Presidential Powers Topic Paper – Spring 2006
Main section by Gordon Stables
Detention section by Stefan Bauschard
Immigration section by Sue Peterson
With assistance from Andy Peterson, Ryan Galloway & Scottie Phillips
In the four years since the 9/11 terrorist attacks the college debate community has been considering different ways to debate the subject matter most relevant to the war on terrorism. Although numerous areas have provided some overlap with the domestic or international implications of the war on terrorism, we have as yet, not found something that allows a direct engagement with the host of policy issues relevant to the war. The area of presidential powers, although having some of its own flaws, is a very timely and complex base of literature that would make a valuable intercollegiate debate topic.
This effort is the joint product of several people and that is a reflection of the wide potential latitude involved with the subject matter. It also reflects that presidential power remains one of the most salient issues for collegiate debate. Sue Peterson authored a paper on immigration reform (included with this paper) for consideration as the 2005-2006 college topic and Stefan Bauschard has provided his insight into the way in which the collegiate topic might differ from the 2005-2006 high school topic,
“Resolved:
That the
In addition to the current high topic, this paper also draws upon the last time the collegiate debate community debated presidential power, the 1993-1994 topic,
“Resolved:
"That the Commander-in-Chief power of the President of the
This can be seen as an evolution of the 1974-1975 NDT topic,
“Resolved: "That the power of the Presidency should be significantly curtailed."
The challenge of approaching the war on terrorism primarily stems from the incredibly diverse range of policies that collectively inform public understanding of the war. Political scientists have begun to identify the centrality of aggressive interpretations of presidential power as a unifying theme, for example:
William
G Howell, Presidential Studies Quarterly, September 2005, “Unilateral Powers: A
Brief Overview” (35: 3), p. 417
To advance
their policy agenda, presidents have two options. They can submit proposals to
Congress and hope that its members faithfully shepherd bills into laws; or they
can exercise their unilateral powers-issuing such directives as executive orders, executive
agreements, proclamations, national security directives, or memoranda-and
thereby create policies that assume the weight of law without the formal
endorsement of a sitting Congress. To
pursue a unilateral strategy, of course, presidents must be able to justify
their actions on some blend of statutory, treaty, or constitutional powers; and
when they cannot, their only recourse is legislation. But given the ambiguity of Article II powers
and the massive corpus of law that presidents can draw upon, as well as the
well-documented travails of the legislative process, the appeal of unilateral
powers is readily apparent.
Not
surprisingly, almost all the trend lines point upward. During the first 150 years of the nation's
history, treaties (which require Senate ratification) regularly outnumbered
executive agreements (which do not); but during the last 50 years, presidents
have signed roughly ten executive agreements for every treaty that was
submitted to Congress (Margolis 1986; Moe and Howell 1999b). With rising
frequency, presidents are issuing national security directives (policies that
are not even released for public review) to institute aspects of their policy
agenda (Cooper 1997, 2002). Since Truman fatefully called the Korean War a
"police action," modern presidents have launched literally hundreds
of military actions without first securing a formal congressional authorization
(Blechman and Kaplan 1978; Fisher 2004b). Though the
total number of executive orders has declined, presidents issued almost four
times as many "significant" orders in the second half of the
twentieth century as they did in the first (Howell 2003, 83). Using
executive orders, department orders, and reorganizations plans, presidents have
unilaterally created a majority of the administrative agencies listed in the
United States Government Manual (Howell and Lewis 2002; Lewis 2003). These
policy mechanisms, what is more, hardly exhaust the options available to
presidents, who regularly invent new ones or redefine old ones in order to suit
their own strategic interests.
For
years, political scientists paid precious little attention to these trends. Until recently,
only one book had been written on the president's unilateral powers (Morgan
1970), and most journal articles on the topic were published in law reviews
(see, e.g., Cash 1963; Fleishman and Aufses 1976; Hebe 1972). There
are signs, though, that change is afoot. In the past several years, three books have focused exclusively on the
president's unilateral powers (Cooper 2002; Howell 2003; Mayer 2001), and
others are in the works. A number of articles on executive orders have been
published in mainstream political science journals (Cooper 2001; Deering and Maltzman 1999; Howell
and Lewis 2002; Krause and Cohen 1997, 2000; Mayer 1999; Mayer and Price 2002;
Moe and Howell 1999a, 1999b). And for the first time, edited volumes on the
general topic of the presidency are devoting full chapters to unilateral powers
(Edwards 2005; Rockman and Waterman, forthcoming).
The
nation's recent experience under the last two presidential administrations
makes the subject all the more timely. From the creation of military tribunals
to try suspected "enemy combatants" to tactical decisions made in
ongoing conflicts in Afghanistan and Iraq to the freezing of financial assets
in U.S. banks with links to bin Laden and other terrorist networks to the
reorganization of intelligence gathering domestically and abroad, Bush has relied upon his unilateral
powers in virtually all facets of his "war on terror." And to the considerable consternation of congressional
Democrats, Bush has issued numerous rules that relax environmental and
industry regulations concerning such issues as the amount of allowable diesel
engine exhaust, the number of hours that truck drivers can remain on the road
without resting, and the logging of federal forests.
The significance of placing the war on terror into the larger frame of expanding executive authority is that identifies a very significant trend in public policy research and it helps to provide some balance in terms of the types of arguments available to either side. Consider first that the identification of massively expanding executive power makes any such consideration of a presidential powers topic very different from the 1993-1994 Commander-in-Chief topic.
