New Book: Presidential Emergency Power Reaches Zenith Under Presidents Bush and Obama, But the Dilemma Goes Back to the Framers of the Constitution

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The President of the United States' power to confront emergencies and threats to national security is not provided for in the Constitution and has created tensions with Congress and Supreme Court. American University Professor Chris Edelson addresses the issue in his new book "Emergency Presidential Power" where he traces the history of the dilemma from Presidents Washington to Obama where they have claimed the authority to act unilaterally upsetting the checks and balances intended by the Framers of the Constitution.

Chris Edelson's book, Presidential Emergency Power

Chris Edelson's book, Presidential Emergency Power

Defining the scope and limits of emergency presidential power requires Americans to balance liberty and security.

How much power does the President of the United States have when confronted with an emergency that poses, or is claimed to pose, a threat to national security? American University School of Public Affairs’ government professor Chris Edelson author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror (Wisconsin University Press, 2013) examines the question and carefully traces the history of emergency presidential emergency power from the Framers of the Constitution to the 21st century

“The central problem this book addresses,” says Edelson, “is: given that the Constitution does not expressly provide for emergency presidential power in the absence of congressional authorization but presidents, in practice, do independently exercise such power, how do we define its scope and limits?”
The first half of his book looks at the pre-9/11 history of emergency presidential power. The second half is devoted to examining the post-9/11 presidency. In once-secret Department of Justice memos, the George W. Bush administration advanced the unitary executive theory, claiming inherent power in the name of national security to engage in torture, warrantless surveillance, and detention without trial of suspected terrorists at Guantanamo. As a candidate in 2008, Barack Obama criticized Bush’s approach, but after taking office, Obama found new ways to justify unilateral action, including the targeted killing of U.S. citizens believed to be senior terrorist leaders and military action in Libya without congressional authorization.

Throughout his analysis, Edelson cites excerpts from the U.S. Constitution, Supreme Court opinions, Department of Justice memos, and other primary documents including White House Office of Legal Counsel opinions to explain how the power of the commander-in-chief has been expanded in ways that test, or perhaps overstep, the limits of the Constitution.

Why Define the Scope and Limits of the Presidents Emergency Power

“Defining the scope and limits of emergency presidential power requires Americans to balance liberty and security, to make sure the president has enough authority to deal with threats to national security without taking on so much power that the system of checks and balances fails and constitutional democracy deteriorates,” Edelson explains.

Historically, Edelson explains the three primary justifications presidents have asserted for acting in the name of national security: limited unilateral emergency presidential power subject to retroactive congressional approval (Lincoln is the leading example here); broad unilateral presidential power defined by the president and taken even in defiance of statutory limits and, emergency presidential power authorized in advance by Congress.

The George W. Bush and Obama Administrations: Pushing the Limits

Edelson considers the unitary executive theory, which has its origins in then-Congressman Dick Cheney’s efforts to defend President Reagan’s actions in the Iran-Contra affair. According to this theory, the president has the power to set aside laws that infringe on executive power as defined by the president based on inherent executive power that cannot be limited by Congress. The Obama administration does not use the language of the unitary executive theory, but has found other ways to justify extraordinary measures.

Edelson weaves together the tapestry of past precedent thread by thread to explain how the Bush and Obama administrations justify their actions. While past presidents have also claimed broad power to deal with temporary national security crises—notably Lincoln and Franklin D. Roosevelt--, the post-9/11 presidency has broken new ground and laid claim to broad power during a crisis that has no clear end point .

9/11 Touchstone for Executive Power Play

The September 11, 2001, terrorist attacks served as the touchstone for unitary power proponents like Vice President Dick Cheney to expand and define emergency presidential power says Edelson. The ongoing threat of terrorism has been used to justify expanded presidential power; however, the question remains as to whether this exceeds constitutional boundaries.

Examining arguments formulated by John Yoo, an attorney in the Office of Legal Counsel from 2001-2003, Edelson explains how Yoo justified the unitary executive theory of emergency presidential power in initially secret memos claiming the president can authorize any action he believes necessary to defend the nation, including ordering preemptive military actions and setting aside federal criminal law.

Expanded Power in the Obama Administration

According to Edelson, President Obama found ways to justify unilateral action of his own, including military action in Libya. Ordering air strikes on Libya without congressional authorization flew in the face of candidate Obama’s assertion that the president does not have constitutional power to unilaterally authorize military action, absent an imminent threat or attack against the United States. Harold Koh, a State Department lawyer, found ways to argue that the Constitution and War Powers Resolution do not limit such action, as long as it does not amount to “war” or “hostilities.” Koh’s strained analysis begs the question of whether Congress can effectively limit military action that does not involve ground troops.
Obama also used Office of Legal Counsel memos to his advantage. A still secret memo authored by David Barron and Marty Lederman reportedly justified presidential authority to place U.S. citizens who are believed to be senior operational terrorist leaders on a kill or capture list, without proving such charges in a judicial forum of any kind. A Department of Justice white paper said to summarize the Barron-Lederman memo again raises questions as to whether the administration has simply found its own ways to navigate around constitutional and statutory checks on presidential power.

Edelson challenges readers to consider whether the Supreme Court or Congress will act to preserve their respective checks and balances on the executive or in the alternative cede their powers to the executive to the point of no return. Ultimately, he suggests, it will be up to Americans to decide the future of presidential power, and this book is designed to provide the information need to reach their own conclusions as to whether presidential power is properly defined or in need of additional constraint.

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