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Limits on Presidential Authority
What limits are there to the President’s authority over homeland security? No serious study of homeland security can be had without a discussion of the limits of the executive branch in committing our citizens to the cost of war.
The “Take Care” clause of the US Constitution, Article II, Section 3, authorizes the President to take care that the laws be faithfully executed. What does this mean in the context of homeland security? In the landmark case of Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) dealt with this clause as authorization by President Truman to take over production of a supplier of steel during the Korean Conflict (an undeclared war) when he feared that a strike would endanger the production of steel necessary for national security. The Court discussed at length the President’s authority but found seizure powers lacking even in the interests of national security. Three dissenting justices argued for “Flexibility as to mode of expression to meet critical situations is a matter of practical necessity.” But Justice Clark also seemed sympathetic to this argument in other situations and stated in his concurring opinion: “[T]he Constitution does grant to the President extensive authority in times of grave and imperative national emergency [and indeed] such a grant may well be necessary to the very existence of the Constitution itself.”
The Youngstown case is a landmark case that has had major repercussions in more recent times, including as the basis for presidential seizure of Iranian assets by President Carter during the Iran hostage crisis in Dames & Moore v. Regan, 453 U.S. 654 (1981).
In the Youngstown case we see that the Commander-In-Chief could not run rough-shod over Congress in the absence of legislative authorization when no war had been declared. This Congressional frustration culminated in the passing of The War Powers Act ( 50 U.S.C. §§ 1541 - 1548) after Vietnam and the secret war in Laos and Cambodia. It requires the President to withdraw military troops after 90 days if there has not been Congressional authorization. The Act was passed over President Nixon’s veto and no President since then has conceded its constitutionality. Nevertheless, presidents have informally followed it, such as in Desert Storm (see Authorization for Use of Military Force Against Iraq Resolution, 50 U.S.C. § 1541(2)9c): “Consistent with Section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 59b) of the War Powers Resolution.” In fact, that resolution (HR-77) never even used the word "war" except in the phrase “The War Powers Resolution.” It did cite a U.N. resolution seeking to “restore international peace and security in that area,” and authorized the President to “use armed forces pursuant to the UN Security Council’s resolutions passed in response to Iraq’s invasion of Kuwait.”
Then in June 2006 the Supreme Court in Hamdan v. Rumsfeld, when dealing with the issue of using military tribunals for Guantanamo detainees, shot down the Bush Administration’s argument that the Court did not have the authority to hear this type of case. According to the Washington Post,
“As a result, no military commission can try Salim Ahmed Hamdan, the former aide to Osama bin Laden whose case was before the justices, or anyone else, unless the president does one of two things he has resisted doing for more than four years: operate the commissions by the rules of regular military courts-martial, or ask Congress for specific permission to proceed differently... Brushing aside administration pleas not to second-guess the commander in chief during wartime, a five-justice majority ruled that the commissions, which were outlined by Bush in a military order on Nov. 13, 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.”
Student Activities and Assessment Tools
  • Have the students debate the appropriateness of The War Powers Act. Should the Commander-in-Chief be limited in this way? Is that what the Founding Fathers intended? You may wish to use the assessment form provided here.
  • Have the students read the case of Youngstown Sheet and Tube Co. v. Sawyer and discuss whether they agree or disagree with the Court’s conclusion on limiting presidential authority even for national security reasons. Is there a national emergency exception? Justice Clark used the example of President Lincoln and stated: “Measures otherwise unconstitutional might become lawful by becoming indipsensible to the preservation of the Constitution through the preservation of the nation.” You may wish to use the assessment form provided here.
  • Have the students read the case of Dames & Moore v. Regan and debate to what extent the President should be able to seize assets of another country in retaliation for attacks on our homeland. You may wish to use the assessment form provided here.