Nancy Kassop, Professor and Chair, Department of Political
Science and International Relations
State
University of New York at New Paltz, February 20,
2006, Delivered as The Clifford Barclay
Memorial Lecture, The London School of Economics, “Law vs. Presidential Power
in the Bush Administration's Antiterrorism Policies: One at the Expense of the
Other” p. 1-3
http://www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/events/2006/20051215t1444z001.htm
Rather, what
has been jettisoned is the carefully calibrated structure of government that
James Madison designed in 1787. Government power, according to
If
So,
this is really a tale of three branches: a grab for power by the executive, and
dereliction of duty by Congress and the courts. More bluntly, this is a story
of executive aggrandizement, legislative acquiescence and judicial abdication.
The
title of tonight's talk, "Law vs. Presidential Power in the Bush
Administration's Antiterrorism Policies: One at the Expense of the Other,"
was chosen months ago, as a catch-all that I assumed would probably describe
any number of actions by the Bush administration. I had no idea at that point
that a controversy would erupt a couple of months later over the use of the
National Security Agency for warrantless domestic surveillance in the
The
title was a very deliberate and intentional one, because it expressed
succinctly what I saw as the governing strategy of the Bush administration. The
domestic surveillance controversy, then, represents only the latest example,
although perhaps, the most damaging one, of an approach that treats the law as
inconvenient when power is on your side.
So, what
I would like to do tonight is to address this issue of law vs. power with you,
and give you my impressions of how this simple dichotomy is a consequential
shorthand for the Bush administration’s strategy for fighting terrorism.
And, in
fact, it's a pretty simple strategy. It can be summed up in what could be a
sub-sub-title of this talk:
Governing
Without Congress or the Courts – or – the Hypnotic Effect of the Words
"Commander-in-Chief"
On a
variety of fronts, the administration's position is that the president has
exclusive and absolute power in times of war, and that neither Congress nor the
courts can interfere with or restrict that power.
It
did not have to be this way – and it has never been so in the past.
One
note that I should insert here:
And
that is – that it might be easy to dismiss what I’m going to say tonight as a
red-meat anti-Bush speech. But, in fact, the motivation behind my remarks is a
lot more serious and substantive than that.
I study
the presidency, and within that field, I study presidential power, and within
that field, I study the constitutional aspects of presidential power. My
fellow colleagues and I have watched the Bush presidency for five years now,
and I would venture to say that there is universal
acknowledgement among us that this administration’s interpretation of the scope
of presidential powers is the most extreme position on executive authority that
has ever been articulated – and it has never been accepted by the courts as
legitimate or constitutional.
Unlike debating about the desirability
of a relatively young and weak
David Moberg, In These Times, February 2006, “An Imperial
President” p. 4
EVEN
BEFORE HIS confirmation hearings for the Supreme Court, it was clear that Judge
Samuel Alito believed in the obscure doctrine of the
"unitary executive." After
the hearings, we still don't know exactly what Alito
thinks about the limits, if any, of presidential power. But in the Bush era,
few issues are more important.
The
doctrine of the unitary executive -- that is, an executive branch under the
control of the president alone -- is not clearly established by either the
Constitution or historical precedent.
For some observers it means, relatively uncontroversially, that the president should have
supervisory authority over members of the executive. For others, it means that
Congress can't establish agencies, like the Securities and Exchange Commission
that are independent of the president. But it could also mean that, acting as commander-in-chief and exercising
war powers, the president can do almost anything he deems necessary, and
neither the courts nor Congress can intervene.
It's
this latter, dangerous view that Bush appears to hold. Of the Supreme Court
justices, Clarence Thomas has taken the most radical stance, supporting the
government's right to detain even American citizens as enemy combatants without
charges. Thomas' public views still fall short of the arguments
made by John Yoo, former deputy assistant attorney
general in Bush's Office of Legal Counsel, who defends the president's right to
order torture if he deems it necessary for national security.
Bush's
claims to unchecked power have grown as the legitimacy of his policies has
collapsed. In response to legislation prohibiting torture sponsored by Sen.
John McCain, Bush claimed to be exempt, even as he signed the law. When leakers revealed that the National Security Administration
had been spying on thousands of Americans, without judicial warrants and in
knowing violation of the Foreign Intelligence and Surveillance Act, Bush
defended his lawbreaking. (See "The First Stone," page 20.)
The
challenge to law and democracy posed by the Bush administration's actions is
especially dangerous because Bush's claim to war powers and the impunity of the
unitary executive lies on two deeply flawed grounds. First, he claims to be
commander-in-chief of an endless "war on terror" that bears no
relation to any previous war. And he
asserts his power as commander of an undeclared war in
Previous
presidents have abused power in wartime and lied to promote war. But Al Gore
was right in his fiery address on Martin Luther King's birthday that the threat
is much greater under Bush, because of the embrace of the unitary executive
theory by both his administration and probably -- with Alito's
likely confirmation-by at least four members of the Supreme Court.
Ironically,
as the
Thus situated as the latest and most-dangerous, part of a century-long trend of expanding executive authority, we begin to have a policy mechanism that might allow for both a diverse range of affirmatives and a predictable policy mechanism.
It is also important to note that
an essential controversy remains how far the Bush administration is going in
terms of its claims for expanded executive authority. It is clear that there
are legal scholars, notably former Justice Department official and Professor of
Law at
Specific affirmative cases will be mentioned in each area, but the general outline is that affirmatives can argue that the constant expansion of presidential authority has rendered the constitutional process of checks and balances ineffective resulting in poor domestic policies and international concerns. Affirmatives can and should be able to access advantages from the value of more diverse sources of input when making certain policy decisions, legal advantages from reinstating barriers on unlimited executive authority and international advantages from a more legitimate process.
