Confronting Terror by Dean Reuter

Author:Dean Reuter
Language: eng
Format: epub
Publisher: Encounter Books
Published: 2011-08-22T00:00:00+00:00

EXECUTIVE POWERS IN TIMES OF WAR

A broader constitutional issue is whether Congress can interfere with the President’s authority to wage war. The Bush Justice Department concluded that the torture statute could not limit the President’s constitutional exercise of his commander-in-chief power to dictate the interrogation of enemy prisoners during wartime. I believe that in times of crisis, the Constitution grants the President broad powers to respond to unforeseen circumstances and dangerous threats to protect the nation. This was the very essence of the executive power at the time of the framing of the Constitution and the reason it is concentrated in one person: so that the nation can respond with speed, decision, and force, particularly in times of war. Presidents such as George Washington, Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and Ronald Reagan all shared this understanding of presidential power.26

Nevertheless, a collection of law professors and human rights and liberal activists attacked this as “an unprecedented and under-analyzed claim that the Executive Branch is a law unto itself” which is “incompatible with the rule of law and the principle that no one is above the law.”27 They argued that the OLC opinion’s conclusion that the commander-in-chief power could override the anti-torture statute violated professional ethics standards because it did not discuss certain dicta in Youngstown Sheet & Tube Co. v. Sawyer,28 a famous separation of powers case.

The OLC had not cited Youngstown in 2002 because earlier OLC opinions, reaching across several administrations, had concluded that the case did not apply to the President’s conduct of foreign affairs and national security. Youngstown reached the separation of powers outcome because the Constitution clearly gives Congress the exclusive power to regulate the economy.29 But Youngstown does not address the scope of the commander-in-chief power where strategy or tactics in war are involved, and even supports the proposition that one branch may not intrude on the clear constitutional turf of another. Justice Jackson recognized that, even at its lowest ebb, the inherent powers of the President would prevail if “he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”30 Detention and interrogation policy in war are not a matter of Congress’s domestic powers but of the President’s commander-in-chief power to wage war. All administrations similarly have refused to acknowledge the legality of the War Powers Resolution, and have started military conflicts without congressional approval.

In 1994, Janet Reno’s OLC (then headed by Duke law professor Walter Dellinger) opined that the President could “decline to enforce a statute that he views as unconstitutional.”31 This is especially true, Dellinger observed, “of provisions limiting the President’s authority as commander-in-chief.” The Reno OLC later found unconstitutional a congressional effort to prohibit American troops from serving under foreign or international commands as an infringement of the President’s power over war and the military.32 Dellinger’s opinion cited Youngstown only once—in support of the proposition that the President has the right to refuse to execute a law. Far from inventing some novel interpretation of

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