Controlling Executive Power in the War on Terrorism

By Tushnet, Mark V. | Harvard Law Review, June 2005 | Go to article overview

Controlling Executive Power in the War on Terrorism

Tushnet, Mark V., Harvard Law Review

Imagine this scenario: after a series of bombings in New York, the President directs U.S. armed forces to round up Arab American males over the age of fifteen in the New York metropolitan area and confine them in a sports stadium; those who military officers determine pose no continuing threat to domestic security are released back to their communities, a process that predictably will lead to some detentions lasting a month and more. (1) The discussion by Professors Bradley and Goldsmith of the Authorization for the Use of Military Force (2) (AUMF) adopted on September 18, 2001, (3) raises the intriguing question: would such action be authorized by the AUMF already in place? (4) This Reply addresses only a few aspects of the problems Professors Bradley and Goldsmith consider, in an attempt to draw out some of the more general implications of their analysis for constitutional law.

How does--or should--the U.S. Constitution regulate the exercise of power in response to threats to national security, to ensure that power is used wisely? (5) Broadly speaking, two mechanisms of control are available: a separation-of-powers mechanism and a judicial-review mechanism. (6) Both mechanisms aim to ensure that the national government exercises its power responsibly--with sufficient vigor to meet the nation's challenges, but without intruding on protected liberties. (7) Under the separation-of-powers mechanism, nearly all of the work of regulating power is done by the principle that the President can do only what Congress authorizes. (8) Its primary concern is what Professors Bradley and Goldsmith call Executive Branch unilateralism, a fear that Presidents acting on their own might make unsound decisions, engaging in too much (or too little) military action, intruding on liberties too much (or too little). Under the judicial-review mechanism, courts enforce two sets of principles: principles allocating power between the President and Congress, and principles protecting individual liberties, such as those embodied in the Fourth and Fifth Amendments. Its primary concern is that the government as a whole will act improvidently. To avoid unilateral executive (or congressional) action, the judicial-review mechanism makes the concerns that underlie the separation-of-powers mechanism enforceable by the courts. I believe that neither the separation-of-powers nor the judicial-review mechanism of control is adequate to the task of structuring the exercise of national power under modern conditions, and that we would benefit from creative thinking about good constitutional design.

Defenders of the separation-of-powers mechanism make both a positive and a negative case. (9) The positive case rests on the classic "ambition counteracting ambition" theory articulated in The Federalist Papers. (10) Congress and the President stand in structural opposition to each other, with each side alert to possible "power grabs" by the other that would threaten--simultaneously--the people's liberties and the prerogatives and power of the opposing branch. (11) In addition, the people influence the President and Congress differently, with members of the House of Representatives concerned that their constituents might turn them out of office if they fail to challenge presidential initiatives that the people believe threaten their liberties, the President having a nationwide constituency more sensitive than smaller and more parochial constituencies to national security concerns, and the Senate free to deliberate about what good policy would be without concern for short-run political disadvantage. (12) The separation-of-powers mechanism rejects executive unilateralism, but identifies no enduring substantive limitations on what the President and Congress may do; the only limitations are those worked out in the interactions between the President and Congress. (13)

Professors Bradley and Goldsmith indirectly challenge the adequacy of the separation-of-powers mechanism of control by showing how the AUMF can be given an entirely reasonable interpretation that some might think authorizes actions within the borders of the United States that pose threats to basic liberties of American citizens. …

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