Executive Power: How Much Power Should Our President Have?

Should he be able to revoke civil liberties when he so chooses, declare "war," suspend the writ of habeas corpus (the right to a civil trial), detain individuals because they are of a certain ethnicity, enforce our laws unevenly, or even make laws; therefore usurping the power of the legislature? In other words, should he have the power to violate the constitution in times of emergencies or even in peacetime? Of course not. That's what the Founder's "Separation of Powers'' was all about, to prevent the chief executive from acting like a king. Surely the safeguards the Founders purposely put into place would be sufficient to protect us against an imperial or almost tyrannical presidency? That was not what the Revolution was all about; to throw off the tyranny the King of England held on America.

Unfortunately, what has happened is that the presidency has gradually gained power through the use of presidential directives, including proclamations and executive orders. Although many presidential directives do not violate the Constitution, such as declaring a national holiday, there have been many that have infringed upon the powers of another branch, such as the legislature, and violated the Constitution. In the most severe violations, as a consequence of a presidential directive, civil liberties of certain groups of people have been infringed upon. Where did these presidential powers originate? These directives may include executive orders, proclamations, and other such documents, and have been issued by presidents since the George Washington Administration. Legitimate uses of these presidential directives include constitutionally authorized subjects such as the implementation of treaties, and the direction of subordinate executive officials. Both of those are enumerated to the President in the Constitution, and do not encroach upon the powers of either the legislature or judicial branches. Nevertheless, presidential directives have not been defined in either constitutional or statutory provisions. Rather, it seemingly has become an "implied power'' of the President since our first president set the precedence.

The first case in which the presidential proclamation was seriously questioned was on 22 April 1793, when Washington declared U.S. neutrality in a war between France and several European nations. In it, Washington failed to cite constitutional or statutory authority. Instead, he cited the "law of nations'' and defined "the status of American citizens who violate the precepts of such law." He sought to control the actions of private citizens, and it was viewed as an abuse of executive authority at the time. Unfortunately, Congress was persuaded by Washington to enact the limitations on private behavior, which punished individuals who aided or abetted hostilities among the countries involved. This set a dangerous precedence for future presidential actions lacking constitutional or statutory authority subsequently approved by Congress.

Although presidential directives remained rare until the Civil War began in 1861, Lincoln ruled by proclamation, and frequently violated the Constitution. Fortunately, after the Lincoln era, presidential directives returned to prior practice until Theodore Roosevelt and the Progressive Era. Ever since then, the issuance of executive orders has exploded. In general, however, times of war have produced the most executive orders or proclamations issued by presidents.

What were the reasons for the sudden surge in the use of executive power? The Progressive Era fostered the modem view "that government should be in the business of solving a vast array of social problems." Teddy Roosevelt furthered this attitude through his "bully pulpit' by doing anything necessary to provide for what he saw as the "needs of the country," stopping just short of violating the Constitution and the law. He issued 1,006 executive orders, almost ten times the number issued by all his predecessors combined.

President Woodrow Wilson, during the First World War, went even further to expand presidential power, becoming the first to declare a national emergency, exercise emergency authority, and create federal agencies with presidential directives (i.e. Food Administration, Grain Administration, War Trade Board, and Committee on Public Information). In fact, Wilson declared a national emergency two months before Congress declared war on 5 February 1917. However, most of Wilson's emergency powers did not survive his administration. Congress passed a joint resolution on 3 March 1921, repealing most of the wartime measures delegated to the President.

Nevertheless, presidential power would continue to grow, reaching a new high point during the Great Depression and the Second World War. On 19 February 1942, FDR issued executive order 9066, (one of 3,723 he issued during his twelve years in office, more than double that of the next closest, Woodrow Wilson) which more than 112,000 U.S. citizens and residents of Japanese descent were removed from their homes and forced into relocation camps. The authority cited by FDR was as Commander In Chief of the Armed Forces, and his actions were subsequently ratified by Congress. The Bill of Rights, Amendment V to the Constitution, clearly states that no person shall be "deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.'' FDR had violated the Constitution, and Congress had supported him by ratifying EXO 9066 on 21 March 1942, as did the Supreme Court in their rulings in two leading cases of 1943 and 1944. In addition, FDR also issued a proclamation on 2 July 1942, which established military tribunals to try certain "Nazi saboteurs,'' and therefore denying them access to the civil courts, or the writ of habeas corpus. Once again, the Supreme Court denied them the writ of habeas corpus on the grounds that Congress had in effect approved of and "authorized such trials of offenses against the laws of war before such commissions.

