Dellapenna on Presidential Authority and the War on Terror

Joseph W. Dellapenna, Villanova University School of Law, has posted an article, Presidential Authority and the War on Terror. It appeared in the ILSA Journal of International Law and Comparative Law. Here's the abstract:

Immediately after the attacks on the United States of September 11, 2001, President George W. Bush claimed, among other powers, the power to launch preemptive wars on his own authority; the power to disregard the laws of war pertaining to occupied lands; the power to define the status and treatment of persons detained as "enemy combatants" in the war on terror; and the power to authorize the National Security Agency to undertake electronic surveillance in violation of the Foreign Intelligence Surveillance Act. With the exception of the power to launch a preemptive war on his own authority (for which he sought and obtained authorization to use military force from the Congress), he subsequently implemented these claims of power. These were the first steps of an expansive set of claims for the President to act on his own authority during the "war on terror" without regard to whether Congress or the courts would approve or support these decisions. These claims were not an accident. Vice-President Cheney stated publicly, more than once, that these steps were part of a plan to restore the Presidency to "the proper scope" of its powers even more than means to defend the nation. Lawyers in the Office of Legal Counsel of the Department Justice went out of their way to claim unilateral authority for the President when the claims were unnecessary for the specific policies for which they were invoked. This pattern suggests a goal of aggrandizing Presidential authority beyond defense of the nation, ignoring that the President's duty is to enforce the law, not to break it.

Questions of Presidential authority are important. The framers of the Constitution expected the separation of powers to be the primary protection for liberty. They therefore structured each branch of government's power in ways that allow each to block the others. The framers expected the three branches to contend with each other, and in contending to prevent any single branch from dominating. The framers were prescient - the three branches have contended with each other in shifting balances throughout our history. Yet the recent Presidential claims of unilateral authority in effect would smother the other two branches. Thus far, these claims have been rejected by the Supreme Court, and arguably now by the electorate. But the struggle is not over. Governance during the next two years, and possibly the next presidential election, will turn on these issues.

This article considers whether the claims of unilateral Presidential authority can be sustained in light of constitutional text and tradition, examining the leading instances of legal and political debate regarding the exercise of the relevant powers conferred on the President by the Constitution - primarily the power to command to military, the power to conduct foreign relations, and the power to direct the executive officers of the nation.