by Clement Fatovic. Baltimore, Md.: Johns Hopkins University Press, 2009. 352 pp. Cloth. $55.00. ISBN: 9780801893629.
Reviewed by Louis Fisher, Scholar in Residence, The Constitution Project. Email: Lfisher11 [at] verizon.net. The views expressed here are personal, not institutional.
Following the terrorists attacks of 9/11, many books explored the scope of presidential power to respond to emergencies, including the use of various prerogative and inherent authorities to act outside the law for the public good. Clement Fatovic, who teaches political theory at Florida International University, has written a thoughtful book that analyzes the writings of Niccolò Machiavelli, John Locke, David Hume, William Blackstone, and the American framers to determine under what conditions a President may go outside the law to protect the nation and its citizens.
The book begins with this premise: “Order is essential to the very idea of law.” Law pursues many other aims, including justice, equality, and the protection of individual rights, “but no other aim is as basic as order” (p.1). If order is the highest value, it would seem that individual rights and liberties are necessarily subordinate. Fatovic goes back and forth on that theme. Initially, he insists that “emergencies sometimes compel the executive to exceed the strict letter of the law” (p.2). He cites the German theorist Carl Schmitt for the proposition that liberalism “is incapable of dealing with the ‘exception’ or a ‘a case of extreme peril’ that poses ‘a danger to the existence of the state’ . . . .” (p.3). The result: Adolf Hitler and Nazi Germany. But liberalism has not been so rigid or dogmatic about the rule of law that it is incapable of preparing for and responding to emergencies.
The writers analyzed by Fatovic “recognized the need to supplement the rule of law with a personal element in cases of emergency” (p.4). The American framers, having weathered the War of Independence against England, were not naïve about crises. Several provisions in the Constitution anticipate emergencies: suspending the privilege of the writ of habeas corpus “in Cases of Rebellion or Invasion [when] the public Safety may require it,” prohibiting states from engaging in war “unless actually invaded, or in such imminent Danger as will not admit of delay,” and obliging the federal government to protect each state “against Invasion; and . . . against domestic Violence.” At the Philadelphia Convention, the framers understood that the President may have to “repel sudden attacks.” The Militia Acts of 1792 and 1795 authorized military force in cases of invasion or insurrection.
Fatovic does not focus on the war power. The President’s power as Commander in Chief “raises vexing questions well beyond the scope of this book” (p.255). He does cover a number of actions taken by the administration of George W. Bush after 9/11, including interrogation methods, the wars in Afghanistan and Iraq, and the warrantless surveillance [*662] program. He frequently refers to the controversial assertions of “inherent” presidential power promoted by Jay Bybee and John Yoo in their Justice Department memos. At various places in the book, Fatovic appears to accept the legitimacy of “inherent” presidential powers. There were “certain inherent powers that all executives would enjoy” (p.6). What restraints would prevent executives from abusing their discretionary authority? Primarily, citizens had to depend on the virtue of the Executive. By the end of the book, Fatovic concludes that virtue is not only a nebulous standard but that U.S. Presidents have demonstrated little capacity for conducting themselves in a manner that justifies placing trust in their judgments and decisions.
According to Fatovic, an open-ended conception of constitutionalism “clashes with the views of those who believe that the U.S. Constitution imposes strict legal constraints that limit the president to the exercise of expressly enumerated powers . . . .” (p.9). The three branches of the government have never been confined to “enumerated” powers. They have always possessed both enumerated and implied powers. A constitution cannot possibly identify every power. There must be powers by implication, including the power of Congress to investigate, the power of the President to remove department heads, and the power of federal courts to exercise judicial review.
The book explores two competing themes: “One is an openness to exercises of extralegal prerogatives in cases of emergency. The other is a belief in the continuing need for virtue in the executive to inhibit abuses of prerogative. Both ideas rest on acknowledgment that contingency is the inescapable condition of politics” (p.10). As to Locke’s defense of the executive prerogative – permitting the Executive to act not only in the absence of law but against it, for the public good – Fatovic admits it is difficult to square this theory with Locke’s ideals of republican and constitutional government. “Prerogative is an imperfect solution for an imperfect world” (p.81). That is true. Fatovic does not say so explicitly, but at times prerogative is not a solution and it can make the world even more imperfect when exercised by inept and corrupt rulers.