Now the Constitution does allow for Congress to suspend the writ of habeas corpus "when in cases of rebellion or invasion the public safety may require it,'' in Article I, Section 9, Paragraph 2 of the Constitution. However, the President is effectively denied such a privilege, given the fact that this portion is located under the powers of the legislature vested in Congress alone. Unfortunately, past presidents have established such precedents.

President Lincoln suspended the writ of habeas corpus in 1861 in order to allow for arbitrary arrests of civilians and soldiers who were sympathizers of the Confederates. In so doing, a case was brought before the Supreme Court in Baltimore. The defendant was John Merryman, a lieutenant in a group pledged to armed resistance against the government, accused of treason, and who petitioned the court for habeas corpus after he was seized from his bed at 2 9 Chief Justice Roger Taney served the writ AM and confined to Fort McHenry on 26 May 1861. Chief Justice Roger Taney served the writ of habeas corpus to General Cadwalader ordering him to present Merryman to the court to determine the legality of his imprisonment. The general, of course, refused on the grounds that President Lincoln had given permission for him to suspend the writ. Taney ordered a marshal to bring the general to court, but the marshal was not allowed to enter the gate of the fort. The Chief Justice then condemned the suspension of habeas corpus, the authorization of a military officer to suspend it according to his judgment, and the martial law that Lincoln had created, effectively ignoring the Bill of Rights. His strongest argument was that the President had no constitutional right to suspend the writ of habeas corpus, because that power was reserved exclusively to Congress.

Perhaps in response to all this, in 1863 Congress enacted the Habeas Corpus Act prior to the end of the Civil War. The act officially recognized the President's authority to suspend the writ of habeas corpus, contrary to the separation of powers embedded in the Constitution and part of Taney s argument. However, the act was also an attempt to curb that power by requiring a military officer to release an individual who's right to a writ had been suspended by the President if a judge so ordered them to do so. Unfortunately, as was common during wartime, and since it is the President's job to enforce the law, a law that Lincoln did not support in this case, the statute was ignored, and actually was construed by Judge Advocate General Holt as to not apply to prisoners who were to be sentenced by military tribunals.

This prompted the Supreme Court, immediately after the war and Lincoln's assassination, to declare the use of military tribunals illegal for use against those citizens living in locations 14 once again, however, this statute was to be ignored by future absent of a military presence. Once again, however, this statute was to be ignored by future presidents, instead drawing upon the dangerous example set by Lincoln. As previously mentioned, FDR'S executive order establishing military tribunals in 1942 was one such example.

Now, under George W. Bush we are seeing them again, only this time their supposed purpose is to detain and try "|non-citizens'' suspected of terrorism. This military order issued by Bush on 13 Nov. 2001, is yet another example of the continuing growth of presidential power. This particular presidential directive poses the question, whether our laws should apply equally to both citizens and "non-citizens'' alike. Whatever the answer to this question, which l will not get into because it goes beyond the scope of this paper, it is undoubtedly a question to which the answer should be determined by the legislature, and perhaps subsequently the courts, but not the Chief Executive, because his job is to enforce the law, not to make or interpret it. In effect, however, Bush has already determined the answer to this question, and it is yes, we should treat citizens and "non-citizens'' of the United States differently in terms of the law. Therefore, Bush has already gone beyond his constitutional powers and encroached upon those clearly assigned to the legislature. Even if the legislature were to make a law legalizing Bush's actions, it would still be a violation of Article I, Section 9, Paragraph 3 of the Constitution, which states no "ex post facto law shall be passed.'' That leaves it up to the courts. If such a case regarding this situation is brought to the Supreme Court, they should find that any person denied the right to a civil trial (or the writ of habeas corpus) is a violation of the Constitution and the Bill of Rights, and therefore make President Bush's military order of November 13 invalid.

In over two centuries, however, our institutions have done little to stop encroachment on the part of the President. For instance, Congress has enacted statutes that either modified or revoked a presidential directive only 239 times out of tens-of-thousands of directives, and the courts have struck down just two directives involving presidential law making. It seems both institutions are reluctant to recognize encroachments. So, what can be done in general to curb presidential power and keep him from breeching the separation of powers or infringe upon civil liberties?

