Part I: Emergency Presidential Power and Defining Constitutional Failure

I. Introduction

Scholarly literature on emergency presidential power is divergent and divided into three schools of thought: (1) broad emergency presidential power, (2) statutory authorization, and (3) limited emergency presidential power. Since September 11, 2001, presidents and their administrations have adopted theories of broad emergency presidential power to justify their claimed unilateral authority to conduct the nation’s foreign affairs without scrutinization from the legislative and judicial branches. However, this article (in Part I) argues that theories of limited emergency presidential power prove to be the most persuasive and (in Part II) constructs and applies a framework to define constitutional success and failure to the presidencies of George W. Bush, Barack Obama, and President Donald Trump.

II. Theories of Presidential Power

1. Broad Emergency Presidential Power:

Scholars who subscribe to broad emergency presidential power assert that the president possesses plenary power to defend the nation. Plenary power refers to the president’s absolute power to authorize any actions that they contend are vital to preserve national security. This scholarly approach affords the president, rather than Congress or the courts, with the ability to define the scope and limits, if any, of emergency presidential power. The principal constitutional scholar who advocates for broad emergency presidential power is John Yoo, who served as the Deputy Assistant Attorney General in the Office of Legal Counsel (OLC) during the presidency of George W. Bush. The OLC is a component in the Department of Justice (DOJ) that serves to grant legal advice and guidance to the executive branch.

Yoo and proponents of broad emergency presidential power base their assertions in (1) inherent presidential powers and (2) the sole organ doctrine. Inherent presidential powers exceed those that are (1) explicitly granted by the Constitution and (2) implied. Derived from an 1800 speech by then-representative John Marshall, the sole organ doctrine affirms that the president maintains absolute authority over the nation’s foreign affairs.

1a. Unitary Executive Theory:

One notable theory advanced by scholars who advocate for broad emergency presidential power is the unitary executive theory. The unitary executive theory claims that the president wields all executive power under the Constitution. When the president executes this power, advocates of this theory contend that the president’s actions are unreviewable by the judicial and legislative branches. Therefore, the president is enabled to interpret the Constitution to determine the limits of their power. Proponents of the unitary executive theory conclude that this interpretation of emergency presidential power affords the president with the ability to effectively respond to crises and emergencies.

Champions of the unitary executive theory ground their conclusions in (1) the disparities in the language employed in Article I’s and Article II’s Vesting Clauses and (2) the Oath and Take Care Clause in Article II of the Constitution. First, while Article I, Section 1 vests Congress with “all legislative powers herein granted,” Article II, Section 1 vests “the executive power” in the President of the United States. Unitary executive theory advocates posit that the Framers of the Constitution highlighted this discrepancy to set limits on the legislative branch and prevent the restriction of the executive branch’s power. Second, proponents of this theory claim that the Oath Clause in Article II, Section 1 of the Constitution awards the president with an independent authority to interpret the Constitution because they are tasked to disavow constitutional interpretations that inhibit their ability to defend the Constitution. Similarly, subscribers to the unitary executive theory cite the Take Care Clause in Article II, Section 3 as evidence that the president is authorized to disregard court opinions and legislation that obstruct the practice of executive power.

There are significant weaknesses to the assertions of proponents of broad emergency presidential power. First critics of broad emergency presidential power contend that it violates the system of checks and balances incorporated into the Constitution by its Framers. Second, the notion of inherent presidential power is inherently extra-constitutional. Third, Article II’s Vesting Clause indicates the specific powers granted to the president of the United States, such as the ability to nominate federal judges and make treaties with the advice and consent of the Senate. Lastly, the president fails to possess plenary power over the nation’s foreign affairs as Article I, Section 8 of the Constitution grants Congress with the authority to declare war and raise an army and navy.

2. Statutory Authorization:

The second school of thought in literature on emergency presidential power is statutory authorization. Advocates of statutory authorization assert that Congress is permitted to grant emergency powers to the president in advance of a crisis through statutes. Proponents of statutory authorization emphasize that even supporters of broad emergency presidential power welcome statutory authorization for presidential actions. They conclude that the legitimacy for presidential actions is maximized when the president secures congressional authorization. However, two notable criticisms of statutory authorization are that (1) presidents can misinterpret congressional authorizations and (2) it can be unclear whether presidents acted pursuant to such authorizations.

3. Limited Emergency Presidential Power:

The final school of thought in scholarly literature on emergency presidential power is limited emergency presidential power. Scholars who advocate for limited emergency presidential power contend that presidents only possess the authority to counter sudden invasions or rebellions. They assert that this is a form of emergency presidential power because the sole explicit reference in the Constitution to emergency powers is granted to Congress. Article I, Section 9, also known as the Suspension Clause, grants Congress the ability to suspend the writ of habeas corpus when public safety warrants it or in the case of invasion or rebellion. Habeas corpus refers to the right of a detained person to request to be brought before a judge to challenge the legality of their detention.

The principal constitutional scholar who advocates for limited emergency presidential power is Lou Fisher. Fisher claims that the president bears the limited emergency power to execute unilateral actions to defend the nation, however, they must seek retroactive approval from Congress. Congress is tasked to scrutinize the president’s actions to determine whether to censure or vindicate the president’s actions.

