<i>Presidential Constitutionalism in Perilous Times</i>

Presidential Constitutionalism in Perilous Times

May 27, 2009

Scott M. Matheson, Jr., Professor of Law, S. J. Quinney College of Law, University of Utah, author; Harvey Rishikof, Professor of National Security Law, national Defense University, commentator.

Scott Matheson began by identifying the tension that lies at the heart of his book, namely, that between securing the nation and protecting the individual liberties guaranteed in the Constitution—a tension that comes to the fore when U.S. presidents face national crises. The protection of liberties depends upon the separation of powers and a president's willingness to share power; at least two branches of government should be involved in all actions. Under George W. Bush, however, the executive branch pursued policies outside of that framework. Asserting his authority as Commander-in-Chief, President Bush conducted programs of surveillance, torture, and detention that violated the Geneva Conventions; he also established military courts without Congressional approval. It was these actions, Matheson noted, that prompted him to write his book.

Presidential Constitutionalism in Perilous Times examines a number of specific cases in which presidents impinged on individual rights in the name of national security: Abraham Lincoln's suspension of the writ of habeas corpus during the Civil War; Woodrow Wilson's violations of First Amendment rights during World War I; the internment of Japanese Americans under Franklin D. Roosevelt during World War II; Harry S. Truman's takeover of the steel mills during the Korean War; and Bush's policies after 9/11. The book examines each of these historical cases through six different "prisms": executive supremacy – to what extent did the president act unilaterally?; political branch partnership – did the executive branch forge a partnership with Congress?; judicial review – did the Supreme Court act as a check on presidential power?; retroactive judgment – did Congress approve the president's actions after the fact?; extraconstitutionalism – did the president exceed his constitutional powers?; and executive constitutionalism – did the president consult actively with Congress and support and respect the judgment of an independent judiciary? This latter prism, Matheson argued, should become a criterion for appropriate presidential action in all instances in which constitutional rights are at risk.

In his commentary, Harvey Rishikof raised a number of questions. First, if, as Matheson notes, the global war on terrorism differs from other national emergencies, does this mean that different rules are needed to guide the use of presidential power? Second, has constitutional history created what Matheson refers to as a "Lockean Prerogative" – an established justification for infringing on individual liberties in the name of preserving the nation and protecting it from harm? Third, if, as the 9/11 Commission recommended, the President briefs Congress on his or her reasons for exerting extra-Constitutional powers, is this a sufficient safeguard? What is Congress supposed to do with this information? And fourth, given Matheson's analysis, what are the responsibilities of attorneys working within the national security enterprise? Should they be held accountable for extra-constitutional actions taken at the behest of the President?

During the discussion, Matheson addressed these as well as other issues raised by members of the audience, including the role of the press and the public in influencing presidential actions; the extent to which extra-constitutional powers can be contained or retracted once they have been exerted; and the significance of signing statements. With regard to the latter, Matheson stated that as yet, the constitutional or legal status of signing statements has not been tested. Rishikof noted, however, that such statements do have practical effects, as they often determine the actions of government operatives.

Matheson concluded by reminding the audience that these issues persist under the Obama administration, as his recent speech at the National Archives indicated. The status of the prisoners at Guantanamo, for example, represents a particularly difficult quandary for the President. He has, however, indicated a desire for a broad public discussion and a decision made in consultation with others. To Matheson, this represents a significant step toward achieving executive constitutionalism.

Sonya Michel, Director, Division of U.S. Studies 202-691-4388