There is proposed legislation to help do just that. The one that appears to have the most promise is HR 2655, introduced by Representatives Paul and Metcalf, called the "Separation of Powers Restoration Act.'' on July 30, 1999. Its primary goal is to restore the separation of powers between Congress and the President. First, the bill proposes to eliminate all presidential powers derived from all existing declarations, by terminating such declarations. Further, the authority to declare national emergencies would be vested exclusively in Congress, making it impossible for one person to take the nation into a state of emergency on a whim (the U.S. was in a state of emergency declared by FDR from 1933 until 1978, when Congress finally ended it.) It requires all presidential directives to cite specific constitutional or statutory provisions when making a directive, otherwise it is deemed invalid. The bill also establishes a definition, for the first time, of a presidential directive. Also, it grants standing in the courts to members of Congress, state and local officials, and any person whose liberty or property is directly infringed upon by a presidential order. Finally, perhaps most importantly, it repeals the War Powers Resolution, which has been widely attributed to the expansion of presidential power in peacetime, even though it was meant to curb such power.

The act was in response to the Vietnam War when Congress had never declared war, but troops had been sent anyway, which resulted in huge casualties of American soldiers, which was largely seen as a losing and pointless venture. Although it does make the President more accountable to Congress by requiring him to make a report and it gives a time limit of sixty to ninety days after which troops must be recalled unless Congress declares war or extends the deadline, the act could be seen as doing more harm than good. Mainly, the provisions of the War Powers Act of 1973 institutionalized the President's ability to send troops overseas in times of peace, which had not previously existed. Also, if this act had been in place before Vietnam, LBJ, as well as Nixon could still have managed to send troops overseas. However, instead of a repeal, perhaps a revision of the War Powers Act would be preferable, given the fact that it does in some instances help restrain presidential power. The revisions should strive to meet the concerns of Congress and to better control an overzealous president in peacetime, and at the same time retain the President's ability to respond in an emergency while remaining within the boundaries of the power of the executive.

Undoubtedly, the Presidency would look substantially different if HR 2655 were to be passed. Inevitably, questions concerning the President's powers and the U.S. position in international organizations such as NATO, WTO, NAFTA, and the United Nations will arise because of these sweeping and broad changes to presidential power. Therefore, before this bill is passed, the aforementioned factors should be taken into account and the presidential powers adjusted accordingly to accommodate the U.S.'s ability to remain involved internationally.

Also, since Congress drafted this proposal, it obviously would result in a power shift from the President to Congress, and perhaps result in Congress usurping the power of the executive. For the most part, however, the proposal simply restores the separation of powers and does not completely strip the President of his powers. If the executive does believe this proposal, if passed, will effectively prohibit his ability to act in emergencies and that Congress has encroached on his power as Commander In Chief, he may challenge it in the courts on those grounds. If necessary, revisions can be made to the proposal to satisfy both sides.

The main objective of HR 2655, however, should remain intact. The presidency would be more accountable as was intended by the Founders, and at the same time have the necessary powers to act in times of emergencies. Even though with the responsibility of Congress to declare an emergency in this proposal may appear to hinder the U.S. government's ability to respond, 1 believe Congress is very capable of responding to an emergency. You do not have to look any further back for an example than after the attacks of September 1 1, when Congress quickly responded by coming together in a bipartisan effort to provide aid for the victims of the attacks and approve of military action against the terrorists in Afghanistan.

Once an emergency is declared by Congress, and most often the situation will be an obvious one to justify such an action, the President can implement whatever appropriate actions are necessary and within constitutional boundaries. With increased Congressional oversight, the President cannot abuse his powers and further encroach upon the power of Congress or on the rights of individuals without permission. HR 2655 provides this safeguard by giving standing to anyone who is negatively affected by a presidential order. The Founders' constitutional intentions would be restored.

Taking the current situation, if this proposal was law before the attacks, Congress would have acted and approved of all of Bush's tactics with the possible exception of establishing military tribunals, although this would have been allowed under the Constitution if Congress did decide the situation called for it. President Bush would still have been allowed to send troops to Afghanistan under proposal HR 2655, with or without the War Powers Act in place, or revised. In essence, in extreme circumstancing presidential powers would remain largely unaffected with the only difference being the requirement that the President acquire prior Congressional approval, which would have been easily granted considering the severity of the situation. Only in cases where the necessity of a national emergency is questionable would it be more difficult to obtain congressional approval, which would only be appropriate.

In conclusion, to better ensure future presidents do not violate separation of powers, like Lincoln and FDR did, HR 2655 should become law largely as is with the exception of the provision repealing the War Powers Act. Rather, the War Powers act should be revised with stricter standards for reporting to Congress and perhaps a shorter time span allowing for troops overseas without a declaration of war, perhaps prompting the President to think twice before taking action. Also, to better protect civil liberties form presidential directives, the legislature and the courts must be much more vigilant in ensuring presidential directives do not infringe upon their power or the rights of individuals.

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