that Congress may decide upon the measures demanded by military necessities and order them to be enforced.... When the Constitution made the President 'Commander in Chief of the Army and Navy of the United States' it clothed him with all the incidental powers necessary to a full, faithful and efficient performance of the duties of that high office; and to decide what are military necessities, and to devise and execute the requisite measures to meet them, is one of these incidents. It is not a legislative, but an executive function, and Congress has nothing to do with it." Cong. Globe, 37th Cong., 2nd Sess., 2919 (June 27, 1862). (29) See notes 9 & 10, supra. In addition to the congressional delegations and legitimizations listed, I offer the following as well: Alien Enemy Act, 1 Stat. 577 (1798); Confiscation Acts, 12 Stat. 319, 589 (1861); Legal Tender Acts, 12 Stat. 345, 370 (1862); Indemnity Acts, 14 Star. 46, 432 (1866); Selective Service Act, 40 Star. 76 (1917); Emergency Shipping Fond Act, 40 Stat. 182 (1917); Lever Act, 40 Stat. 276 (1917); Trading with the Enemy Act, 40 Star. 411 (1917); Railway Control Act, 40 Star. 451 (1918); Overman Act, 40 Stat. 556 (1918); Control of Communications Act, 40 Stat. 904 (1918); War-Time Prohibition Act, 40 Stat. 1046 (1918); Selective Service Act, 54 Stat. 885 (1940); Lend Lease Act, 55 Star. 31 (1941); War Powers Acts, 55 Stat. 838 (1941), 56 Stat. 176 (1942); Emergency Price Constrol Act, 56 Star. 23 (1942); War Labor Disputes Act, 57 Stat. 163 (1943). Comparable delegations can be found during the Korean and Vietnam periods as well. In essence, Congress has delegated its war powers, and much of its legislative powers as well, to the President. (30) See, for example, Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827); Durand v. Hollins, 8 F. Cas. 111 (C.C.D.Pa. 1860) (No. 4186); The Prize Cases, 67 U.S. (2 B1.) 635 (1863); In re Neagle, 135 U.S. 1 (1890); In re Debs, 158 U.S. 564 (1895); United States v. Midwest Oil, 236 U.S. 459 (1915); United States v. Curtiss-Wright, 299 U.S. 304 (1936); United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942); Ex parte Quirin, 317 U.S. 1 (1942); Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214 (1944); Woods v. Miller, 333 U.S. 138 (1948); Ludecke v. Watkins, 335 U.S. 160 (1948); Dames & Moore v. Regan, 453 U.S. 654 (1981); Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982); Beck v. Laird, 429 F.2d 302 (2d Cir. 1970); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973); Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990). The judicial attitude, more often than not, approximates the courts being an arm of the executive whenever an emergency erupts. Read More