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Executive Power: Teaching Through Current Events
by Andrew Rudalevige
Dickinson College
Carlisle, Pennsylvania
Introduction
Early in 2007, with his approval ratings in the doldrums and a new opposition majority in Congress loudly decrying his
every move, President George W. Bush began to issue executive orders reshaping various aspects of policy
implementation. One such order broadened the regulatory review powers of the president's Office of Management and
Budget and gave political appointees in each executive agency the ability to stifle the creation of new rules interpreting
the oft-vague language of federal statutes. Another order set into motion military tribunals for "enemy combatants"
detained at the U.S. military facility in Guantanamo Bay, Cuba. At the same time the administration shrugged off a
resolution passed by the House of Representatives disapproving of the president's recently announced increase in the
number of American troops in Iraq. The president's power as commander-in-chief, it argued, meant that Congress had
few tools for affecting the course of a war in progress.
Such use of executive power had been a hallmark of the Bush administration. Indeed, on January 9, 2006, a Newsweek
cover story asked, "How Much Power Should They Have?" over a photo of President Bush and Vice President Dick
Cheney. The question arose from holiday season revelations in late 2005 and early 2006 concerning the
administration's aggressive claims to -- and use of -- unilateral powers. Among other issues, suspected terrorists (or
sometimes others mistaken for suspected terrorists) had been detained around the world, and the administration
argued that Congress could not pass legislation governing their treatment. At home, phone taps had been placed on
Americans without first seeking a court warrant. The vice president insisted this was both proper and beneficial: ". . .
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we've been able to restore the legitimate authority of the presidency," he said.1 Others were less sanguine. They argued
the administration's actions unbalanced the institutional checks of the U.S. Constitution -- and that the "imperial
presidency" of the Vietnam/Watergate era had risen from the grave.2
The Presidency in Article II and in History
The debate, while salient and timely, was hardly new. Indeed, little at the Constitutional Convention of 1787 provoked
more debate than the shape and scope of the executive branch. Some of the framers were unconvinced of the need for
an executive branch in the first place. Others argued for a strict division of executive power to impede future tyranny.3
These ongoing events thus serve as an excellent entrée to the discussion of both contemporary politics and longstanding debates in American constitutional history. How powerful is the president, vis-à-vis the other branches? And,
crucially, how powerful should that person be?
The presidency, as defined in Article II, is given a limited array of specified powers, many of them limited further by a sort
of Congressional asterisk such as that which requires senatorial confirmation of appointees or legislative declaration of
war. But like much of the Constitution, the terms and powers of Article II were left vague. "The executive power shall be
vested in a President of the United States of America," the article begins. But what is the executive power? What might it
allow the president to do? Here the document is silent. The answer has been forged instead by history, worked out in
practice through interbranch contestation (recall James Madison's belief in Federalist number 51 -- that institutional
"ambition… [would] counteract ambition." Much of American government is premised on this battle of ambitions.)
Over time, strong presidents -- from Andrew Jackson to Abraham Lincoln to Franklin Roosevelt -- pushed against the
boundaries of their power. Where Congress did not push back, presidential authority grew. By the time of the "modern
presidency," born of the growth of government during the Great Depression and World War II, the new reach of the
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broadcast media, and the global role of the United States, presidents had greatly expanded upon their original role.
Even "weak" presidents gained a solid base of authority grounded in their ability to set the public agenda, the
commander-in-chief power, their veto leverage, and their authority to implement policy through appointments, executive
orders, and centralized management of departmental actions (for example, through the White House review of
proposed regulations). Even after Watergate spawned an array of statutes designed to enhance the legislative role in
budgeting, war powers, and administrative enforcement, George W. Bush's predecessors used those tools -- and
Congress's consistent unwillingness to enforce the strictures it had enacted -- to rebuild the "imperial" infrastructure.