Turning to Blackstone, Fatovic lays out the principal values: contempt for “the excesses and ineptitude of legislative intermeddling” and the belief that monarchical judgments will protect the rights and privileges of the people (pp.127, 129). Blackstone believed that the British executive must be “beyond the coercive reach of the law” (p.147). Here is a principle that Bybee and Yoo, in their Justice Department memos, promoted. Fatovic does not explain that Blackstone’s model, placing all of external affairs in the Executive, was wholly repudiated by the American framers. Of the various prerogatives he placed with the King (the power to declare war, make treaties, appoint ambassadors, raising armies and navies, issuing letters of marque and reprisal, etc.) not a single one is vested in the President. They are either assigned exclusively to Congress or shared between the President and the Senate (appointments and treaties). This is a crucial point. The constitutional model developed by Bybee and Yoo borrows heavily from a Blackstonian framework [*663] that the framers clearly rejected (Fisher 2011).
As Fatovic states, “Americans at the time of the Founding were taught to be deeply suspicious of executive power” (p.157). The experiment of a single branch – the Continental Congress – did not work, and the framers arrived at Philadelphia with the decision to create separate executive and judiciary branches. Underlying the framers’ conception of constitutionalism “was the understanding that the contingencies of politics would often exceed the capacities of the law” (p.162). To me, that opens the door too wide for Bybee, Yoo, and others who insist that the President must have the capacity to act against the law and operate free of legislative and judicial constraints.
Fatovic discusses the need for “energy” in the Executive. Of course Alexander Hamilton is largely identified with that position, but the words “energy,” “energetic,” “vigor,” and “invigorate” appear fifteen times on a single page, part Hamilton and part Blackstone (p.176). There is little meaning to the words, unless someone feels emotionally safer with these qualities of executive power: “secrecy, dispatch, decisiveness, vigor, and action” (p.176). The qualities of energy and decisiveness, at different times in American history, have been beneficial. At other times they accurately describe Lyndon Johnson’s escalation of the war in Vietnam and George W. Bush’s decision to invade Iraq on what Fatovic says were not only false claims but “fabricated claims” (p.271).
According to Fatovic, as early as 1780 Hamilton had begun to “formulate a theory of implied or inherent powers that would have allowed Congress to deal with exigent circumstances even when it lacked an express grant of formal powers” (p.182). Implied powers are not a threat to constitutional government. They must be drawn reasonably from express or enumerated powers. The risk comes from inherent powers. Implied and inherent powers are not synonymous. Inherent powers are not drawn from express or enumerated powers. They stand outside, existing as independent powers that exist because of the nature of an office. For the difference between inherent and implied powers, see my report for the Law Library of Congress (available at http://www.constitutionproject.org/manage/file/441.pdf ) and my article in PRESIDENTIAL STUDIES QUARTERLY (http://www.constitutionproject.org/manage/file/440.pdf ).
Fatovic claims that Article II of the Constitution “never specifies the meaning or accessories of executive power and contains no explicit restrictions on executive power as such” (p.189). But taking Articles I and II together, the President is expressly restricted in many areas. He has no sole authority to make treaties or appointments, may not raise armies and navies or make rules for the military, his regular veto is subject to a congressional override, he may not withdraw money from the Treasury without an appropriation. Fatovic says the framers insisted on empowering the President to “deal with emergencies,” including the pardon power, the power to make recess appointments, and the power to convene Congress on “extraordinary Occasions” (pp.192-93). Quite true, but those [*664] powers are not inherent. They are expressly provided for in the Constitution. The Constitution includes other express and implied powers for the President to confront emergencies. Broad congressional statutes delegate even greater latitude, as Fatovic recognizes (pp.255-58).