Negatives interested in debating the affirmative or even the topic can always oppose the specific area of restriction, contend that the flexibility accorded to the president is uniquely necessary or contend that less restrictive means are available to address the concern (i.e, an executive order).
This paper serves an area paper and therefore attempts to explore the important issues and concerns about a possible topic and then provides a series of suggestions for specific wording explorations. A great deal of work remains to be done about how exactly to word such a topic, but the remainder of the paper explores some of the basic controversies that we would consider.
Stefan and Steve Mancuso have both discussed the value of a basic topic framing that should serve as a starting point for discussion. A topic in this area could resemble:
Resolved: The United States Federal Government should substantially reduce presidential power in one or more of the following areas:
· war powers
· detention,
· tribunals,
· interrogation
· immigration,
· surveillance/searches
· treaty abrogation
This is obviously not a resolution that we should debate. These areas taken together obviously represent a very, very broad topic. Based on recent past practice, it would seem that perhaps several of these areas could be ideally combined to offer a reasonably sized topic. The composition of those areas will also influence the stem phrase, as for example, specifying certain areas might influence the topic of presidential authority that is involved.
The value of this phrase is to serve as a starting point to organize discussion and further exploration. I will discuss the stem (i.e, the action phrase that precedes areas) as well as the relevant areas to help explicate what this topic might resemble in terms of argument options.
Consideration will need to be given to the desirability of specifying the branch of USFG that should adopt the affirmative. Part of the reason why previous topics used the formal language of ‘authority’ and ‘curtail’ is to ensure that the debates remain with legal understandings of these terms. Thanks to Scottie Phillips for suggestions in this area. Keep in mind that authority or power is distinct from the exercise of that authority.
Law.com
(http://dictionary.law.com/definition2.asp?selected=2478&bold=||||)
authority
n. permission,
a right coupled with the power to do an act or order others to act. Often
one person gives another authority to act, as an
employer to an employee, a principal to an agent, a corporation to its
officers, or governmental empowerment
to perform certain functions. There
are different types of authority, including "apparent authority" when
a principal gives an agent various signs of authority to make others believe he
or she has authority; "express authority" or "limited
authority," which spells out exactly what authority is granted (usually a
written set of instructions) "implied authority," which flows from
the position one holds and "general authority," which is the broad
power to act for another.
It is desirable to have an external restraint placed on the constitutional authority of the presidency and it may be necessary to specify the ‘who’ and ‘how’ of the restraint. It is also important to provide the negative with the opportunity for voluntary restraint of such authority, although it remains an open question about if the negative should also possess the ability to have the president formally restrict their own authority (i.e, codifying a reduction by agreeing to an international convention). One of the useful elements of this debate should be to provide a clear divide between the need to formally reduce the president’s legal authority and the desirability of simply reversing a policy. As will be mentioned in some of the areas, there are many active disputes about if a presidential action, particularly through reversible actions like executive orders, would be enough to stop certain practices and instill international confidence in American decision-making.
This also previews that the agent selection provides a crucial area of ground for both sides. Active debates about Supreme Court deference to presidential authority, congressional-executive relations, and independent presidential action are also central types of arguments available to each side.
In 1993, the resolution called for a curtailment of the president’s commander-in-chief authority. The decision to define the specific grant of constitutional legitimacy provided an important limit on the topic and similar measures would need to be considered this year. In particular, concern should be expressed about the potential complexities involved with the term ‘presidential power.’ It seems apparent that the single most cited view of this concept is the sense of power as bargaining made popular by Richard Neustadt. In this sense, presidential power relates to the institutional abilities to persuade and negotiate with other policy actors. This presents a problem if the phrase presidential power could be reasonably broadened beyond the exercise of formal grants of authority and into the informal elements of the office.
Fortunately, recent discussion of the current trend in expanding claims of executive authority seem to cast doubt on the utility of Nuestadt’s interpretation to the modern presidency. William Howell explains why the Neustadt view is inadequate for understanding the presidency during this historical moment.
William
G Howell, Presidential Studies Quarterly, September 2005, “Unilateral Powers: A
Brief Overview” (35: 3), p. 417
The
image of presidents striking out on their own to conduct a war on terrorism or revamp civil rights policies or reconstruct the
federal bureaucracy contrasts sharply with scholarly literatures that equate
executive power with persuasion and, consequently, place presidents at the
fringes of the lawmaking process. Conducting a secretive war on terrorism,
dismantling international treaties brokered by previous administrations, and
performing end runs around some of the most important environmental laws
enacted during the past half-century, Bush has not stood idly by while
committee chairs debated whether to introduce legislation on his behalf.
Instead, in each instance he has seized the initiative, he has acted boldly
(some would say irresponsibly, or even unconstitutionally), and then he has
dared his political adversaries to counter. Having issued a directive, Bush
sought not so much to invigorate Congress's support as to neutralize its
criticism. An inept and enervated
opponent, rather than a cooperative and eager ally, seemed to contribute most
to this president's powers of unilateral action.
The
actions that Bush and his modern predecessors have taken by fiat do not fit
easily within a theoretical framework of executive power that emphasizes
weakness and dependence, and offers as recourse only persuasion. For at least
two reasons, the ability to act unilaterally is conceptually distinct from the
array of powers presidents rely upon within a bargaining framework. First, when
presidents act unilaterally, they move policy first and thereby place upon
Congress and the courts the burden of revising a new political landscape. If they choose
not to retaliate, either by passing a law or ruling against the president, then
the president's order stands. Only by taking (or credibly threatening to take)
positive action can either adjoining institution limit the president's
unilateral powers. Second, when the
president acts unilaterally, he acts alone. Now of course, he relies upon
numerous advisers to formulate the policy, to devise ways of protecting it
against congressional or judicial encroachment, and to oversee its
implementation (more on this below). But in order to issue the actual
policy, the president need not rally majorities, compromise with adversaries,
or wait for some interest group to bring a case to court. The president,
instead, can strike out on his own. Doing so, the modern president is in a
unique position to lead, to break through the stasis that pervades the federal
government, and to impose his will in new areas of governance.
