Exploring the limits of presidential power after 9/11

Lessons from Abraham Lincoln's use of executive power during the Civil War

The use of discretionary executive power by presidents grows in times of national crisis. Constitutions can limit that expansion, but only if the extraordinary use of executive power is exercised openly and temporarily. So concludes research by political scientist Benjamin A. Kleinerman (Virginia Military Institute) that draws lessons from the use of executive power by President Abraham Lincoln during the Civil War.

Kleinerman's article is entitled "Lincoln's Example: Executive Power and the Survival of Constitutionalism" and appears in the December issue of Perspectives on Politics, a journal of the American Political Science Association. It is available online at http://www.apsanet.org/imgtest/PerspectivesDec05Kleinerman.pdf.

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 Lincoln's actions are cited by both advocates and opponents of expanded executive power. The author draws three lessons from Lincoln:

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." Lincoln also expended significant effort to foster public attachment to the Constitution to compel presidents to justify their behavior in terms of their constitutional responsibility. To do so today would require a restoration of "the notion of executive prerogative to the sphere of public discourse."

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 [Lincoln's] overriding concern was the survival of a constitutional Union," states Kleinerman, "any departure from the bounds of the Constitution must also point back to its restoration."

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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The American Political Science Association (est. 1903) is the leading professional organization for the study of political science and has 15,000 members in 80 countries. For more information about political science research visit the APSA's media website, www.politicalsciencenews.org.


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