Executive or imperial branch?
By Ivan Eland
Online Journal Guest Writer
May 8, 2008, 00:08
More memos recently have surfaced that were written early in
the Bush administration by John C. Yoo from the Justice Department's Office of
Legal Counsel -- the man who gave us the administration's horrifyingly narrow
definition of torture. As difficult as it is to believe, the recently released
memos are even scarier than the original torture memo.
Yoo boldly asserts that the president's power during wartime
is nearly unlimited. For example, he argues that Congress has no right to pass
laws governing the interrogations of enemy combatants and the
commander-in-chief can ignore such laws if passed, and can, without constraint,
seize oceangoing ships.
The memos also argue that military operations in the United
States against terrorists are not subject to the Fourth Amendment requirement
for search warrants or the Fifth Amendment requirement for due process.
This broad interpretation of executive power and the
president's commander-in-chief role would make the nation's founders jump out
of their graves. Purposefully, the Constitutional Convention enumerated the
large number of Congress's powers in Article I, and gave most powers related to
defense and foreign affairs to the people's branch.
In particular, the war power was given to Congress. The
chief executive, whose powers were enumerated in the much more brief Article
II, was given the commander-in-chief role, but this was intended narrowly, only
as commander of U.S. troops on the battlefield.
Instead of declaring war, which has fallen out of fashion,
the Congress, after 9/11, passed a resolution authorizing the president to go
after al-Qaida overseas but deliberately omitted domestic activities from that
Democrats and Republicans alike declared that they were not
endorsing a broad expansion of the president's authority as commander-in-chief.
An important example from the nation's infancy shows how
narrowly the founders regarded the president's role as commander-in-chief.
During the Quasi-War with France in the last years of the 1700s, Congress
authorized President John Adams to seize armed ships sailing to French ports.
Adams exceeded the congressional authorization by ordering the seizure of
vessels sailing to or from French ports. The Supreme Court, in the case Little
v. Barreme, ruled that Adams had exceeded the authority Congress had delegated
to him. So much for Bush's supposed intrinsic authority to seize all oceangoing
ships without congressional authorization.
In 1952, President Truman, the first imperial president,
seized the steel mills under his alleged "inherent power" as
commander in chief -- supposedly to prevent paralysis of the national economy
and using the rationale that soldiers in the Korean War needed weapons and
By a wide margin, in the case Youngstown Sheet & Tube
Co. v. Sawyer, the Supreme Court struck down Truman's executive order to seize
the mills because it had no statutory or constitutional basis. Essentially, the
court ruled that the president may be commander-in-chief of the armed forces
but not the country.
Yoo's assertion that Congress has no right to pass laws that
impinge on the president's claim to a broad interpretation of his role as
commander-in-chief violates the core of the constitutional system of checks and
balances, and for which the United States regularly criticizes despots in
Finally, the Fourth Amendment (requiring warrants for any
search) and the Fifth Amendment (the right to due legal process) contain no
exceptions for wartime. In fact, in a republic -- where the rule of law should
be king -- crises and wartime are exactly when people's rights are most likely
to be endangered and when safeguards are especially needed.
Even more tragic and dangerous than the quagmires of Iraq
and Afghanistan have been President Bush's usurping of power from the other two
branches of government and the creation of the "hyperimperial"
Eland is Director of the Center
on Peace & Liberty at The Independent Institute and Assistant Editor of
The Independent Review.
Dr. Eland is a graduate of Iowa State University and received an M.B.A. in
applied economics and Ph.D. in national security policy from George Washington
University. He has been Director of Defense Policy Studies at the Cato
Institute, Principal Defense Analyst at the Congressional Budget Office,
Evaluator-in-Charge (national security and intelligence) for the U.S. General
Accounting Office, and Investigator for the House Foreign Affairs Committee and
Principal Defense Analyst at the Congressional Budget Office. He is author of
the books, The Empire
Has No Clothes: U.S. Foreign Policy Exposed, and Putting �Defense�
Back into U.S. Defense Policy.
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