The World After September 11
Before the terrorist attacks of September 11, 2001, but especially after, President Bush has enthusiastically abetted the
effort to build (he would argue, rebuild) presidential power. "I have an obligation to make sure that the Presidency
remains robust and the Legislative Branch doesn't end up running the Executive Branch,"4 Bush noted in a March 2002
press conference. After the attacks, of course, Congress itself moved quickly to expand the president's authority: for
instance, through the September 2001 Authorization for the Use of Military Force (AUMF), the October 2002 delegation of
authority to use force against Iraq, and the USA Patriot Act. But the president, claiming the powers of a "unitary
executive," also made strong claims about the ability of his office to act unilaterally and about the inability of others to
check those actions or even gain information about how they had been carried out.5
One example came to light in late 2005. In October 2001, President Bush secretly ordered the National Security Agency
(NSA) to track communications between Americans within the United States and individuals abroad thought to be
connected to terrorism. However, the Foreign Intelligence Surveillance Act (FISA) had been passed in 1978 to regulate
the process by which such intelligence was gathered. FISA was a direct response to a series of abuses by American
intelligence and law enforcement agencies that was revealed in the mid-1970s. The act provided that this sort of
surveillance required a warrant from a special court. There were exceptions: FISA allowed for warrantless wiretapping
for 15 days after the declaration of war, and for short-term emergency taps (of up to three days) before a warrant needed
to be obtained. But the post-September 11 program, at least as described in the press, did not seem to meet these
criteria.
However, the president argued both that he had inherent power to order such wiretaps and that Congress had
specifically authorized it in statute anyway (see, for example, the president's December 19, 2005, news conference).
Soon afterward the Department of Justice (DOJ) produced a 42-page white paper defending the NSA program along
these two lines. First, the DOJ claimed that "the NSA activities are supported by the President's well-recognized inherent
constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless
surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States."
Second, rather than violating FISA, the president was simply utilizing the statutory authority he had been granted by the
September 14, 2001, congressional resolution authorizing military force against those responsible for the 9/11 attacks.
The Authorization for the Use of Military Force (AUMF) resolution, administration attorneys argued, should be read as
direct approval for wiretapping without obtaining a warrant, because wiretapping was a "fundamental incident" of
warfare -- and thus in the same category as the detention of "enemy combatants," as approved by the Supreme Court's
2004 decision in Hamdi v. Rumsfeld (542 U.S. 507). But, coming back to the first argument, even if the AUMF or FISA
were read differently, neither statute nor new congressional action could limit the president's "core exercise of
Commander in Chief control"; trying to do this was, simply put, unconstitutional.6
The DOJ document summarizes important touchstones for presidential power throughout American history. The
designation of the president as "sole organ" of the nation for foreign policy is taken from language in the Supreme
Court's 1936 decision in U.S. v. Curtiss-Wright (299 U.S. 304), which to presidents' delight suggested the chief executive
had "plenary and exclusive" power over international affairs. The notion that the executive power is both indivisible and
separable from the overlapping powers of other branches (for example, that the commander-in-chief power is distinct
from Congress's powers to declare war, to provide for the armed forces, and to "make rules concerning captures")7 is
driven by a strong version of the "unitary executive" theory noted above. According to proponents of this theory, the
vesting clause of Article II (again, giving presidents "the executive power") implies not only that Congress cannot
exercise executive powers (since this would infringe on presidential power) but also, more controversially, that the last
word on the definition of that executive power is given to the president alone. The DOJ white paper, for instance,
frequently cites as its constitutional authority the DOJ's own Office of Legal Counsel. The brief assured its readers that
the surveillance decisions were being made on a "reasonable basis" (even one equivalent to the FISA warrant
requirements) -- but what "reasonable" entailed was a matter entirely within the executive branch. Claiming the need for
secrecy, the administration also declined to reveal why it thought the FISA process would not work to defend national
security and resisted legislative attempts to gain some sort of judicial review of the NSA program.
Defining Wartime Powers
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A similar unilateral logic governed the administration's treatment of prisoners captured during various antiterror
operations and the Iraq war. Does the commander-in-chief power give the president the right to name "enemy
combatants," even American citizens, who can be excluded from the civilian court system and held without charge,
indefinitely? Does it allow for the creation of military tribunals? Even more controversially, does it allow the president to
set aside laws and treaties governing the treatment of detainees, whether in military custody or in so-called "black sites"
run secretly by the CIA around the world? Does it allow for "rendition," that is, the sending of prisoners to countries less
encumbered by due process than the United States?8
When pushed on these subjects, the administration has argued that "in order to respect the President's inherent
constitutional authority to manage a military campaign, 18 U.S.C. § 2340A [the prohibition against torture] as well as any
other potentially applicable statute must be construed as inapplicable to interrogations undertaken pursuant to his
Commander-in-Chief authority."9 When in late 2005 legislators approved the so-called McCain Amendment imposing a
blanket ban on torture -- indeed, on "cruel, inhuman, or degrading treatment" -- by American personnel, the president
signed it into law. But at the same time, in a separate signing statement, President Bush said he would implement the
provision "in a manner consistent with the constitutional authority of the President to supervise the unitary executive
branch and as Commander in Chief."10 That is, he would decide how (and, arguably, when) to apply the ban, and what
particular actions were included in "cruel, inhuman, or degrading" treatment. George W. Bush has used this sort of
signing statement more than all his predecessors combined, not only privileging the commander-in-chief power but
also setting aside scores of other requirements imposed by Congress -- that the administration report to legislators on
certain issues, for example, or that appointees (such as at the Federal Emergency Management Agency, in light of its
performance after Hurricane Katrina) have certain qualifications.11 The message is consistent: the president alone can
determine the limits of his power, and the limits of the law itself.