The
ability to move first and act alone, then, distinguishes unilateral actions
from other sources of influence. Indeed, the central precepts of Neustadt's argument are turned upside down, for unilateral
action is the virtual antithesis of persuasion. Here, presidents just act;
their power does not hinge upon their capacity to "convince {political
actors} chat what the White House wants of them is what they ought to do for
their sake and for their authority" (Neustadt 1990, 30). To make policy, presidents need not secure the
formal consent of Congress. Instead, presidents simply set public policy and
dare others to counter. And as long as Congress lacks the votes (usually two
thirds of both chambers) to overturn him, the president can be confident that
his policy will stand.
A key question would be attempting to determine if the term presidential power could be specified into some of the specific grants of constitutional authority. Executive power provides one avenue for limitation, even though it may not fully incorporate all areas. It also retains some elements of ambiguity because of the gaps between enumerated and implicit grants of that authority, as noted by
David I.
Lewittes, Associate,
The
difficulty of a complete enumeration of all the cases of executive authority,
would naturally dictate the use of general terms, and would render it
improbable that a specification of certain particulars was designed as a
substitute for those terms, when antecedently used. The different mode of
expression employed in the Constitution . . . serves [*1089]
to confirm this inference. In [Article I] the expressions are "All
legislative powers herein granted shall be vested in a congress of the
In any event, the term ‘presidential power’ should be seen as a place-holder for a term that will provide a contextual limit to the types of legal authority that affirmatives can restrict. It will also inform the choices of the specific action (ie reduce or curtail or diminish) because it would ideal to select a term with legal meanings that reflect the most common expression of how a legal authority could be formally diminished.
Ryan Galloway helped me to understand this issue back on the CIC topic, when he helped us win a number of debates by arguing that we need to be careful with conflating congressional restrictions through legislation and actual reductions in presidential authority. Thanks also to Ryan for this cite:
Bennett
C. Rushkoff, "A Defense of the War Powers
Resolution", Yale Law Journal, June, 1984, 93 Yale L.J. 1330
The
President's "war powers" refers to two distinct though partly
overlapping powers: a broad "executive power," which is amenable to
legislative control, and a rather narrow commander-in-chief power, which
Congress may not curtail.
The specific version of the phrase should be selected by the basis of which grant of legal presidential authority is most relevant to the crucial areas and most susceptible to external limitation. If the decision is made to limit presidential power into a specific grant of authority, it will also be helpful line of argument for negatives that could counter-plan to reverse a different grant of authority. In any event, it is clear that there is ample literature, like that below, which explains the solvency for congressional or judicial efforts to restrain presidential authority.
William
G Howell, Assistant Professor of Government -
Plainly,
presidents cannot institute every aspect of their policy agenda by decree. The
checks and balances that define our system of governance are alive, though not
always well, when presidents contemplate unilateral action. Should the
president proceed without statutory or constitutional authority, the courts
stand to overturn his actions, just as Congress can amend them, cut funding for their
operations, or eliminate them outright.4 Even
in those moments when presidential power reaches its zenith-namely, during times
of national crisis-judicial and congressional prerogatives may be asserted (Howell and Pevehouse 2005,
forthcoming; Kriner, forthcoming; Lindsay 1995, 2003;
and see Fisher's contribution to this volume). In 2004, as the nation braced itself for another domestic terrorist
attack and images of car bombings and suicide missions filled the evening news,
the courts extended new protections to citizens deemed enemy combatants by the
president,5 as well as noncitizens held in protective custody abroad.6 And while
Congress, as of this writing, continues to authorize as much funding for the
Iraq occupation as Bush requests, members have imposed increasing numbers of
restrictions on how the money is to be spent.
Though
we occasionally witness adjoining branches of government rising up and then
striking down presidential orders, the deeper effects of judicial and
congressional restraints remain hidden. Bush might like to unilaterally
institute a ban on same-sex marriages,
or to extend additional tax relief to citizens, or to begin the process of
privatizing aspects of Social Security accounts, but he lacks the
constitutional and statutory basis for taking such actions, and he therefore
prudently relents.7 And so it is with all presidents. Unilaterally, they
do as much as they think they can get away with. But in those instances when a
unilateral directive can be expected to spark some kind of congressional or
judicial reprisal, presidents will proceed with caution; and knowing that their
orders will promptly be overturned, presidents usually will not act at all.
Although the balance between the war powers of the president (as commander-in-chief) and the congress (to declare war) has been steadily shifting toward in the executive in the last century, the unique features of the war on terrorism threaten to both accelerate and further entrench executive dominance over the power to engage in military operations. The administration’s pre-emption doctrine provides a specific way in which the ambiguities of modern warfare may eviscerate congressional war-making power.
Cato
Handbook for Congress: Policy Recommendations for the 108th Congress, 2003, p.
113-114
"Reclaiming
the War Power," Chapter 11,
http://www.cato.org/pubs/handbook/hb108/hb108-11.pdf
The administration’s
new security doctrine, which emphasizes preemptive military strikes, may have
equally troubling consequences for congressional control over the war power.