Fatovic reviews Hamilton’s argument that Article II makes “a general grant of power that belongs exclusively to the president” (p.201). Yes, Hamilton reasoned that Article II confers a broader grant of constitutional power than Article I does for Congress. The latter refers to “All legislative Powers herein granted,” perhaps implying that Congress possesses only powers expressly enumerated. Article II appears to be a broader grant because it omits the words “herein granted.” Instead, Article II provides: “The executive power shall be vested in a President of the United States of America.” Hamilton’s distinction is superficial. Congress is not confined to powers expressly stated. It has access to both express and implied powers, plus the capacious Necessary and Proper Clause, which covers not merely the legislative branch but executive departments as well.
Toward the end of the book, Fatovic recognizes that the U.S. constitutional system does not depend exclusively or even primarily on the “virtue” of the President. Institutional and structural checks and balances were “designed to operate well enough even without that virtue” (p.224). Yes. We need not accept the President as a “father figure” who protects his children, in the same manner that Blackstone glorified the British monarch. Fatovic writes that “[n]early all Anti-Federalists thought it was ludicrous to depend on virtue or better motives in rulers” (p.231). Federalists were not much different. That is why they chose for checks and balances and overlapping branches.
In the concluding chapter, Fatovic shifts back and forth on the need for Presidents to go outside the law. “Although the increased reliance on law gives the impression that it is no longer necessary to resort to extralegal action, there may still be good reasons not to abandon the idea of executive prerogative” (p 254). Sounds like a green light for Bybee, Yoo, and their supporters. Similarly, Fatovic argues [*665] that it is important to distinguish emergencies from other scenarios: “proponents of prerogative were willing to permit the executive to resort to extralegal powers only in those cases where a strictly legal approach would do more harm than good” (p.256). That distinction is too abstract. President George W. Bush came to Congress after 9/11 to seek the Authorization for the Use of Military Force (AUMF), to support military action against Afghanistan, and pushed successfully for the USA Patriot Act. He did not seek legislative authority to create military commissions and revise the Foreign Intelligence Surveillance Act (FISA). He would have been better off politically, and the nation would have been better off constitutionally, had he sought statutory authority for both, as eventually he was forced to do.
Notwithstanding this record and its lessons, Fatovic continues to counsel: “there are so many imponderables that extralegal action may still be necessary to avert an imminent catastrophe, limit its damage, or manage the governmental response” (p.259). Why? He argues that an emergency “is always a singular event that defies comparison” (p.259). Probably true, but the devastation of Katrina on New Orleans and surrounding territories did not require the invocation of presidential inherent power or extralegal actions, nor did the economic meltdown of 2008. Each crisis was unexpected in its severity, but existing statutory authority or new legislation proved sufficient. There was no need for secret or unconstitutional actions by the President. Fatovic argues that “an extralegal approach might be less likely to have long-lasting deleterious effects on political institutions” (p.263). He does not explain why. The damage of unilateral actions by President Bush in creating military commissions and surreptitiously conducting warrantless surveillance came at great cost to the administration and the nation.
By the end of the book, Fatovic seems ready to jettison high hopes for a virtuous President. Because of the rise of party politics, it is “nearly impossible for any presidential candidate to make a plausible claim of distinterestedness or bipartisanship” (p.266). President Clinton was damaged by “his persistent deception and obfuscation” in the Monica Lewinsky affair, while President Bush II “developed a reputation for dishonesty” (pp.270-71). The record of Presidents over the last half century offers little evidence of virtue or even competence. On the last page of the book, Fatovic pins his hopes on the virtue of citizens capable of assessing the performance of elected leaders and being able and willing to “challenge abuses of the power they entrust to their leaders” (p.276). On that note, the American framers would likely nod their approval.
Fisher, Louis. 2011. “John Yoo and the Republic.” 41 PRESIDENTIAL STUDIES QUARTERLY 177.
© Copyright 2010 by the author, Louis Fisher.