President's Emergency Powers by Milton

The Constitutional views of the president’s emergency powers have brought “erosions” into civil liberties, but the formal powers of the executive provided by article II are without substance if the president is unable to persuade the major constituencies in and beyond the government that their interest are mutual.

This discussion of executive power involves one central question: To what extent is the president authorized to act on behalf of national interest in times of foreign and domestic emergencies in absence of law, or in defiance of law? If we consider presidential actions in time of crisis from the earliest days, President Washington considered a constitutional prerogative of his office to quell domestic insurrection by using force, if necessary, against Indian tribes. Thomas Jefferson stretched the outer boundaries of his office to his successful campaign to purchase Louisiana from France in 1803. Several presidents in the nineteen-century, engaged American troops to fight the so-called quasi-wars, to secure American commercial interests. Lincoln’s’ broad and bold use of executive power defended the prerogative of the executive to go beyond what either the court or congress had recognized as the written law governing the president’s roll as commander in chief. Then again, no president had been faced with an internal crisis that was remotely comparable to the civil war. Thus it was no surprise that the court was soon called upon to decide whether Lincoln’s invocation of executive power to conduct and manage the Civil War violated the Constitution. The Court in Prize Cases (1963) was presented with the question of whether President Lincoln’s command to impose a naval blockade of Southern Ports usurped the power of congress to declare war. The court provided Lincoln with his constitutional foundation to conduct his aggressive prosecution of the Civil War. Later, the Court made clear that Presidential power to suspend constitutional rights of civilians and exercise executive prerogative, not extended beyond wartime emergencies. By the time U.S entered into World War II, the court had given President Roosevelt fully and complete power to impose emergency domestic measures in the service of National security interests, whether economical or political in nature, regardless of their impact on the civil liberties of the United States Citizens. As an exercise in raw executive power, in 1942 President Roosevelt decided to order the evacuation of Japanese Americans from the West Coast and intern them indefinitely into makeshift prison camps. In Korematsu V. U.S (1944) the court upheld President Roosevelt’s evacuation and internment as valid exercise of wartime powers.  In 1977, during the Vietnam War, The United States brought actions to enjoin publication in the New York Times and in the Washington Post of certain classified material, had not met the “heavy” burden of showing justification for the enforcement of such a prior restraint. The Case New York Times Co. v. U.S (1971), the president’s emergency power violated the First Amendment. In 1979 Iranians invaded the American Embassy in Iran and took a few diplomats hostages. President Carter froze all Iranian Assets in the United States. The case Dames & Moore V. Reagan (1981) illustrates how intertwined domestic and foreign interests can be in the exercise of emergency presidential Power.  Undoubtedly, it is the fear and fervor surrounding emergency times that allow imposition of laws that infringe civil liberties. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principal of racial discrimination in criminal procedures and of transplanting American Citizens. This principle lies like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

Milton@ibt-eft.com