Judging Presidential Power
Can these claims be sustained? In our system, strong presidential leadership is essential -- but if unchecked and
undebated it can also do damage to the very notion of self-governance. Supreme Court Justice Robert Jackson, in his
1952 opinion in the famous Youngstown steel seizure case, put it nicely: "comprehensive and undefined presidential
powers hold both practical advantages and grave dangers for the country." Teachers could ask their students: What are
the practical advantages? What dangers might arise?
By extension, what is the proper role of Congress? Can one be "unitarian," if the Constitution is so devoutly trinitarian?
But if not, how carefully should legislators oversee the exercise of executive authority -- what is the proper balance
between diligent oversight and micromanagement? What tools (such as constitutional, statutory, or budgetary) do
legislators have to assert their preferences over presidential behavior? How aggressively should they use them in the
war on terror? For President Bush's first six years in office, Congress was frequently deferential to executive claims;
indeed, the Supreme Court's Hamdan decision in 2006, setting aside the president's original system of military
tribunals, was followed by the Military Commissions Act, which gave the president most of the power he had previously
claimed unilaterally and, arguably, expanded the president's power to designate even American citizens as "enemy
combatants" outside the criminal justice system. But following the November 2006 midterm elections, Democrats
returned to majority status in both House and Senate for the first time since 1994. They promised much greater
oversight of executive power, potentially setting the stage for constitutional clashes with the president over information
and policy implementation. (Indeed, a Bush adviser predicted "a cataclysmic fight to the death" between Congress and
the White House over executive privilege, if the new majority demanded unfettered access to administration
documents.)12
The conflicts over presidential power continue to evolve. In early 2007, for example, the administration announced that
the FISA court had approved the NSA program. But they gave few details, and various suits against the program in other
courts continued. Such cases may help determine whether this sort of surveillance is part of the president's inherent
powers in wartime and whether Congress can regulate it.
Likewise, the debate over President Bush's "surge" proposal in Iraq, announced in January 2007, is an argument over
the boundaries of regulation. What can Congress do to influence the conduct of a war that it approved (or did not, for that
matter)? The Bush administration, and even some members of Congress, conceded that legislators could cut off
funding for the war but could do little else. Others argued that Congress should repeal the 2002 resolution authorizing
the Iraq war and set conditions requiring troop withdrawal.
Conclusion
AP United States Government and Politics students might join this ongoing discussion, not in a partisan debate or as a
question of public policy (what is the right policy for Iraq -- or, for that matter, Iran?) but as a constitutional dilemma. What
are the limits of legislative and executive power? When must executive imperialism be checked? And, on the other hand,
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when does oversight turn to micromanagement? Current events, and the swiftly approaching 2008 campaign, will
provide much fodder for these important discussions.
