Presidential Powers

Kevin D. Williamson writes:

Because the power to determine who is an “enemy combatant” is vested in the same executive charged with carrying out military and intelligence operations, the present policy is an invitation to abuse. This is especially worrisome if we concede Andy’s very broad theory of executive power, which, if I understand it, holds that the president and his appointees are empowered to ignore the law (“congressional statute”) if they believe that the law interferes with their constitutional national-security mandate.

Andy McCarthy replies:

…the proposition that the president is empowered to ignore congressional statutes that purport to inhibit his constitutional authority is not a controversial one. When Republican presidents ignore statutes enacted by Democrat-dominated congresses (e.g., FISA), it becomes controversial (even if Democrat presidents have ignored the same statutes). But the principle that presidential power cannot be reduced or repealed by statute is black-letter law and that has been relied on by every president (including the current one, every time he signs a mammoth bill containing this or that provision by which Congress seeks to usurp executive authority). Courts, furthermore, overrule Congress all the time because of what Hamilton aptly called “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments” — and, I’d add, to intude on the rights and absorb the powers of the states and the individual. I don’t know why people so easily accept judicial invalidation of congressional statutes but blanch when presidents ignore congressional statutes of dubious constitutionality. Anyhow, this tug-of-war between the president and Congress is to be expected because the Constitution does not firmly delineate boundaries where one’s power ends and the other’s begins.

This misses the point of Mr. Williams’ objection. We can all agree that certain presidential powers cannot be stripped by Congress. For example, the president gets to nominate Supreme Court Justices, and that doesn’t change if Congress passes a statute that says, “The president may not appoint anyone to vacancies in the Supreme Court during odd years.”

The controversial thing here is the assertion that the president’s war powers trump everything else in the Constitution — that merely by asserting a power is required to wage war, the president may do as he pleases, regardless of powers that the Constitution delegates to other branches. If Mr. McCarthy ever addresses this subject, I hope he’ll point out the specific words in the Constitution that persuade him the president possesses the expansive powers he suggests. I also wonder how he would react if President Obama issued a proclamation stating, for example, “Our terrorist enemies are attacking us partly due to opinion pieces in the American press that inaccurately characterize and unduly criticize Islam. Therefore under my power to wage the War on Terrorism, I am implementing an official prohibition on publishing this kind of content for the duration of the conflict.”


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