Under the new doctrine, rogue nations in the process of developing nuclear,
chemical, or biological weapons will be vulnerable at any time to sudden attack
by the
Granted,
the Constitution does not categorically rule out unilateral military action by
the president. No one would argue
that, when missiles are in the air or enemy troops are landing on our shores, the
president is obliged to call Congress into session before he can respond. As
Madison’s notes from the Constitutional Convention make clear, the
constitutional consensus about war powers was that, though Congress had the
power to ‘‘commence war,’’ the president would have ‘‘the power to repel sudden
attacks.’’ Within that power, there’s some latitude for preemptive strikes. If
a rogue state plans a nerve gas attack on the
But
if the preemptive strike doctrine morphs into a freestanding justification for
presidential wars, that will have grave consequences for the constitutional
balance of power. The doctrine applies whether or not any specific attack on
the
Moreover, such a power would be ripe for abuse. Firm evidence of WMD capability is very hard to
come by—indeed, in the case of Iraq,
Secretary of Defense Donald Rumsfeld doubts that even an intensive, onthe- ground inspection regime, such as the United Nations
operated in Iraq until December 1998, could determine with any degree of
certainty what Saddam’s WMD capabilities are. Justifications for preemptive wars will necessarily be speculative
and susceptible to manipulation. The potential for politically driven attacks
would be enormous.
Public
opinion polls indicate that Americans view President Bush as a person of
integrity and reward him with a high
level of public trust. But Bush will not be the last president to wield the
broad new powers his administration is forging in the domestic and foreign
affairs arenas. As Rumsfeld has noted, the war on terror will take
years, and if and when victory is achieved, we may not know with any certainty
that we’ve won.
Our
entire constitutional system repudiates the notion that electing good men is a
sufficient check on abuse of power. As
President Bush himself noted in his September 17 proclamation: ‘‘In creating
our Nation’s Constitutional framework, the Convention’s delegates recognized
the dangers inherent in concentrating too much power in one person, branch, or
institution.’’ It’s imperative that
the 108th Congress resist the tendency to concentrate power and the further
growth of the imperial presidency.
The question of expanding presidential authority (i.e., commander-in-chief authority) at the expense of congressional power (i.e., to declare war) is the subject of extensive debates in the post War Powers Act decades. This is a great area for debates about the nature of formal restrictions as congress, in passing the War Powers Act, attempted to do exactly what this topic area might call for, with some very curious results. The development of the preemption doctrine only heightens these concerns.
Affirmatives would likely argue that the expansion of presidential powers risk a cycle of never-ending wars that can only be reigned in through greater external controls on the presidency. These war powers may include not only the decision to use force against another nation or non-state entity, but also the exercise of war-related authority, including discussion of detention, tribunals and interrogation. At this point these areas as included separately to highlight their importance, but a conversation could take place about including several of these areas within the phrase ‘war-powers.’ An example of the type of affirmative solvency evidence is found in
Nancy Kassop, Professor and Chair, Department of Political
Science and International Relations
State
University of New York at New Paltz, February 20,
2006, Delivered as The Clifford Barclay
Memorial Lecture, The London School of Economics, “Law vs. Presidential Power
in the Bush Administration's Antiterrorism Policies: One at the Expense of the
Other” p. 16-17
http://www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/events/2006/20051215t1444z001.htm
Finally,
the scorecard for separation of powers and checks and balances in the
current context seems to be, that, in the five years since September 11th,
Congress has been mostly asleep at the wheel, either delegating overly broad
and unclear power to the president or none at all, while the president simply
filled in the vacuum, either by executive order or by excessive claims of
constitutional authority, exhibiting
no sense of hesitation that he perhaps might need the participation of Congress
to assure the constitutionality of his actions.
Congress
is starting to wake up, in small, incremental steps, to the realization that it
has an institutional role to play. But only when members of the president’s own
party start to speak out and take independent stands will public opinion demand
accountability by and from the system.
The
courts have been the venue for the deeper inquiries on these policies, and the Bush
administration has done all it could to derail these efforts. The Supreme
Court addressed a trio of important cases in June 2004 (Rasul,
Hamdi and Padilla, although there was no substantive
decision in Padilla, and it is, as we speak, under consideration by the Court
for a possible second hearing), and its decisions resulted mostly in sharp
rebukes to the president. The Court, then, is starting to apprehend the
enormity of the exclusive powers the president has claimed.
Now, we
have "Terrorism 2 " cases – the second round – as well as two new
Supreme Court justices. By late June
of this year, we may have more answers from the Court, especially on the
constitutionality of military tribunals and indefinite detention, and on the
president’s authority to provide for these by executive order alone.
In
conclusion, presidents have grabbed Congress’s war power for themselves,
Congress has not been effective in reclaiming its lost power, and the courts
have only started to engage in this constitutional dialogue. The actions of
this president have eroded the cornerstones of the Constitution and the system
of a government of limited powers that it established. And, yes, President
Bush’s strategy would stun Madison and Hamilton by the certitude with which he
proclaims the singularity of his office and its powers. They would not be
pleased by this current state of the presidency – and neither should we.
As Kassop mentions, the Supreme Court is regularly being asked to consider these exact questions and it appears that despite a greater willingness to hear some of these cases, the court is expected to follow its recent actions by continuing to defer to presidential authority. The most recent Court action highlights the disagreement and the trend of deferential rulings, while still acknowledging the possibility of future action.
Stephen
Henderson, Knight Ridder Newspapers,
“Supreme
Court won't hear 'enemy combatant' case”
http://www.bradenton.com/mld/bradenton/news/local/14255203.htm
The
Supreme Court refused Monday to decide whether the president can detain
Americans classified as "enemy combatants" indefinitely and without
charges, saying the issue was now irrelevant to the case of terrorism suspect
Jose Padilla.
