by Scott M. Matheson, Jr. Cambridge: Harvard University Press, 2009. 248pp. Cloth. $45.00/£33.95/€40.50. ISBN: 9780674031616.
Reviewed by Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress. Lfisher [at] loc.gov.
Scott M. Matheson, a member of the law faculty at the University of Utah, has prepared a thoughtful analysis of the exercise of presidential power during national security crises. When do presidential initiatives fall within the permissible bounds of constitutional authority? When do they fall outside? He focuses on five periods: Abraham Lincoln’s suspension of the writ of habeas corpus during the Civil War, Woodrow Wilson’s enforcement of the Espionage Act during World War I, Franklin D. Roosevelt’s evacuation and internment of Japanese Americans during World War II, Harry Truman’s seizure of steel mills during the Korean War, and George W. Bush’s torture, surveillance and detention programs following the 9/11 terrorist attacks.
Matheson advocates what he calls “executive constitutionalism,” a presidential attitude that respects the need for statutory authority, judicial checks, and a significant role for the press, academics, public interest groups, and the public. Executive constitutionalism means “accountability to the Constitution and the people by basing government action as much as possible on the broadest basis of legitimacy – executive action authorized by Congress” (p.31). The presidency “requires a constitutional conscientiousness that was lacking in the George W. Bush administration” (p.5). Matheson concludes that certain security measures by the Bush administration “crossed into extraconstitutionalism” (p.153). The Bush “obsession with expanding executive authority has been one of the most ideologically aggressive in U.S. history” in pursuing “unchecked unilateral power” (p.6). One of the “great ironies” of the Bush administration was “the spectacle of the United States promoting democracy and the rule of law as the ultimate answer to chaos and crisis in the Middle East when the President simultaneously claimed powers that would compromise our own commitment to constitutionalism” (p.31).
At the outset, Matheson rejects the “simple tradeoff between security and liberty,” where liberty interests are automatically subordinated to the needs of national security. Depending on the security measures taken, they can “potentially both burden and protect individual liberties” and thus call for “careful and realistic analysis of how to limit the former and safeguard the latter” (p.1). Matheson reviews the framers’ intent to create a single executive who “must derive its authority from the Constitution itself” and not from unbounded monarchical powers (p.7). The Constitution was designed to work not just in times of stability and peace but in times of crisis. When threats to national security appear, the principle of [*506] separation of powers requires that “for virtually every significant government action . . . at least two branches of government must be involved.” No branch, acting either unilaterally or in concert with another, has the power to violate the Bill of Rights. Executive authority “should govern within this constitutional framework” (p.9).
This theme of executive constitutionalism is not always developed in a consistent manner. For example, Matheson states that experience “has shown that legislative and judicial predisposition to defer to the executive in matters of foreign policy and national security enhances the structural advantages of the presidency to act in time of emergency” (p.11). What effect does legislative and judicial deference to the President have on the constitutional checks that flow from separation of powers, requiring “at least two branches” to agree on government action? Deference by Congress and the Supreme Court to Franklin Roosevelt’s initiatives led to the detention of Japanese Americans during World War II. In both HIRABAYASHI and KOREMATSU the Court deferred to Roosevelt’s curfew and detention decisions, resulting in what Matheson calls “among the most egregious infringements of individual liberties in American history” (p.63). The evacuation and internment policy marked “a failure of all three constitutional branches to accommodate both liberty and security in time of war. The executive overreacted, the Congress rubber stamped, and the Supreme Court lost its nerve” (p.73).
At times Matheson fails to analyze superficial concepts and doctrines that administrations use to inflate presidential power. He refers to the “sole organ” doctrine that is frequently invoked to justify unilateral, unchecked executive actions. Here is language from a Justice Department memo in 2001: “We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations” (p.18). The sole-organ doctrine flows from serious misconceptions by Justice George Sutherland in dicta he prepared for the CURTISS-WRIGHT case. The language “sole organ” comes from a speech delivered in 1800 by John Marshall when he was a member of the U.S. House of Representatives. Nothing in that speech gave the President any type of plenary or exclusive power in foreign relations. Marshall plainly contemplated that the President would function as the sole organ only after receiving either statutory or treaty authority from Congress and the Senate. See my article on the sole-organ doctrine in the March 2007 issue of PRESIDENTIAL STUDIES QUARTERLY. For more detailed analysis, my August 2006 study is available at http://www.loc.gov/law/help/usconlaw/pdf/SoleOrgan-Aug06.pdf and in the category “Presidential Inherent Powers” at http://www.loc.gov/law/help/usconlaw/index.php.
