The On/Off Switch

Abstract

The only point I want to make is very simple, but its implications are immensely important. The writers of a Constitution that carefully separated powers out of fear of executive authority and who, even then, saw that it could only be ratified after a Bill of Rights was added, could not have intended that the President be given unilateral control of an on/off switch for both of these sets of protections against executive power. I could stop there. I. ARTICLE II I am persuaded that a presidential signing statement, an interpretation of a new law, is just one of a number of forms by which the President can direct executive branch activity, with certain advantages and disadvantages to each. I take seriously the argument that the President, under an extension of the principles of Marbury v. Madison,1 has a responsibility to direct subordinates not to enforce at least some statutes on the grounds that they are plainly unconstitutional. I wonder whether this logic would not take us, as well, to the obligation of executive subordinates not to enforce any presidential directives or statutes they regard as unconstitutional - a consequence that nobody recommends. I am not at all sure that a distinction can be drawn between his protection of Article ? powers, such as the appointment power,2 and his protection of the Bill of Rights. I recognize that the precedents have drawn no such distinction, although the former seems to pose more of a conflict of interest. Still, no chain of reasoning in terms of premises that start with the normal priority of the Constitution over statutes3 can convince me that the President was given independent control of an on/off switch labeled "war" or "no war" against individuals or groups - a switch that empowers him to set aside vast portions of the Constitution and, in particular, those portions that were intended to control his powers. That simply cannot be. If, as history and policy both dictate, the executive enjoys highly exceptional powers and independence in times of "war," Congress and the courts have to control that switch. My argument thus does not require concluding that, in times of armed conflict between the United States and another state, the President lacks extraordinary powers. My argument does not even require me to insist that any such conflict be something recognizable as very similar to a past war before Congress can agree, in a way that is likely to bind the courts, that the President has the extraordinary powers that Lincoln and Roosevelt exercised. My argument is simply that, except for a short period of time after a dangerous emergency arises and before Congress can act, the President cannot exercise war powers except with the consent of Congress. The reason is very simple. In the Constitution, the Framers allocated to Congress powers which were very carefully withheld from the President4 and the Framers gave the people liberties which were very carefully protected from the President.5 There may be rare situations of war or other emergency where some of those fundamental understandings do not apply, but it would have been absurd for the Framers to allow a discretionary decision ofthe President that we were at war with some group of nonstate actors to overturn the most basic framework of the Constitution. Unlike many other constitutions, our Constitution does not contain emergency powers, other than the power of Congress to suspend habeas corpus in times of invasion or rebellion.6 Modern nations that do have emergency powers generally require legislative authorization of a state of emergency.7 They do not allow the chief executive to decide for himself when he is to have extraordinary powers.8 Perhaps very dangerous situations can create something like emergency powers, although the Framers did not find it necessary to do this explicitly. But if there are such extraordinary national security powers in the executive, the most rudimentary common sense - something the Framers excelled at - would require these powers to be triggered by another branch. …