Presidential Powers by Harold J. Krent

Author:Harold J. Krent
Language: eng
Format: epub
Publisher: New York University Press
Published: 2005-12-14T16:00:00+00:00

Under 10 U.S.C. 332, Congress gave the president the power to stop obstructions or rebellions against the authority of the United States.32 Under the companion provision, 333, Congress recognized that, in an emergency, it could direct the president to suppress an insurrection, domestic violence, or conspiracy, which hinders the execution of the laws of the United States and where the state refuses, is unwilling, or fails to act.33 Certainly, the argument can be made that Congress implicitly gave the president the power to enforce school desegregation in an appropriate context with military forces.34 But the terms of the Posse Comitatus statute require express authorization. If Section 333 is read broadly, the Posse Comitatus statute would become a nullity. In any event, the attorney general opinion recognized a distinct constitutional source for the president’s intervention.

President Eisenhower seized the initiative to send troops without first receiving Congress’s blessing. As a matter of politics, Eisenhower’s decision was exemplary. But as a matter of constitutional law, Eisenhower’s decision—like that of Lincoln’s—perhaps showed insufficient regard for Congress’s role in determining the measures to be used in an emergency. Presidential initiative cannot readily be accommodated with the constitutional imperative of accountability to Congress, but as a political matter, President Eisenhower’s decision seems warranted.

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