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.
The American Presidency: An Intellectual History.
This is a provocative essay on the ambiguities and dilemmas of the American presidency. It offers observations on the issues and controversies surrounding high office, questioning what a president does and by what right he or she does it. This book was named one of the Year's Best Books on Politics by the "Chicago Sun-Times".
Signing Statements: Constitutional and Practical Limits
A constitutional issue largely hidden, except among specialized scholars, reached the public in 2006 when Charlie Savage of the Boston Globe wrote that President George W. Bush "has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution."1 Does the United States have two sets of laws, one performed publicly by Congress and the other conducted after the fact by executive officials? Is the second superior to the first? A dramatic illustration of executive claims had already occurred some months earlier, on December 30, 2005, when President Bush signed a defense appropriations bill that included a provision prohibiting cruel, inhuman, or degrading treatment or punishment of persons held in U.S. custody.2 The purpose of the legislation was to prohibit torture of detainees. In signing the bill, Bush stated that the provision would be interpreted "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."3 In the U.S. constitutional system, what form of law is supposed to govern? The text of a statute or executive interpretations (necessarily done in secret) about how to interrogate detainees? May a President, through a signing statement, nullify or dilute a bill that both Houses had just passed and presented to him? Does that assertion of authority give him, in effect, an item veto? What happens to the President' s constitutional obligation to "take Care that the Laws be faithfully executed"?4 If he found the bill constitutionally repugnant, why not veto it? Moreover, is this attention to signing statements excessive? Should not the focus be whether the President assures that the bill is faithfully carried out? If it is, the President's remarks in a signing statement are of little interest or consequence. On the other hand, if the President said nothing in a signing statement but later prevented the statutory program from being carried out, the constitutional violation is no less serious. On all of these questions a variety of remedies have been offered, including legislation designed to push the dispute over signing statements into court for an ultimate solution. That approach offers little hope for reasons to be given. This Article has four sections. Section I reviews the precedents established over the years that guide the President's duty to enforce the Take Care Clause.5 Courts and Attorneys General have been clear that Congress may direct executive officials to carry out certain "ministerial" acts that the President is constitutionally required to have faithfully implemented.6 In this area, executive officials look to the law, not to competing and potentially overriding presidential interpretations (whether in signing statements or elsewhere). Some statutes are mandatory. Others provide substantial discretion to the President, and his judgments are legally binding within the scope offered by the statutory language. Section II examines the range of positions offered on signing statements, by executive officials, scholars, and private groups. Section III looks at a very unique area: presidential implementation done not in public, as with signing statements, but in secret. This issue has emerged at various times, such as with the Iran-Contra affair, but this Section pays particular attention to the current controversy over the Terrorist Surveillance Program conducted by the National Security Agency after 9/11. Section IV evaluates pending legislation designed to remedy potential problems with signing statements. I. JUDICIAL AND LEGISLATIVE GUIDANCE Presidential signing statements have never been squarely and definitively addressed in court cases or congressional legislation, but numerous precedents over the years provide recognizable boundaries that both sanction and limit presidential discretion. …