In a
6-3 vote, the justices said that although Padilla had been held for more than
three years in legal limbo in a military brig, he'd now been charged with
criminal conspiracy and was awaiting trial in a
Chief
Justice John G. Roberts and Justice John Paul Stevens joined Kennedy's opinion.
Justices Antonin Scalia,
Clarence Thomas and Samuel Alito also voted to reject
Padilla's appeal.
In a
separate opinion, the three remaining justices sharply disagreed with the
court's decision, saying Padilla's case raised issues so profound that the
court had an obligation to decide them.
"Nothing
the government has yet done purports to retract the assertion of executive
power Padilla protests," Justice
Ruth Bader Ginsburg wrote for the dissenters, who included Justices David Souter and Stephen G. Breyer.
Although
the government has charged Padilla, she said, nothing prevents President Bush
from returning him to military custody or reclassifying him as a combatant.
Kennedy
warned that if that were to happen, the courts could - and should - "act
promptly" to preserve Padilla's rights.
Monday's
decision also offers few obvious clues as to how the justices will resolve
another pending terrorism case, involving military tribunals for foreign
detainees at Guantanamo Bay,
Several
justices expressed sharp doubt during oral arguments last week on the
Padilla's
saga is a key test not only of the balance between presidential wartime powers
and individual rights but also of the balance among the three branches of
government. Monday's ruling highlights the deference with which the justices
are approaching the separation-of-powers issues.
We will obviously need to be careful to render both the direction and the substance of the topic relevant even after the decision is handed down about Guantanamo Bay, but this should provide a good indication that although this area is timely, it is not so unpredictable as to render it difficult for negatives to have a reasonable expectation of how the status quo is generally developing.
Stefan Bouchard’s paper (attached) offers detailed commentary on these areas. There will be discussion and consideration of how to specifically define these areas, but it is important to consider that each of these areas has an extensive policy discussion. It is also significant that the treaty abrogation area is also a means of potentially incorporating several of these areas, specifically in terms of how the president is required to comply with the Geneva Convention.
Sue Peterson’s paper (attached) offers detailed commentary on the broader subject of immigration. Stefan’s paper also discusses the detention of nonresident aliens. With the substantial ongoing discussion of national revision of federal immigration policy, it will be important to monitor how, if at all, legislation alters executive authority in this area.
Sue’s paper is very comprehensive in its discussion of relevant issues, but it to address the concern that immigration policy may not be central to the war on terror, it is apparent that the Bush administration’s presidential war policy extends to the Justice Department’s embrace of immigration policy tools.
Nancy Kassop, Professor and Chair, Department of Political
Science and International Relations - State University of New York at New Paltz, September 2003, Presidential Studies Quarterly, “The
War Power and Its Limits” (33:3), pp. 509
At
the same time that Congress and the administration were negotiating the Patriot
Act, the Justice Department was promulgating rules that were equally as
controversial, devised entirely within the executive branch, and implemented
before the public comment period had expired (Bettelheim 2002). The first was an
Immigration and Naturalization Service rule approved by Ashcroft on
The
department has fanned further criticism with its detention of more than 1200
people in the aftermath of September 11 for violation of immigration laws, for
being material witnesses to terrorism, or, as in the cases of Jose Padilla and Yaser Esam Hamdi, for being
"enemy combatants" based on government suspicion that they have
direct involvement with terrorist groups (Liptak
et al. 2002, AOl). Related to detention for
immigration violations was the memo sent by Michael J. Creppy,
the top immigration judge, to the nation's immigration judges, instructing them
to close their courtrooms and take other precautions to keep secret any
information about "special interest" immigration cases. The Third Circuit Court of Appeals ruled, 2-1, in
October 2002 in North Jersey Media Group Inc. v. Ashcroft (308 F. 3d 198 [3d
Cir. 2002]), overturning a lower federal court judge who had ordered all
deportation hearings to be opened, unless the government made a showing, on a
case-by-case basis, for the need to close them. The majority judges found that
deportation hearings are administrative proceedings, conducted by the executive
branch, and, therefore, are not analogous to judicial proceedings, which are
presumptively open to the public. The dissenting judge found a qualified right
of access to the hearings for the press and the public, and agreed with the
district court judge that hearings should be opened, with exceptions only when
the government can prove a need to close them. judge Scirica,
in dissent, wrote "At issue is not whether some or all deportation
hearings of special interest aliens should be closed, but who makes that
determination" (Duffy 2002). The Third Circuit's ruling conflicted with a
Sixth Circuit decision, thus setting this issue on a probable course for
Supreme Court review. As judge Scirica noted, the fundamental issue here is where the authority lies
to make the decision to close these hearings-with the executive or with the
sitting judge. The government's position is unambiguous in removing that
traditional power from the judiciary and handing it to the executive branch.
The recent New York Times report that revealed the previously secret spying program also unleashed a substantial debate about the limits of presidential authority to order such means of surveillance. Gail Russell Chaddock of The Christian Science Monitor explains how the wiretapping controversy is part of the broader process of enhanced presidential powers.
Gail
Russell Chaddock, Christian Science Monitor,
At
the root of congressional worries about the NSA surveillance case is the
prospect that such broad interpretations of presidential powers could last well
into the future. "We could be in this war on terror for decades,"
says Sen. Sam Brownback (R) of
Several
senators cited the Federalist Papers as the authority for insisting on separation
of powers and a strong system of checks and balances. "No man is
allowed to be a judge in his own cause, because his interest would certainly
bias his judgment...," wrote James Madison in Federalist No. 10.
In
future hearings, the Justice panel is expected to call in outside legal experts
and former Justice Department officials, including Attorney General John
Ashcroft.
