The Federalist and Executive Power
Occasionally, the United States is confronted with the dilemma that, in emergencies, presidents may find it necessary to take actions that ignore constitutional restraints and break the law. In such cases, a strict adherence to the law might constrain the president from acting quickly to protect national security. Some have argued that the president has the constitutional authority to take whatever actions are deemed to be necessary, regardless of the law, and that this authority is available indefinitely as long as it is exercised under the commander in chief authority conferred in Article II. After reviewing the arguments in The Federalist, this paper argues that in crises presidents may legitimately take extraordinary actions outside their constitutional authority, but their actions are legitimate only insofar as they are transparent and presidents seek congressional sanction as soon as the immediate emergency has passed.
Message to Congress in Special Session
10 On April 12, 1861, a Confederate commander informed the Union forces stationed at Fort Sumter, in the Charleston harbor, of his plans to attack. The Civil War began an hour later. President Lincoln immediately called for 75,000 volunteers. Four states from the upper South seceded over the following month. With Congress out of session, Lincoln led the military effort without congressional approval for nearly three months. In this speech to Congress, which convened on Independence Day, he depicts the Confederacy as a section of the Union in insurrection rather than a foreign nation requiring a declaration of war. July 4, 1861 Fellow-citizens of the Senate and House of Representatives:
Presidential Defiance of Unconstitutional Laws: Reviving the Royal Prerogative
Introduction The Original Understanding The Royal Suspending and Dispensing Powers The Founders' Understanding Presidential Practice, 1789-1981 Presidential Practice: Introduction Laws Enacted over a Constitutionally Based Veto Signing Statements: Introduction Signing Statements: Acquiescence, Avoidance, and Compliance Signing Statements: Noncompliance Laws Enacted During a Prior Administration Presidential Practice: A Summary of the Historical Record Limiting Presidential Defiance Selected Bibliography Index