There are significant strengths of limited emergency presidential power that demonstrate that this school of thought is the most persuasive. First, this school of thought respects the rule of law because it demands that the president subject their actions to congressional review. Rule of law is defined as the acknowledgement that the president is accountable and subject to the law and, thus, cannot engage in the arbitrary exercise of power. Second, unlike broad emergency presidential power, limited emergency presidential power adheres to and respects the system of checks and balances constructed by the Constitution’s Framers. Lastly, limited emergency presidential power, despite claims by proponents of broad emergency presidential powers, is sufficient for the president to defend the nation.

III. Defining Constitutional Failure and Success

The proposed framework for defining and determining constitutional success, applied in this article in terms of emergency presidential power, is grounded in (1) adherence to the Constitution’s text, (2) pursuance of the Framers’ intent, and (3) protection of fundamental American political norms.

1. Adherence to the Constitution’s text:

First, constitutional success implies that there is adherence to the Constitution’s text, therefore it is crucial to highlight relevant sections to emergency presidential power. Article I Section 8 of the Constitution vests Congress with the authority “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” Thus, actions and claims by presidents that imply that the president has plenary power and is the nation’s sole organ over foreign affairs are indicative of constitutional failure. The Constitution is clear that Congress and the president share foreign affairs powers, as under Article II, Section 2, “The President shall be commander in chief of the Army and Navy of the United States,” and, “He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.” The last relevant section in the Constitution to emergency presidential power is Article I, Section 9, known as the Suspension Clause, which states that, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Therefore, presidential attempts to suspend habeas corpus are illustrations of constitutional failure. Any actions that fail to adhere to the Constitution highlight constitutional failure.

2. Pursuance of the Framers’ Intent

Second, constitutional success signifies that all three branches of government act in pursuance to the Framers’ intent. One valuable source for determining the Framers’ intent is The Federalist Papers, a collection of essays by Alexander Hamilton, John Jay, and James Madison, under the pseudonym "Publius," designed to bolster support for the ratification of the Constitution. Constitutional scholars regard The Federalist Papers as a critical source for interpreting and understanding the original intent under the Constitution. Federalist No. 23, authored by Alexander Hamilton, asserts, “That there can be no limitation of that authority which is to provide for the defense and protection of the community.” Advocates of broad presidential power often cite Federalist No. 23 because they conclude that such authority to protect the nation is solely afforded to the president. However, this is a fundamental, if not purposeful, misinterpretation of Hamilton’s essay. Hamilton posited that it is the federal government, in its entirety, that must be energetic to ensure national security and the preservation of the United States. Therefore, the unitary executive theory and other theories of broad emergency presidential power violate the Framers’ intent in Federalist No. 23 and indicate constitutional failures when they are employed by the president or lawyers in the Office of Legal Counsel to justify the president’s actions.

Federalist No. 47, written by James Madison, concludes that “the preservation of liberty requires that the three great departments of power should be separate and distinct.” In a similar fashion, Federalist No. 48, authored by Madison, asserts that “the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. Authored by Alexander Hamilton, Federalist No. 51 emphasizes that the structure of the federal government under the Constitution is designed to preserve a system of checks and balances between the three branches of government. It is evident from Federalist No. 47, 48, and 51 that the Framers of the Constitution placed significant value in the separation of powers between the three branches of government to ensure a system of checks and balances. Therefore, any actions that violate the system of checks and balances are examples of constitutional failure.

One such action that violates this system is legislative and judicial restraint. After the terrorist attacks on September 11, 2001, federal courts have engaged in judicial restraint in regard to questions about war powers, which has “upended the Madisonian constitutional system.” In a similar fashion, the legislative branch has deferred to the president’s decision-making during national security emergencies. Therefore, any actions or statements made by any branch of the federal government that fail to uphold the system of checks and balances are illustrations of constitutional failure.

3. Protection of Fundamental American Political Norms:

Finally, constitutional success necessitates the protection of fundamental American political norms. The three most prominent American political norms are (1) forbearance, (2) mutual toleration, and (3) a preference for constitutional democracy over authoritarianism. Forbearance is defined as the notion that “politicians should exercise restraint in deploying their institutional prerogatives,” while mutual toleration is characterized as “the understanding that competing parties accept one another as legitimate rivals.”

A preference for authoritarianism over constitutional democracy is a violation of a significant American political norm. Authoritarianism is characterized by a disregard for (1) constitutional democracy, (2) individual rights, and (3) limits on power. On the contrary, constitutional democracy, the type of political system in place in the United States, protects (1) established law, (2) individual rights, and (3) limits on power.

There are four indicators of authoritarian behavior and tendencies: (1) a rejection of democratic rules of the game, (2) denial of the legitimacy of political opponents, (3) toleration or encouragement of violence, and (4) readiness to curtail the civil liberties of opponents. The preference of authoritarianism over constitutional democracy and the violation of other American political norms constitute constitutional failures because norms reinforce democratic constitutions.

NOTE: Part II of this article will apply the aforementioned framework for defining constitutional failure to the presidencies of George W. Bush, Barack Obama, and President Donald Trump.