"The
attorney general's repeated refrain was, 'Trust us' - we have all the necessary
checks and balances within NSA and the Justice Department," says Bruce
Fein, former associate deputy
attorney general under President Reagan, a potential witness in the next round
of hearings.
"The
president's precedent is a permanent change in the constitutional landscape,
because it has no endpoint to it. The privacy of our homes and conversations
would depend solely on the discretion of the president," he adds.
This issue pits a very significant example of where assertions of the need for immediate action are pitted against the structural need to involve congressional oversight. Affirmatives in this area can cite the debate as a critical issue for civil liberties of millions of Americans. It is also very likely that these debates will be very significant to considering how much unilateral authority should reside with the president.
Daniel
J. Solove, Associate professor of law at the
http://www.concurringopinions.com/archives/2006/01/the_rise_of_pre.html
The
issue of presidential power goes to the heart of what kind of nation we will be, what kind of government we want to have. Far too
often, I've heard discussions of the NSA surveillance issue define the harm as
a threat to civil liberties. While it is true that civil liberties are
threatened, this isn't the primary reason why the NSA surveillance is
problematic. The NSA surveillance is problematic even if no civil liberties
have been violated. The issue is about whether the President can engage in
activities that contravene the laws of the nation. It is about whether we
should allow the President to do so in secrecy, without any accountability to
the people and without any oversight by the other branches of government. The
Bush Administration's theory of presidential power appears to have little articulable limit. In trotting out a theory of presidential
power broad enough to encompass the NSA surveillance, the Administration has
yet to state how that power is limited, if at all, under its theory.
It should also be noted that although electronic surveillance has received the bulk of attention, there are concerns about how the president may employ similar power to conduct physical searches without traditional adhering to warrant requirements.
In
the dark days after the
FBI Director Robert Mueller was alarmed by
the proposal, the two officials said, and pushed back hard against it.
"Mueller was personally very concerned," one official says, "not
only because of the blowback issue but also because of the legal and
constitutional questions raised by warrantless physical searches." FBI
spokesman John Miller said none of the FBI's senior staff are aware of any such
discussions and added that the bureau has not conducted "physical searches
of any location without consent or a judicial order."
In December, the New York Times disclosed
the NSA's warrantless electronic surveillance
program, resulting in an angry reaction from President Bush. It has not
previously been disclosed, however, that administration lawyers had cited the
same legal authority to justify warrantless physical searches. But in a
little-noticed white paper submitted by Attorney General Alberto Gonzales to
Congress on January 19 justifying the legality of the NSA eavesdropping,
Justice Department lawyers made a tacit case that President Bush also has the
inherent authority to order such physical searches. In order to fulfill
his duties as commander in chief, the 42-page white paper says, "a
consistent understanding has developed that the president has inherent
constitutional authority to conduct warrantless searches and surveillance
within the
"Black-bag
jobs." Justice Department spokesman Brian Roehrkasse
says the white paper cited the Gorelick testimony
simply to bolster its legal defense of the NSA's
electronic surveillance program. Roehrkasse points
out that Justice Department lawyers have told Congress that the NSA program "described
by the president does not involve physical searches." But John Martin, a
former Justice Department attorney who prosecuted the two most important cases
involving warrantless searches and surveillance, says the department is sending an unambiguous message to
Congress. "They couldn't make it clearer," says Martin, "that they are also making the
case for inherent presidential power to conduct warrantless physical
searches."
Solvency for reforming the way in which these surveillance decisions are authorized is relatively common. Consider one example of legislative solvency that builds on earlier congressional efforts to reign in domestic surveillance.
Douglas
C. McNabb - Senior Principal of McNabb Associates & Matthew R. McNabb -
Assistant for National Security Affairs at McNabb Associates, March 2006, The
Champion (30:10), “Of Bugs, The President, And The NSA: National Security
Agency Intercepts Within The United States”
Authorization
to apply force against al-Queda related terrorists,
in the President's mind, equates with an authorization to use whatever
mechanisms for surveillance the President may deem necessary to effectively execute the so-called Global War on
Terrorism. The AUMF therefore, so runs the argument, has supplanted FISA
wherever the President so deems.
But
it seems indeed incredible to believe that authority for threat neutralization -- however irresponsibly broad it may have been -- might
be read to grant such a sweeping permission for the surveillance of American
citizens located within the
There are many more defenses of congressional action as well as supporters of judicial intervention. The New York Times editorial board, for example, recently expressed support for legislation that would enhance the prospect of litigation against the administration.
The New
York Times,
http://www.nytimes.com/2006/04/06/opinion/06thu1.html?hp
Congress
seems to lack the backbone to stop President Bush from authorizing wiretaps
without court orders, and censuring him would probably not do much to make him
follow the law. What could make a real difference would be a Supreme Court ruling
that found his domestic surveillance program to be illegal.
A
recently introduced bill would provide a good way to resolve the matter:
putting the National Security Agency's secret spying program on a fast track to
Supreme Court review.
Under
the bill, which was introduced by
Senator Charles Schumer, the New York Democrat, people who suspect that they
are being subjected to warrantless electronic surveillance could challenge the
spying in court. The bill would give
people, like academics and journalists, who communicate regularly with people
in places like
The
challenges would begin in a special three-judge court, then go on the fast
track to the Supreme Court. Suits against the program have already been filed,
but this would put challenges on a firmer legal footing and let them get to the
Supreme Court more quickly. The courts are in a better position than Congress
to take on this issue. Under its current leadership, Congress has failed to
investigate the domestic spying program seriously or to pass the legislation
that is needed to rein it in.
