Inherent executive power: a comparative perspective.

• Author: Martinez, Jenny S.
• Position: Symposium on Executive Power

ESSAY CONTENTS INTRODUCTION I. THE INHERENT EXECUTIVE POWER THESIS: "WHEN THE PRESIDENT DOES IT, THAT MEANS THAT IT IS NOT ILLEGAL" II. INHERENT EXECUTIVE POWER IN COMPARATIVE PERSPECTIVE A. Structuring the Executive Branch: Evolution and Revolution B. The Fallacy of Executive Power Essentialism: War, Emergencies, and Foreign Affairs 1. War Powers 2. Emergency Powers 3. Treaty Powers C. The Inherently Expansive Character of Executive Power CONCLUSION INTRODUCTION

Does the executive possess inherent emergency powers related to foreign affairs and national security? Are there circumstances in which the executive can act on its own initiative, without support from legislation? When, if ever, can the executive act in direct contravention to the will of the legislature?

Today's most important constitutional and policy debates center on precisely these questions. Some have recently argued that the U.S. President has broad, independent powers in matters related to foreign affairs and national security. (1) In addition to their theoretical importance, these arguments have immediate practical significance for real world cases and situations. For example, can the executive order the military to torture in violation of legislative enactments? (2) Order warrantless wiretaps, circumventing procedures set up by Congress? (3) Seize and detain terrorists without trial or subject them to military commission trials, in the absence of specific legislative authorization? (4) Determine unilaterally whether persons in U.S. custody have rights under international treaties? (5)

Although the topic of inherent executive power is particularly salient today, the nature of executive power has occupied American constitutional scholars for decades. Scholars have searched for answers in the parsimonious text of Article II and the history of the Founding period. (6) This Essay takes a different, more functional approach, examining conceptions of executive power in a handful of modern democracies: the United Kingdom, Germany, France, Mexico, and South Korea. These comparative examples suggest that there is nothing inherent or fixed about the scope of executive power; instead, executive power is highly contingent, shaped by political context and the path-dependent evolution of particular legal systems.

The countries discussed in this Essay have been selected because they start from a range of basic institutional structures--from parliamentary British and German systems, to the semi-presidential French system, to the presidential Mexican and South Korean systems. The ages of their current structures vary--with the long-established Westminster system contrasting with the post-War constitutions of Germany and France and the still-evolving Korean and Mexican systems. They also represent a spectrum of development, from fully industrialized, entrenched democracies to still-emergent, newer democracies.

The experiences of these other nations do not point in a single direction. In some ways, the scope of executive power has been broader in these countries than in the United States; in other ways it has been narrower. There are, however, a few commonalities. In all of these countries, as in the United States, the line between executive and legislative powers is fluid. Regardless of formal governmental structures, all have witnessed a tendency toward executive dominance of national politics. At the same time, all now formally recognize some limits on executive power. These limits preserve a liberty-protecting balance of political power with the legislature and the courts, even in matters touching on foreign affairs or national security. These examples thus provide a counterweight to recent arguments that executive power, by its very nature, requires unchecked authority to act independently in these areas. More fundamentally, they help refute the notion that the "executive Power" vested in the President by Article II of the U.S. Constitution has an abstract content that can be determined by reference to theoretical first principles. Instead, the experiences of these other countries reinforce the lesson of U.S. history that executive power is a malleable and evolving concept. (7)

1. THE INHERENT EXECUTIVE POWER THESIS: "WHEN THE PRESIDENT DOES IT, THAT MEANS THAT IT IS NOT ILLEGAL"

   While it is not the purpose of this Essay to fully explore the current domestic debate about inherent executive power, it is important to sketch the main arguments to show how the comparative examples that are the focus of this Essay enter and enhance that dialogue. Advocates of inherent executive power assert that the phrases "executive Power" (8) and "Commander-in-Chief" (9) in Article II of the U.S. Constitution encompass a particular bundle of powers that are inherently "executive" in nature, including power over matters related to foreign affairs, the military, and national security. (10)

   Modern scholars have advanced the inherent power theory in a variety of permutations. (11) Not surprisingly, the theory has also been popular with Presidents themselves, who have claimed authority to do whatever is necessary for the good of the nation. President Nixon, for example, asserted that when "the President does it, that means that it is not illegal." (12) President Lincoln put it more eloquently when he explained, "I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation." (13)

   The most recent executive branch defense of the inherent power theory emerged in a series of internal memos related to Bush Administration policies in the war on terror, including treatment of detainees, use of military force, and domestic wiretapping. The most infamous of the secret memos is the August 2002 "Torture Memo" signed by Assistant Attorney General Jay Bybee and reportedly written by John Yoo. (14) This memo considers the applicability of a federal statute criminalizing torture; (15) it is representative of the reasoning used in many of the documents justifying controversial anti-terror policies. (16) The memo contends that the Constitution "vests in the President an unenumerated 'executive power'" encompassing matters related to national security, (17) a power that may not be limited by Congress or the courts. (18) The memo concludes that the President can authorize torture, laws to the contrary notwithstanding.

   In terms of bread-and-butter domestic constitutional arguments, there are serious flaws in the inherent power thesis, particularly as articulated in the Bush Administration memos. The theory is inconsistent with the U.S. Constitution's textual allocation to Congress of substantial powers related to foreign affairs and the military. (19) It finds a supposed clarity in the original understanding of the phrase "executive Power" that is not supported by the historical record. (20) And it ignores two centuries' worth of judicial decisions skeptical of broad and unchecked inherent executive power. (21)

   The purpose of this Essay is not to thoroughly catalog the flaws of the Bush Administration's assertions of power, for those criticisms are now well known. (22) But recognizing the weakness of the inherent executive power thesis on conventional domestic constitutional grounds opens space for this Essay, which augments these criticisms with the perspective of comparative analysis. To the extent the inherent power thesis is not supported by constitutional text, originalism, or precedent, it devolves into an argument based on two possibilities: an essentialist argument based on political theory or practice and a prudential argument based on wise policy.

   These comparative examples help refute, first, the essentialist argument that executive power consists of a certain bundle of prerogatives that can be deduced from political theory or praxis. If there were a core set of powers that were intrinsically executive, one would expect to see at least some convergence in the allocation of these powers to executive officials in societies with democratic values comparable to our own. Instead, other modern democracies have gone in the exact opposite direction and require that powers over war, national security, and foreign affairs be shared with legislators and judges.

   Second, these examples cast doubt on the prudential argument that it is necessary or wise to grant the executive branch broad, unchecked power related to war, foreign affairs, and national security. Some of these foreign examples are cautionary tales of how executives can and will abuse power in the name of national security, and also of countries' attempts to entrench the rule of law by limiting executive power after periods of dictatorship.

   It is important to acknowledge the limits of these comparative examples. First, they are obviously not controlling in terms of the interpretation of the U.S. Constitution. However, to the extent that other methods of constitutional analysis, such as textualism and originalism, yield indeterminate results, comparative examples can provide valuable insight in choosing between different plausible interpretations of vague constitutional provisions. Despite "relevant political and structural differences" between foreign legal systems and our own, their "experience may ... cast an empirical light on the consequences of different solutions to a common legal problem." (23)

   Second, there are important legal, political, and social differences between the United States and the other countries examined in this Essay. Indeed, there are substantial differences among the other countries examined--from basic choices between presidential and parliamentary systems (24) to more nuanced differences such as the maturity of their democracies, their histories, and their social and economic conditions. The substantial differences between the countries, however, make even more striking the similar...