Breaking the Cycle of Unrestrained Presidential National Security Power

Abstract

As a number of scholars have argued, constitutional and statutory limits have failed to constrain presidential national security power after 9/11 (Fisher 2012b; Pious 2011; Glennon 2015; Edelson 2016). Both the George W. Bush and Obama administrations have found ways around legal limitations on presidential power, while a generally acquiescent Congress has often failed to act and Supreme Court decisions aimed at setting limits have failed to have an effect.If this diagnosis is right – that presidential power has broken free of the rule of law and must be reined in – then what is the prescription? How is this problem to be resolved, and how can a balance be struck between the need for sufficient presidential power to defend national security and the need for meaningful legal restraints on power? This paper will consider specific proposals aimed at achieving these goals. I will consider the role various actors can play: (a) members of Congress, (b) the press, (c) the public, (d) scholars, (e) executive branch lawyers and (f) the courts. My methodological approach is qualitative, based on an analysis of specific actions taken by past presidents, other executive branch actors, legislators, and judges. I use primary sources, including executive orders, Department of Justice memoranda, and court decisions. I also draw on relevant scholarship in the area, including the sources mentioned above. For those interested in finding ways to limit presidential power, recent history provides hopeful examples, including (1) actions members of Congress took in August 2013 to prevent President Obama from acting unilaterally against the Assad regime; (2) actions by some executive branch lawyers in both the George W. Bush (Jack Goldsmith on warrantless surveillance) and Obama administrations (Caroline Krass on military action in Libya after the War Powers Resolution window closed) and (3) legislative changes to bulk metadata collection following the Snowden revelations regarding surveillance. Recent history also provides cautionary tales, or examples to be avoided — for example, Congress’s failure to act regarding ISIS, Harold Koh’s definition of hostilities under the War Powers Resolution, and John Yoo’s memos advancing the idea of an unconstrained unitary executive.With a new president taking office next year, this is a useful moment to consider what actions can be taken to break the cycle of unrestrained presidential power. This paper proposes a number of specific ideas designed to achieve this goal.