How a President Trump or Clinton Could Upend the Constitution

In the 15 years since the 9/11 terrorist attacks, presidents of both major political parties in the U.S. have found ways to take unilateral action in the name of national security, even when such action is not sanctioned by the Constitution or statutory law. There are reasons why this model may be appealing. It seems to make intuitive sense that the nation needs one person—the president—who can act quickly and decisively to respond to the threat posed by ISIS, al Qaeda, and other terrorist groups. Those who defend expansive presidential power typically argue either that the constitutional model of checks and balances no longer applies to 21^st century threats or that the framers of the Constitution actually intended for the president to have unchecked unilateral authority to defend the nation.

It turns out, however, that neither of these arguments are persuasive. The framers of the Constitution made some serious errors. But they also got some important things right. The system of checks and balances is an enduring one that should continue to apply today. It was designed to give the federal government, including the executive branch, the necessary powers to provide national security while also setting limits on those powers. Even though the framers could not anticipate 21^st century dangers, their system is designed to allow the president to act quickly and decisively in response to an emergency, and there is no evidence that additional extraconstitutional power is necessary to deal with terrorist threats. There is also no evidence that the framers, who had recently rejected a monarch, meant to lodge unchecked authority in the newly created office of the presidency.

I say that the constitutional system should continue to apply today. The question is whether it will continue to apply. The Constitution is not self-executing. Each branch of government must enforce limits on the power of other branches. James Madison warned against a concentration of power in any one branch of government. Right now, in the context of national security, power is becoming concentrated in the hands of the executive. With the Obama administration coming to an end, it’s worth considering whether the post 9/11 expansion of executive national security power will continue.

It’s important to note that executive national security power had been expanding for decades, even before 9/11. An important turning point was President Truman’s decision to go to war in Korea without congressional approval. Presidents and executive branch lawyers since Truman have cited this precedent to justify unilateral presidential authority to order the use of military force. But 9/11 was another key turning point. Bush and (in some areas) Obama claimed unilateral authority to use military force, conduct surveillance, order interrogation methods, and detain suspected terrorists. The Bush administration often relied on the unitary executive theory, the radical notion that the president can set aside laws that, in the president’s view alone, infringe on executive power. The Obama administration has used different reasoning to, in many cases, reach a similar conclusion.

The important questions to consider are 1) whether unchecked executive power will continue and 2) whether unchecked executive power should continue. There is every reason to believe that the next president will press for as much national security power as he or she can exercise. Madison’s 18^th century observation that men (and women, one would add today) are not angels still applies—people have a selfish interest in seeking power. The constitutional model of checks and balances was designed to deal with this reality. The model is not working right now—not because it is archaic, but because Congress is failing to act. Unless Congress fulfills its constitutional responsibilities—for instance, by insisting that the use of military force is authorized by the legislature—it is difficult to see how executive power will be effectively limited (though it’s worth noting that executive branch lawyers may also have the ability to limit presidential power).

Congress should act because unchecked executive power is dangerous and unnecessary. It produces bad results—torture, the unworkable detention system at Guantanamo, the ill-conceived military intervention in Libya that President Obama calls the worst mistake of his presidency. If we continue on the post 9/11 path, Madison’s nightmare will come true as the executive branch will wield unrestrained national security power.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. His book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published in May 2016 by the University of Wisconsin Press.