Even if
Congress did pass strong legislation, there is a good chance that President
Bush, who has a sweeping — and unjustified — view of presidential power, would
ignore it. If the Supreme Court told him to stop breaking the law, however, it
would be difficult for him to defy its order.
It is
hard to say for certain how the Supreme Court would rule, particularly since it
has two new members. But it has had a good record recently of interceding
when the Bush administration has gone too far in the war on terror, and it showed appropriate skepticism last week in oral
arguments in another case in this area.
Getting
the courts involved would elevate the domestic spying debate from the level at
which it has languished in Congress —
where defenders of the program have been quick to charge critics with being
politically motivated and unpatriotic. A ruling from the Supreme Court would
keep the focus where it should be, on the law and the serious civil liberties
issues presented by Mr. Bush's domestic espionage.
As in all of the areas, it will be crucial to determine what type of presidential powers needs to be diminished. This determination is especially relevant for those areas where the Bush administration is claiming that a combination of legal grants authorize such action. Consider how administration cites multiple sources of authority to justify its surveillance programs.
Douglas
C. McNabb - Senior Principal of McNabb Associates & Matthew R. McNabb -
Assistant for National Security Affairs at McNabb Associates, March 2006, The
Champion (30:10), “Of Bugs, The President, And The NSA: National Security
Agency Intercepts Within The United States”
Across
bellows for congressional investigations,
n3 the protest resignation by a Foreign Intelligence Surveillance Court judge,
n4 disputes over the extent of congressional oversight, n5 and apparent
blunders which led to inadvertent surveillance on a purely domestic basis, n6
in defense of his decision the President tenders yet another posture of
incredible wartime authority, claiming that the order is supported both through
an elastic understanding of congressional intent and a formidable exertion of
Presidential fiat. The claims are predicated in principle upon two separate
constitutionally recognized powers: Chief Executive and Commander-in-Chief
(CinC), and a third, more circumspect authority:
Inherent Emergency Power.
The final area for consideration is one that may not initially seem as germane to the intersection of the war on terror and claims of expanded presidential authority. Indeed, the recent experience of a topic devoted solely to ratifying one of more treaties would seem to prove that this area has been addressed. At the same time, attempts by the Bush administration to reverse or legally invalidate previous treaty commitments are an important policy tool.
Although there is a reasonable amount of controversy about the legitimacy of current American practices toward prisoners seized during the war on terror, there appears to be something of an agreement that the Bush administration defined away any legal obligations.
David Luban, Professor at
Bush
declared that al Qaeda members have no
In the law of war, military necessity encompasses anything that contributes to victory, so the president's directive really forbids nothing but pointless sadism. Cheney and his new chief of staff, David Addington, have fought the McCain amendment precisely because it would prohibit CID treatment. In short, we comply with our legal obligations because, in the Bush lexicon, we hardly have any.
Even though this is not a formal case of treaty abrogation a controversy exists in regard to how the Bush administration should honor its commitments to the Geneva Convention. It should be considered that even for a stand-alone torture area, the issue of greater compliance (or rather forced compliance) with current international agreements is likely to be quite relevant.
The issue of presidential authority is also relevant in terms of formal withdrawal from other accords. The manner in which the Bush administration withdrew from the ABM treaty offers another example of how the Bush administration expanded its range of tools through an expansive theory of unilateral power. This trend is also unchecked in terms of treaty abrogation and poses risks of unchecked authority.
David
Gray Adler, Professor Political Science –
President
George W. Bush's unilateral termination of the 1972 ABM Treaty between the
In addition to the substantive merits of the treaty itself, it is also apparent that critics of these actions are worried about the potential expanse of presidential power. In this way, the treaty power is an important example of where deference by the other branches is undermining the constitutional separation of powers.
David
Gray Adler, Professor Political Science –
The
court's unwillingness to reach the merits in Kucinich reflects a troubling and
increasing tendency among courts to elide the substantive issues involved in
foreign affairs cases in which
plaintiffs assert executive abuse of power and usurpation.4 The result of
this judicial abstention, typified by the invocation of the political question
doctrine, is that presidential aggrandizement of foreign affairs powers remains
uncurbed and unchecked. Worse, it lends, if not the imprimatur of law and
authority, a certain unwholesome encouragement of the tendencies of the
"Imperial Presidency" (Schlesinger 1973). Professor Louis Henkin has rightly stated: "By calling a claim a
political question courts foster the perception that it is not a constitutional
question and encourage the exercise of political power without regard to
constitutional prescriptions and restraints" (Henkin
1990, 87).
The preceding discussion should be understood as a generally supportive literature review concerning the possible match of presidential powers literature and an intercollegiate debate topic. Affirmatives would have a range of possible options and negatives would benefit not only from a number of procedural arguments, but also a substantive defense of the current policies. This is one of the most controversial areas of public policy, so links to political process arguments would be ripe, especially in mid-term election year. It is also apparent that there are diverse ranges of philosophical theories underpinning presidential power as the central source of these harms and negatives will be able to challenge those assumptions.
From an educational standpoint it is apparent that the lack of an imminent conclusion to the war on terror makes these questions pressing for many years to come. The subject matter is timely, but stable enough to allow a reasonable analysis of policy literature.
If selected as the topic, a great deal of work would need to be done to resolve the wording questions. It would be ideal if each of the stem terms and areas were examined to best produce a workable resolution. Particular attention should be paid to close matches between the agent, the selection of specific presidential authority and the areas. Taken together, a close analysis of these three items can produce a meaningful topic.
[1] Yoo is rather prolific in his defense of this position,
including his recent book "The Powers of War and Peace: The Constitution
and Foreign Affairs After 9/11," published by the