Matheson refers to CURTISS-WRIGHT as the “leading Supreme Court statement of executive supremacy” but acknowledges that Justice Sutherland’s theory “has been thoroughly criticized as contrary to the Constitution’s enumeration and delegation of foreign [*507] policy powers to Congress and the President and to the Framers’ intent for a presidency with limited powers” (p.19). Sutherland’s argument about the President possessing exclusive power over foreign affairs and being “extraconstitutional in character” is “historically flawed” (p.29). Dissecting the deficiencies of the sole-organ doctrine would have helped drive home that point.
According to Matheson, President Bush separated himself from “his predecessors” by not calling “for suspension of the writ of habeas corpus” (p.85). He did not do so formally, but he claimed the right to hold U.S. citizens and aliens indefinitely as “enemy combatants” (a designation made solely within the executive branch), without legal counsel or trial. The Bush administration claimed it could hold detainees at the Guantanamo naval base without giving them access to federal courts. It gained statutory authority from Congress to deny detainees the right to bring habeas petitions to federal district courts, offering them only access to the D.C. Circuit after conclusion of military tribunals at the naval base. On all those issues, in HAMDI, RASUL, HAMDAN, and BOUMEDIENE, the Supreme Court rejected those claims of executive power.
The book invites a discussion on the concepts of “inherent” presidential power and “extraconstitutionalism.” Matheson says that the Bush administration “did not expressly claim that a President facing wartime exigencies has the power to act outside the Constitution to protect the nation” (p.104). Yet Matheson acknowledges that the Bush administration argued that the President claimed “inherent” powers to act in violation of treaties and statutes (p.91). Moreover, Matheson states that the phrase “‘inherent power’ connotes extraconstitutionalism” (p.83). He further notes: “Although the Torture Memo attempted to rely on the Vesting and Commander-in-Chief clauses, its claim of absolute authority cuts so deeply against the grain of the Constitution’s separation of powers foundation as to amount to extraconstitutionalism” (p.104).
In certain places Matheson seems reluctant to state flatly that Bush acted outside the Constitution. Yet his analysis of the Terrorist Surveillance Program (TSP) conducted by the National Security Agency seems to offer no other conclusion. The administration argued that the Authorization for the Use of Military Force (AUMF) enacted after 9/11 could not “authorize silently” what the Foreign Intelligence Surveillance Act (FISA) “prohibits expressly and specifically” (p.116). If so, Bush acted outside the Constitution. For the Bush administration to claim that the AUMF authorized the TSP “would necessitate a finding that the AUMF repealed specific FISA provisions by implication, which the legislative record does not support and which courts generally disfavor” (ibid.). FISA “expressly prohibited the secret NSA surveillance program” (p.117). The book seems to provide sufficient evidence that Bush acted not only illegally (against a statute) but unconstitutionally. Consider this: “But the Bush administration did not seek congressional support for the TSP program, choosing instead to violate FISA” (p.119). And again: when the Bush administration argued that it had power “to override a statute in a realm of [*508] significant individual liberty interest, in this case Fourth Amendment interests, it crossed the extraconstitutional border” (p.125).
Oddly, Matheson concludes with this thought: “Ultimately the nation places its trust in the hands of one person whose constitutional mandate is to keep America safe and free” (p.160). That formulation contradicts his earlier position that the Constitution cannot place that trust in one person, and that joint action with at least another branch is needed to satisfy constitutionality. In fact, Matheson provides a list of guidelines on page 161 that looks not to the President alone for safety but to the larger political system. Presidents should work with Congress “to develop the legal framework that will enable government to keep the nation safe and the people free.” There is need for support and respect regarding “an independent judiciary and judicial review of executive actions and decisions.” Presidents must understand that balancing liberty and security “cannot require a choice between the two but a strategy to achieve both.”
Fisher, Louis. 2007. “Presidential Inherent Power: The ‘Sole Organ’ Doctrine.” 37 PRESIDENTIAL STUDIES QUARTERLY 139-152.
BOUMEDIENE v. BUSH, 553 U.S. ____ (2008).
HAMDAN v. RUMSFELD, 548 U.S. 557 (2006).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
HIRABAYASHI v. UNITED STATES, 320 U.S. 81 (1943).
KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).
RASUL v. BUSH, 542 U.S. 466 (2004).
UNITED STATES v. CURTISS-WRIGHT CORP., 299 U.S. 304 (1936).
© Copyright 2009 by the author, Louis Fisher.