Exploring the Limits of Presidential Power after 9/11: Lessons from Abraham Lincoln's Use of Executive Power during the Civil War Washington
Contact: Bahram Rajaee
Exploring the Limits of Presidential Power after 9/11: Lessons from Abraham Lincoln's Use of Executive Power during the Civil War
Kleinerman's article is entitled "
As demonstrated by the current NSA eavesdropping controversy, after 9/11 the Bush administration has robustly employed executive power to meet the threat posed by terrorism. These and other actions have raised questions about the proper sphere for executive power in a constitutional system during a crisis. Kleinerman's research speaks directly to this current debate as
First, "justifications...should pass the 'necessity test' within which the preservation of the constitutional order itself is at stake." Accordingly, "a concern for the public good is insufficient grounds for the executive to exercise discretionary power." This, Kleinerman notes, is because "only political necessity and not popular or congressional approval can legitimate any discretionary action taken by a president."
Second, "discretionary action should only take place in extraordinary circumstances and should be understood as extraordinary." Lincoln himself articulated clear boundaries on his use of discretionary power and repeatedly emphasized that powers assumed in times of crisis must be given up when the crisis subsides. This is important, the author observes, because as in the case of Nixon "Lincoln's precedent can empower presidents to take actions they might not otherwise take, serving as their... justification for taking any action deemed necessary for the public good."
Third, "a line must separate the executive's personal feeling and his official duty. He should take only those actions that fulfill his official duty, the preservation of the Constitution, even...if the people want him to go further." Legislation such as the Patriot Act points toward the institutionalization of expanded executive power--but once such power is entrenched, it is no longer prerogative or discretionary. "Because [
The question of the proper role of executive power today touches on core questions of constitutional order and American politics, including checks and balances, popular will, executive prerogatives, civil liberties, and national security. The author affirms that "we must beware of simply asserting that current presidents must "be like Lincoln'" and concludes by asking "are we...a constitutional people attached enough to the rule of law so as to prevent the overextension of executive power? In other words, are we capable of insisting upon our Constitution even when presidents do not?"
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