The New Imperial Presidency

The power of the Oval Office continues to grow
While the Constitution meticulously lays out the workings and duties of the legislative branch, the founding fathers’ commentary on the executive branch proved significantly more limited. The powers explicitly granted to the President are wholly contained within Article II, Section II. Among the few responsibilities listed are judicial appointments and control over the military.
Today, the Executive Branch plays an increasingly important  role in both foreign and domestic affairs. Not only does the President set his party’s domestic legislative agenda, he can even commit troops to conflict abroad without Congressional consent. The growth of Presidential authority in the ill-defined War on Terror, demonstrated by President Obama’s controversial targeted killing of American Anwar al-Awlaki, indicates a need for Congress and the Supreme Court to check the executive branch’s growing authority.
The Incredible Growing Presidency
Historically, sitting presidents have expanded executive authority in crisis. Lincoln famously suspended habeus corpus during the Civil War, and Franklin Roosevelt magnified Presidential clout exponentially during the Great Depression. More recently, President Bush inherited a Congress that had proven  deferent to presidents from Nixon onward, a legacy he fully exploited.
Princeton Professor Julian Zelizer told the HPR that, “Since [the] 1980s, we’ve seen a real acceleration in the expansion of executive authority as a means to circumvent the legislative branch, particularly with regards to national security.” Zelizer believes that conservatives, though initially skeptical of government and its reach, have found in executive power a convenient tool to achieve their goals.
A Wartime President
The War on Terror provides a unique lens through which to evaluate recent expansions of executive power. The September 11 attacks enabled the Bush administration to apply wider and more powerful techniques to enhance domestic safety. The immediate terrorist threat allowed laws to pass swiftly with little debate, the U.S.A. Patriot Act being a prime example. Arguing that national security would depend primarily upon intelligence gathering, supporters increased the government’s surveillance capabilities.
Other examples underscore this notion of war growing the President’s office. The National Security Agency claims the Authorization for Use of Military Force Against Terrorists allows the government to conduct wiretaps and electronic surveillance without warrants. Author and lawyer Bruce Fein told the HPR that this means American citizens “no longer need to have a criminal record to justify the use of spying on them by the American government.” Former Department of Justice official John Yoo provides a different perspective, asserting that  “preventing terrorist attacks depends on spotting, in advance, patterns and connections in communications, travel and transfers of funds, rather than waiting for the attacks to occur.” For his part, Yoo led many efforts to enhance government authority during the Bush administration, emphasizing the need for efficient and obstacle-free security measures. To be sure, much of this debate ultimately hinges upon the philosophical  divide weighing  the relative importance of privacy and security. Yet it has been the president— not Congress—who sets that final balance.
The Obama Rerun?
While President Obama often chastised his predecessor for unlawful abuse of powers, his administration has ironically kept course. Indeed, renewing the Patriot Act, continuing wars in the Middle East, and expanding security and intelligence agencies’ powers all tie Obama to Bush’s legacy. President Obama has also significantly scaled up drone usage in targeted assassinations abroad, a move hotly debated by legal scholars. Though American citizen Anwar al-Awlaki famously declared jihad against the United States, many objected to his targeted killing, which the administration executed without trial or even an indictment.
This apparent breach of al-Awlaki’s inalienable rights leads Fein to claim, “All of our rights, now, depend upon the good will and benevolence of the President.” Again, Yoo views the situation differently. As he puts it, “American citizens who join the enemy do not enjoy a roving legal force-field that immunizes them from military reprisal.” He continues, “If the U.S. were to reserve criminal justice rules for American terrorists, it  would  only  encourage  al-Qaeda to recruit citizens and ease their path into this country.” In his apparent agreement with Yoo, President Obama’s policies seem less driven by ideology than by pragmatism.
One Branch Versus Two
Observers do question whether the growth of executive authority will continue indefinitely. The imperial presidency’s greatest threat remains that another governmental branch will curtail these powers. Previously, Congress has acted swiftly when it has felt that the Executive Branch has over-stepped its reach. During the Nixon Presidency, Congress passed the War Powers Act and the Budget Reform Act to strengthen its own role in the policymaking process. However, in today’s polarized climate, any serious legislative attempt to check presidential powers seems far-fetched. Harvard government Professor Carols Rosillo told the HPR, “It takes a very determined Congress to over-ride a Presidential veto, and partisan politics often come in the way… [O]ften, if Congress agrees with the substance of a policy, they will be less concerned with the constitutional questions involved.”
Yoo counters that Congress does have options, including: “reducing funding for the military, eliminating units, or freezing supplies.” Yet these options are often politically disastrous and likely unfeasible. Robert Higgs, a libertarian economic historian, agreed that Congress is simply “too interested in the upcoming election and too in favor of their own power to attempt actions that might make people feel more unsafe, even though they protect their liberties.”  Indeed, the President can even simply disregard legislation when suitable, as evidenced by Obama continuing military action against Libya for longer than 90 days without Congressional consent, essentially bypassing the War Powers Act.
The Supreme Court may be the branch best able to check executive authority effectively. The Court has already played an important role in the War on Terror, with its decision in Hamdi v. Rumsfeld reaffirming the right  of  habeus  corpus  over  presidential  objections. Nevertheless, many of these decisions  amount to little more than a slap on the wrist, and the general trend of executive growth continues. The Court must create a new legal framework, specific  to the war on terror, which clearly defines terms such as “enemy combatant.”
In time, the ultimate check on executive authority is the American electorate. Zelizer worries that “because of the current focus on the economy, people aren’t  concerned  with growing presidential powers right now.” Proceeding forward, the global terrorist threat continues, even with Osama bin Laden’s death. With both major parties unwilling to dismantle the national security apparatus, the trend of increased executive authority will not be reversed in the near future. The judiciary, with its insulation from political machinations, may be best suited to counter this dangerous trend. Ultimately, however, Americans must decide what liberties they are willing to sacrifice for additional security.
Arjun Mody ’14 and Corinne Curcie ’15 are Staff Writers.
Photo Credit: U.S. Army