The Bush Administration has done a shocking amount of damage to the United States’ economy and global credibility.  Bush’s shenanigans – implementing tax cuts benefiting only the richest Americans, torturing people when seemingly convenient, ignoring the Geneva conventions, and invading Iraq on the basis of deliberately manipulated intelligence – have greatly dishonored the United States.  But what many people overlook, surely without malice, is that these shenanigans were made possible by the very architecture of the Constitution.  For that document, dear friends, only says what a president may do, leaving woefully indeterminate what a president may not do.  Hence the Bush Administration’s insistence on so many occasions that it is at liberty to do whatever it pleases in the name of national security.

The idea that the chief executive of the United States enjoys a range of powers not specifically granted by the Constitution has a long and storied pedigree.  The idea begins with the Framers themselves, learned men who, while taking great care to restrict the powers granted to the Congress in Article I, section 8, decided that the powers assigned to the president should be articulated with considerable economy – which is a gentle way of saying that the Framers didn’t limit the president’s powers in the way they should have.

Consider Article II of the Constitution.  It simply says that the president has the authority to:  (1) compel members of his own cabinet to render their opinions in writing, (2) convene special sessions of Congress, (3) set adjournment dates if the two houses of Congress cannot agree on one, (4) receive ambassadors, (5) act as the commander in chief of the armed forces, (6) veto legislation (which Congress may at its discretion override), and (7) pardon individuals convicted of crimes.  The president also shares with Congress the power to make treaties and appoint federal judges.

The Constitution says virtually nothing about the limitations on the executive’s authority, which is why American thinkers separated by time and geography have, when expedience comes a calling, assured the public and the president’s critics that Article II represents a “general,” i.e., unqualified and virtually limitless, grant of power to the executive.  Alexander Hamilton made this obscene argument under the namesake “Pacificus” in the context of justifying Washington’s decision to act without Congressional consent in adopting the Neutrality Proclamation of 1793, which denied aid to France in its struggle against the British.  Not to be outdone, John Yoo today insists that Article II grants the president unbounded executive authority which he (or she) may employ to torture individuals in the name of national security.

Article II of the Constitution is in desperate need of an overhaul.  We can no longer allow the president to exercise unfettered discretion in overseeing the exceedingly complex economic, political, environmental, and educational problems of the modern world.  Two changes to Article II would be particularly wise.  (I shall consider just two proposed changes relating to the regulation of national security.  Note that a host of other changes regarding (i) how presidents are elected and replaced and (ii) what the scope and content of existing duties should be (e.g., the president’s current duty to “take care that the laws be faithfully executed”) should be considered if and when Article II is revised.)

First, the president’s authority over national security issues that relate directly to the identification, detention, treatment, and legal entitlements (including access to habeas relief) of suspected terrorists must be carefully limited so that a sitting U.S. president cannot alone legislate with respect to complex national security issues that are best thoughtfully addressed by the collaborative efforts of the congressional and executive branches of government.  If the Bush years have taught us anything, it’s that the executive branch should not be constitutionally able to unilaterally act on its own crackpot hunches.

Second, to maintain our ability to respond adroitly to ever changing national security threats, a revised Article II should set out procedures whereby the president can ask Congress to expedite the consideration of novel approaches to dealing with those threats.  The idea, of course, is that the executive branch should still function as a source of potential solutions to these problems; the executive’s solutions must be pressure tested.  In addition, where national security issues are subject to the type of collaborative regulation briefly sketched above, the contributions of the president to those joint regulatory efforts must be clearly defined so that any potential breaches of the president’s authority under the revised Article II can be easily identified and shut down.

Reasonable minds may disagree about precisely how to craft new, reasonable limits on the president’s powers.  But until there is a thoughtful and complete revision of those powers as set out in Article II, the United States remains vulnerable to the machinations of another arrogant, wildly authoritarian U.S. president.

Related posts:

1. A Chip Off the Old Blockhead
2. Getting History Right