Commentary: Originalism and Emergency Powers

The long awaited declassification of the torture memos has set much of the blawging world aflame. There are too many posts for to attempt a full link summary, but I will single out those whose continued coverage of the torture issue has been noteworthy: Balkinization, Convictions (Slate's new blog included by virtue because of the history of the Balkinization contributors and its current discussion), and Obsidian Wings (oh, how I wish Hilzoy wasn’t on vacation).

Others (particularly Marty Lederman) are doing point by point refutations of John Yoo’s analysis. To be honest, I simply lack the background knowledge to attempt to do the same. Instead, I want to engage and refute, on originalist terms, the background meta-level idea of the President as the King-in-wartime that both the memos and Justice Thomas’s opinion in Hamdi espouse.

In so doing, I will not rely on Supreme Court precedents or on founding-era commentary except for the single quotation of Youngstown in this paragraph. I do not believe either source to be helpful. For every Curtiss-Wright, there is a Youngstown; for every Hamilton, a Jefferson. “A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side . . . .” Instead, I shall try simply to read the Constitution holistically in order to see the general allocation of institutional competencies in emergency situations.

The United States Constitution is fairly unique among modern Constitutions (but similar to ones of its own era) in that it contains no explicit emergency provisions. Indeed, it is formulated as a Constitution for all times, to be applied within exigent circumstances as without. This entry takes the strongest reading of both congressional and presidential power, so as better to compare and contrast them. Such reading, however, does not necessarily comport with my normative position in the current debates – I read the necessary and proper clause more narrowly than provided for below.

• Clear Congressional Powers

The two constitutional provisions that most directly relate to extraordinary circumstances, the habeas corpus clause and the Third Amendment, indicate the necessity of congressional involvement in such momentous decisions. While the habeas corpus clause does not, on its face, suggest who is to exercise the power of suspension, the location of this clause in Article I, section nine does – it is within the section on the limitations of the powers of Congress. Similarly, the Third Amendment dictates that even in times of war, no soldier shall be quartered in any house without consent, except as prescribed by a law – an act of Congress.

Other clear congressional competencies include the taxing power, as needed to “provide for the common defense and general welfare of the United States.” The President, like the English King, could not raise revenue to counteract an emergency without the consent of the legislature. Neither could he expend money on the same. “No money shall be drawn from the treasury, but in consequence of appropriations made by law.” Appropriations bills must originate in the House, who are returned to the people every two years – a popular check on such expenses.

• Clear Presidential Powers

The entire executive power, without the limitation of ‘herein granted’ as found in Article I, is vested in the President of the United States. Another telling difference in the powers of the President and Congress can be seen in the oaths that each must take: the President is obliged to “preserve, protect, and defend the Constitution of the United States,” whereas legislators are merely bound to ‘support’ it. When the two institutions are thus contrasted, it would seem clear that the President has some residuum of authority to respond to threats to the Constitution – to defend it. Hence the presidential duty to “take care that the laws be faithfully executed.”

• Concurrent Powers: The Commander-in-Chief and Declarations

In making the unlimited grant of executive powers, the Constitution does include an exemplary list of the competencies included therewith, one of which is of especial importance in emergencies: the Commander-in-Chief clause. When considering this clause as a source of substantive power, however, a question arises: commander-in-chief of what? It was Congress that was given the power “to raise and support armies; but no appropriation of money to that use shall be for a longer term than two years.” Thus, whether there would be a standing army was left an open question, and the people could change their answer within any election cycle. In the absence of a standing army, it was for Congress to “provide for the calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.” Thus, Congress necessarily plays a role in the exercise of the commander-in-chief powers, whether by continuing authorizations for an army or by calling up the militia.