Online Documents and Other Web Resources
Listed in chronological order:
The Federalist No. 51
(James Madison, 1788)
Oyez: U.S. Supreme Court Media -- United States v. Curtiss-Wright Export Corp. [1936]
Cornell Law School, Legal Information Institute: Youngstown Sheet & Tube Co. v. Sawyer [1952]
The White House: Executive Orders Issued by President George W. Bush
(Covers orders issued from January 29, 2001, to the present)
FindLaw : Authorization for the Use of Military Force, September 18, 2001 (Public Law 107-40)
The White House: President Issues Military Order
(November 13, 2001)
Oyez: U.S. Supreme Court Media -- Hamdi v. Rumsfeld [2004]
CRS Report for Congress: Detention of American Citizens as Enemy Combatants (.pdf/270KB)
(Congressional Research Service, March 14, 2004)
The White House: Press Conference of the President
(December 19, 2005)
The White House: Vice President's Remarks to the Traveling Press
(December 20, 2005)
McCain Amendment to 2006 Department of Defense Appropriations Bill
The White House: President's Statement on Signing of H.R. 2863, The "Department of Defense Emergency Supplemental
Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006"
(President's signing statement regarding the McCain Amendment, December 30, 2005)
FindLaw -- The Congressional Research Service and Constitutional Law Scholars Weigh in on President Bush's Authorization of
Warrantless Surveillance
(Elaine Cassel's discussion of the Foreign Intelligence Surveillance Act, January 12, 2006)
FindLaw : U.S. Department of Justice -- Legal Authorities Supporting the Activities of the National Security Agency Described by the
President (.pdf/261KB)
(Department of Justice white paper on NSA surveillance, January 19, 2006)
Oyez: U.S. Supreme Court Media -- Hamdan v. Rumsfeld [2006]
The White House: President Bush Signs Military Commissions Act of 2006
(The Military Commissions Act of 2006: White House view, October 17, 2006)
ACLU: President Bush Signs Un-American Military Commissions Act, ACLU Says New Law Undermines Due Process and the Rule of
Law
(The Military Commissions Act of 2006: Opponents' view, October 17, 2006)
Open Source w ith Christopher Lydon: Micromanaging vs. Oversight (January 8, 2007)
(Legislative powers in wartime)
Notes
1. Vice President Richard Cheney, Air Force Two, December 20, 2005, transcript:
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The White House: Vice President's Remarks to the Traveling Press
2. Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973); Andrew Rudalevige, The New
Imperial Presidency: Renewing Presidential Power After Watergate (Ann Arbor, Michigan: University of Michigan Press,
2005).
3. See, for example, Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York:
Knopf, 1996), chapter 9.
4. President George W. Bush, the White House, March 13, 2002, transcript:
The White House: President Bush Holds Press Conference
5. For a useful summary of the "unitary executive," see Jess Bravin, "Judge Alito's View of the Presidency: Expansive
Powers," Wall Street Journal, January 5, 2006, 1.
6. U.S. Department of Justice, January 19, 2006:
FindLaw : U.S. Department of Justice -- Legal Authorities Supporting the Activities of the National Security Agency Described by
the President (.pdf/261KB)
7. See, for example, Article I's designation of Congress's authority to regulate the "land and naval forces," "captures on
land or water," the militia, and "letters of marque and reprisal" (that is, to hire private contractors to carry out warfare).
8. For claims (and documentation) of detainee mistreatment, see Karen Greenberg and Joshua Dratel, eds., The
Torture Papers: The Road to Ab u Ghraib (Cambridge, United Kingdom: Cambridge University Press, 2005).
9. See U.S. Department of Defense, "Working Group Report on Detainee Interrogations in the Global War on Terrorism:
Assessment of Legal, Historical, Policy, and Operational Considerations" (April 4, 2003), 21, and Greenberg and Dratel,
The Torture Papers, section 3.
10. President George W. Bush, the White House, December 30, 2005:
The White House: President's Statement on Signing of H.R. 2863, The "Department of Defense Emergency Supplemental
Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006"
11. While one can find isolated examples of the practice as early as the Jackson administration, it was Ronald Reagan
who advanced the signing statement as a more systematic strategy aimed both to put the president's point of view in the
"legislative history" (should the judiciary weigh in) and to better control executive branch behavior. Reagan's successors
have all used the tool, but none as aggressively as George W. Bush, who made more than 500 constitutional objections
to legislation during his first term (by contrast, Bill Clinton made 105, over eight years). See Phillip J. Cooper, "George
W. Bush, Edgar Allan Poe, and the Use of Abuse of Presidential Signing Statements," Presidential Studies Quarterly 35
(September 2005): 515-32; Ron Hutcheson and James Kuhnhenn, "Bush Asserts Power over Laws," Philadelphia
Inquirer, January 16, 2006, A1; and Elizabeth Bumiller, "For President, Final Say on a Bill Sometimes Comes After the
Signing," New York Times, January 16, 2006, A11.
12. Karen Tumulty and Mike Allen, "Bush's Lonely Election Season," Time, October 29, 2006.
Andrew Rudalevige is associate professor of political science at Dickinson College; he is a graduate of the University of
Chicago and Harvard University, where he earned his Ph.D. He is the author, most recently, of The New Imperial
Presidency: Renewing Presidential Power After Watergate(University of Michigan Press, 2005), and he coedited The
George W. Bush Legacy(an anthology forthcoming in July 2007 from CQ Press).
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