Constitutional Myth #3: The 'Unitary Executive' is a Dictator in War and Peace

The idea that the President's powers aren't limited by Congress is a radical--and dangerous--trendEpps_Myth3_6-09_banner.jpgFew parts of our Constitution generate more mythology than Article Two, which creates the office of the President.

The Constitution grants the president the following exclusive powers: (1) he is commander in chief of the armed forces; (2) he can require "heads of departments" to give him their opinions in writing; (3) he receives ambassadors, and; (4) he grants pardons for federal offenses. In addition, he shares with the Senate the treaty power and the appointment authority ("advise and consent"), and can make "recess appointments" if Congress is not in session. He can veto a bill, subject to override by 2/3 of both Houses. He can convene Congress on "extraordinary occasions," but ordinarily may not force it to adjourn. He is required to send a state of the union message "from time to time," and he shall "take care that the laws be faithfully executed."

It's not an overwhelming list. But on this vague framework, executive theorists have constructed a view of the office that is sometimes little short of dictatorship. That constitutional myth affects presidents of both parties and their supporters.

Consider that, in the days after 9/11, Congress authorized President Bush to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." That may be the broadest such resolution ever passed.

The current theory is far more radical, and it is dangerous, no matter which party holds the White House. In any crisis, it allows power to flow to the President; as crisis recedes, future Presidents tend not to give it back.

Yet immediately after passage, Bush's in-house lawyer, John Yoo, wrote the president an official memo stating that Bush didn't need the authorization. "The historical record demonstrates that the power to initiate military hostilities, particularly in response to the threat of an armed attack, rests exclusively with the President." Yoo argued, "Congress's support for the President's power suggests no limits on the Executive's judgment whether to use military force in response to the national emergency."

Yoo was deploying a theory of executive power best summed up by his phrase: "no limits on the Executive's judgment." George W. Bush was later to rely on that theory to justify warrantless eavesdropping on American citizens' phone calls and emails, despite a statute banning the practice, and to override the Detainee Treatment Act of 2005, with its absolute prohibition on "cruel, inhuman, or degrading treatment or punishment" " of prisoners.

Executive hubris is not limited by party. Bill Clinton (Kosovo 1998) and Barack Obama (Libya 2011) have also asserted presidential power to use armed force without congressional consent. Boston College professor Kent Greenfield recently laid out the astonishing facts of the Obama administration's decision to ignore the War Powers Resolution.

The authoritarian theory of the presidency draws its justification from the opening words of Article II: "The executive power shall be vested in a President of the United States of America." Executive hawks argue that the phrase "the executive power" and "a President of the United States of America" lodge extensive, exclusive power in the president alone.

During America's first major foreign policy crisis, Treasury Secretary Alexander Hamilton argued that the phrase "the executive power" meant that all the power of any chief of state was lodged in the president, "subject only to the exceptions the exceptions and qualifications which are expressed" in the Constitution.

In other words, unless the Constitution says the president can't do something, the president can do it. That argument underwent a fundamental shift after 1980. Reagan and his attorney general, Ed Meese, regarded the Democratic-majority Congress as the enemy. They needed a theory that would let them act at home and abroad without congressional authorization, withhold information from Congress at their pleasure, and resist any attempt by Congress to find out what was going on or limit their freedom of maneuver. To Hamilton's already radical view of the executive power, they added the "unitary executive" idea.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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