Only after the commander-in-chief clause and the congressional power of the purse are therefore understood in their proper relation, can the meaning of the power “to declare war” be examined. Originally, the founders had invested Congress with the entire power to make war. One delegate objected to this formulation because “its proceedings were to slow.” The substitution of ‘declare’ for make was proposed, “leaving to the Executive the power to repel sudden attacks.” The broadest reading of the congressional power to declare war leaves almost all war powers in its hands, excepting only the ability to respond to crises before legislative action is possible. The narrowest conception, on the other hand, allows the President certain discretion for initiative but still leaves significant power in the hands of Congress.

• Contingent Powers: The Importance of Timing

Other provisions of the Constitution support the former broad reading and stress the importance of timing in the constitutional allocation of powers. The first such provision prohibits the states from engaging in war without the consent of Congress. The only exception to this general prohibition is if a state is actually invaded or “in such imminent danger as will not admit of delay.” The President is not consulted at all. Thus, Congress has control over the states’ ability to engage in war, subject to only the most exigent limitations.

Another provision of that has details relating to the timing of institutional competencies is the ‘guarantee clause,’ which concerns the states, and therefore has nothing to do with the allocation of competencies within the federal government. Nonetheless, it is quite enlightening as to the general conception of the division between the legislative and executive powers. It provides that the legislature of a state to decides when federal aid is needed to counter domestic violence. That power only devolves to the executive when the legislature is unable to convene. Only when the legislature is unable to meet a crisis, therefore, can the executive act of its own accord.

This last insight – that the executive may only act of its own accord when the legislature cannot convene – gives a new insight into a constitutional provision previously thought to have nothing to do with emergencies, the ‘state of the Union’ clause. The President “shall . . . recommend to [Congress’s] consideration such measures as he shall judge necessary and expedient.” There is a hidden parallel between that clause and the ‘sweeping clause’ that the Congress is authorized to “make all laws which shall be necessary and proper for the carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States . . . .” If a President believes that some hitherto unauthorized action is necessary to fulfill his clear power to defend the Constitution, he may recommend to Congress that it make a law which permits him to carry his power into execution.

• Powers in Action: ‘Constitutional’ Practices

This description of the Constitution necessarily reads much into the relatively vague lines of the text. “The evident openness of the text here reflected the framers’ genuine uncertainty as they struggled to invent a wholly new sort of executive. Thanks to its gaps and silences, Article II in effect delegated authority to the political branches to negotiate more concrete settlements.” Amar, 197. Thus, the structure of actual emergency governments may reveal ‘constitutional’ practices.

The argument above made much of the fact that only Congress could provide for the calling forth of the militia. Since the earliest days of constitutional practice, when it was confronted with the Whiskey Rebellion, Congress has delegated this role to the President. Thus, “Congress itself has recognized that the executive branch alone can properly exercise emergency power. Delegations of unusual power for the duration of some particular crisis have been made repeatedly since the founding of the Republic.” Rossiter, 219.

Nonetheless, it is notable that these powers must be delegated at all – that they therefore theoretically belong to Congress, and Congress could take them away. Even the experience the Lincoln administration does not deny this fundamental point. Yes, Lincoln unilaterally suspended habeas corpus, yes, he enlarged the military without statutory authority, and yes, he drew money from the treasury without appropriation -- so what? He was acting in the absence of congressional authorization because there was no sitting Congress to authorize his actions. Indeed, Congress had adjourned sine die, and thus ceased to exist as a law-making body. Lincoln appreciated that the powers he was exercising were not executive, but congressional, and accordingly laid them before the Congress which he called into extraordinary session for their consideration. In other words, his action was based on the contingencies of timing. He was quite clear that if Congress disapproved, he could be subject to impeachment.

• Conclusions

If the first reading of the constitutional text supports a strong role for Congress, watching the Constitution in action certainly does not. For example, Congress has only declared war rarely while the President has ordered American troops into conflict abroad relatively frequently. By the mid-1970s more than 470 statutes delegated significant emergency powers to the President and four states of emergency declared by the President were still in force. Through a ‘constitutional’ practice of legislative delegation, the President today occupies the predominant position in emergency situations. Such position, however, cannot be said to be exclusive or inherent in the nature of the executive.