Advising the president: the growing scope of executive power to protect America.

• Author: Gonzales, Alberto R.
• Position: I. Frameworks of Presidential Authority C. Inherent Authority of the Executive Branch through IV. Conclusion, with footnotes, p. 477-507

3. Inherent Authority of the Executive Branch

   Much of the debate over the exercise of executive power in the national security context arises in those circumstances where the President arguably has neither express constitutional nor express congressional authority. In these situations, presidents have relied upon an inherent or implied authority under the Constitution, emanating from their Commander in Chief power to protect and defend America. (127)

   As the Supreme Court has recognized, the President is considered the "sole organ" of the United States in foreign affairs. (128) The Court held in United States v. Curtiss-Wright Export Corp. that the President is uniquely positioned to act decisively and quickly in the field of international relations and especially in times of war, given the delicate nature of intelligence and negotiations with foreign sovereigns. (129)

   Although the Constitution says relatively little about the national security powers of the executive, I am unaware of any serious widespread disagreement that the President has some inherent authority. However, there is serious disagreement as to the scope of that authority. (130) Unfortunately, the courts have been inconsistent in the development and application of a framework to help resolve the question. (131) From my study of history, the default position throughout American history appears to be that the President has inherent power do what he needs to do to protect our country, subject to examination after the fact by Congress, the media, historians, and the American people. The President's inherent authority to take action appears to be even more widely accepted when such action is against non-citizens outside the boundaries of the United States. Given the growing magnitude of today's threats, I believe this default position will remain true as we move into the future.

   One constitutional scholar has written that the scope of the President's inherent power can be traced along a spectrum. (132) At one end of the spectrum are advocates such as James Madison who argue there is no inherent power; presidential authority must come expressly from the Congress or the Constitution. (133) On the opposite end of the spectrum are others, such as Alexander Hamilton, who believe in the existence, even necessity, of broad inherent executive power, limited only by express constitutional prohibitions. (134) In my experience, the realities and practicalities of national security make both of these positions unworkable and potentially dangerous. The President's inherent power must exist somewhere between these two extremes.

   One possible framework advocated to avoid these disputes would allow the President to act without an explicit congressional or constitutional grant of authority so long as he does not infringe upon the institutional prerogatives of another branch. (135) Alternatively, another possible framework is that the President may act so long as he is not expressly prohibited by the Constitution or Congress. (136) Under this framework, it is immaterial whether the authority of another branch of government is usurped. (137)

   As between these two frameworks, the latter provides an insufficient check during those times when Congress is divided and nothing can be passed into law because of political wrangling. Consequently, the appropriate framework to judge the President's inherent power is one where the President may take action in the field of national security and foreign affairs so long as in doing so he does not usurp the prerogatives of another branch of government.

   1. Bush Actions on September 11

      For the purpose of illustrating the exercise of inherent power, it may be helpful to examine President Bush's actions immediately following the attacks on September 11, 2001. The 9/11 Commission (created after the fact by Congress as a congressional commission) reported that the President and other agencies under his control immediately took the following actions: military planes scrambled to find hijacked planes; all planes grounded at 9:25 AM (EST); decision to shoot down aircraft at 10:25 AM (EST); and Defense Department raised defense level to Def.-Con 3. (138)

      In the following days, the President and his cabinet discussed measures to protect the country from further attacks and made plans for war against those responsible for the at tacks, including A1 Qaeda and the Taliban. (139) Military jets patrolled the air space over New York City and Washington, D.C. Additionally, the Department of Justice requested that the Immigration & Naturalization Service (INS) begin arresting individuals of "special interest" for immigration violations, and delaying their hearings or denying release bonds. (140)

      The President, as the Commander in Chief of the armed forces, is authorized to act in defense of the country. No one can legitimately deny that the nation was under attack on September 11. As such, the President was authorized by the Constitution to take action. The 9/11 Commission found that there were already military protocols to follow in case of hijacked aircraft, including the scrambling of military planes to "intercept" the hijacked planes. (141) Further, raising the defense level to Def.-Con 3 occurred without the need for congressional approval, as it is for the President to decide the instrumentalities and operations of the armed forces. (142)

      However, the decision to ground all commercial aircraft, as well as the shoot-down order of commercial aircraft judged to be hijacked and a threat, were unprecedented. The President can undoubtedly direct the military, but directing private aircraft with civilian passengers and possibly shooting them down is a different matter. Nevertheless, the Constitution granted the President the authority to do so in his role as Commander in Chief. Although it is not explicitly stated in the constitutional text, this authority lies in the penumbra of the responsibility placed upon him by the Constitution to control the operations of the military.

      The President is tasked to protect the country. When an enemy turns an instrument of the private sector, such as a commercial aircraft, into an instrumentality of war, the President may take control of this sector as necessary to reduce the threat. Therefore, directing the grounding of all commercial aircraft is within the scope of his authority. After all, a significant segment of commercial aviation is already heavily regulated by the Federal Aviation Agency. (143)

      Directing that the military may forcibly shoot down commercial airliners judged to be a threat to civilian lives on the ground also falls within the penumbra of the President's constitutional authority. This action is a judgment call that is best left to the President. As numerous cases support, (144) the knowledge of the executive branch places the President in the best position to make decisions that are time sensitive.

      The executive branch has access to information that is not readily available to Congress, and Congress would not have been capable of convening quickly during a large national crisis. The President, with the consultation of his advisors, is in the best position to make such a decision in the time required, and it is within his authority to do so.

      President Bush acted on his express and implied authority under the Constitution in the immediate aftermath of September 11. His actions were subsequently examined by the 9/11 Commission acting on behalf of Congress and the American people. Thus, our nation benefited from the flexibility available to the President to effectively respond to threats, subject to accountability to Congress for any abuses of power.

   2. Executive Actions for Enemy Combatants

      As discussed above, the 2001 AUMF is a recent example of statutory approval by Congress allowing expansive presidential authority during wartime. In the years since passage of the 2001 AUMF, there has been much debate over whether it authorized the executive to detain enemy combatants, engage in electronic surveillance of the enemy, and employ military commissions to try these combatants. Several U.S. Supreme Court decisions hint at the scope of authority of the Commander in Chief. Two of these cases are Hamdi v. Rumsfeld (145) and Hamdan v. Rumsfeld. (146)

      In Hamdi, the court addressed whether the judiciary must defer to the executive's determination that a U.S. citizen is an enemy combatant. The Court stated that the judiciary does not have to defer to the executive's decision to designate an individual as an enemy combatant, but instead should act as a check against the executive in this situation. (147) The Supreme Court's decision in Hamdan concerned whether the Bush Administration could set up military commissions to try detainees at Guantanamo Bay without congressional authorization. The Court held 5-3 that the Administration was not authorized to set up the military commissions without congressional authorization because doing so would violate existing congressional statutes. (148) Thus the President would need congressional per mission in order to proceed. (149) Whether the Court would uphold presidential action over a conflicting congressional statute in a situation where the powers allotted to Congress are less defined remains unanswered.

      In a time of emergency or when facing a threat, the President has a number of options in the presence of a conflicting congressional statute. First, he can choose to do nothing and suffer the consequences of such inaction. Second, he can go to Congress and try to get some type of congressional authorization resolution, or approval to act in spite of the conflicting statute. Finally, the President can rely on his own constitutional authority and be willing to suffer the legal and political consequences, including impeachment and losses by him and his political party in future elections. Since I believe the American people are better off when the elected...