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17 USC 102

Part II: Constitutional Failure Since 9/11

February 6, 2019

 

I. Introduction

 

Since September 11, 2001, presidents and their administrations have adopted theories of broad emergency presidential power to justify their claimed unilateral authority to conduct the nation’s foreign affairs without scrutinization from the legislative and judicial branches. However, in Part I, I demonstrated that theories of limited emergency presidential power prove to be the most persuasive. Here, in Part II, I construct and apply a framework to define constitutional success and failure to the presidencies of George W. Bush, Barack Obama, and President Donald Trump. The application of this framework indicates that the United States has experienced a degree of constitutional failure under the aforementioned presidencies.

 

II. Constitutional Failure Since September 11, 2001

 

Under the proposed framework for defining and determining constitutional failure and success, it is evident that constitutional failure prevailed under the presidencies of (1) George W. Bush, (2) Barack Obama, and (3) Donald Trump.

 

1. President George W. Bush:

 

President George W. Bush’s authorization of the detention of suspected terrorists indicated constitutional failure.

 

1a. The Detention of Suspected Terrorists:

 

On November 6, 2001, Deputy Assistant Attorney General Patrick Philbin, who worked in the Office of Legal Counsel under the George W. Bush administration, issued a memo that justified the detention of suspected terrorists in the military system through presidential authorization. Philbin asserted that the president possessed the constitutional authority to (1) hold suspected terrorists indefinitely without access to civilian courts and (2) determine procedures for their trials before military tribunals. He posited that the president, as the commander in chief, enjoyed the power to authorize such actions in a unilateral fashion, and neither Congress nor the courts had the ability to restrict the exercise of this presidential power.

 

Philbin’s memo led President Bush to sign the Military Order of November 13, 2001, which authorized the (1) indefinite detention of noncitizens who were either suspected terrorists or their abettors and (2) such detainees’ trial under military commissions. Further, it asserted that such detainees failed to maintain constitutional protections afforded to civilian defendants, such as the right to (1) trial by jury and (2) examine evidence used against them.

           

President George W. Bush and Patrick Philbin invoked theories of broad emergency presidential power to justify the detention of suspected terrorists and their sympathizers. They subscribe to the unitary executive theory’s claim that the president’s exercise of their executive power is unreviewable by the judicial and legislative branches. The Military Order of November 13, 2001 constitutes a constitutional failure as it fails to (1) adhere to the Constitution’s text, (2) align with the Framers’ intent, and (3) protect fundamental American political norms.

           

First, the Bush administration’s detention of hundreds of suspected terrorists, the majority of whom were low-level Taliban fighters, violates the Constitution. Article I, Section 8 of the Constitution grants Congress, not the president with the authority, “To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” Therefore, by establishing rules concerning suspected terrorists’ capture and detainment abroad, President Bush infringed on Congress’ constitutional authority. Further, President Bush encroached on Congress’ unilateral authority to suspend the writ of habeas corpus in the case of national emergencies under Article I, Section 9, referred to as the Suspension Clause. Congress failed to authorize the provisions of the Military Order of November 13, 2001, in regards to the detention of noncitizens suspected of terrorism, thus President Bush violated the Constitution’s text, an example of constitutional failure.

 

President Bush’s November 2001 military order that authorized an indefinite detention program for suspected terrorists violated the Bill of Rights of the Constitution. The Fifth Amendment asserts that, “No person shall… be deprived of life, liberty, or property, without due process of law.” Bush’s military order clearly violated detainees’ Fifth Amendment rights because it failed to afford detainees due process. The Fifth Amendment refers to all persons, therefore noncitizens are guaranteed due process. The Sixth Amendment posits that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Thus, President Bush’s detention program violated the Sixth Amendment because it obstructed detainees’ right to trial by jury. Similar to the Fifth Amendment, the Sixth Amendment concerns the rights of all persons, even noncitizens, to trial by jury. President Bush’s violation of detainees’ constitutional rights is an example of a constitutional failure.

           

Second, President Bush’s detention program failed to adhere to the Framers’ intent. As aforementioned, Federalist No. 48, authored by James Madison, states that “the legislative, executive, and judicial departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time.” It is evident that the president infringed on the powers of the legislative branch under the Military Order of November 13, 2001. Further, due to Congress’ and the courts’ inability to adequately challenge the indefinite detention of suspected terrorists, the system of checks and balances praised by Alexander Hamilton in Federalist No. 51 proved to be violated by President Bush’s military order. Checks on President Bush’s authorization of a detention program for suspected terrorists proved highly limited in their scope. In a 6-3 decision, the Supreme Court ruled in Rasul et al. v. Bush (2004) that foreign nationals captured abroad possess the right to petition for the writ of habeas corpus. In a similar fashion, the Supreme Court, in an 8-1 decision, declared in Hamdi v. Rumsfeld (2004) that the Constitution afforded citizens, such as Hamdi, with the right to a hearing before a neutral decision maker to challenge his enemy combatant status. However, the judicial and legislative branches failed to preserve the system of checks and balances imagined by the Framers by failing to challenge the Military Orders of November 13, 2001 and the detention of suspected terrorists authorized by President Bush in their entirety. Therefore, Congress and federal courts exercised a significant degree of judicial and legislative deference and restraint.

 

Lastly, President Bush’s November 2001 military order violated the fundamental American political norm of maintaining a preference for constitutional democracy over authoritarianism. President Bush’s actions, in regard to the detention program he authorized, demonstrated a preference for authoritarianism as it emphasized a disregard for (1) individual rights and (2) limits on power. Therefore, the presidency of George W. Bush proved to characterized by constitutional failure as his detention program of suspected terrorists fails to (1) adhere to the Constitution’s text, (2) act in pursuance of the Framers’ intent, and (3) ensure the protection of fundamental political norms.

 

2. President Barack Obama:

 

President Barack Obama’s employment of military force in Libya demonstrated constitutional failure.

 

2a. Employment of Military Force in Libya:

 

On February 26, 2011, the United Nations Security Council (UNSC) adopted a resolution that condemned Muammar Mohammed Abu Minyar Gaddafi’s authorization of violence against civilians. Two weeks later, on March 17, 2011, the UNSC adopted an additional resolution that authorized military force against the Gaddafi regime to protect Libyan civilians. Two days later, on March 19, 2011, President Obama conducted airstrikes against Libya and employed the UNSC resolution to justify his use of force. To justify the president’s employment of military force in Libya, Principal Deputy Assistant Attorney General for the Office of Legal Counsel Caroline Krass authored an opinion that posited that President Obama acted within his constitutional power. She concluded that the president had the unilateral authority to employ military force when they determine that such force is in the national interest, unless Congress restricted such authority. The Obama administration contended that the employment of military force against the Gaddafi regime (1) promoted the credibility and effectiveness of the UNSC to foster international peace and security and (2) fostered security and stability in the Middle East.

           

President Barack Obama and Caroline Krass cited theories of broad emergency presidential power to employ military force in Libya. While they failed to subscribe to the unitary executive theory, they advanced the notion that, through unilateral action, the president had the authority to employ military force to protect American interests.

 

The employment of military force against Libya in March 2011 indicated a constitutional failure as it failed to (1) adhere to the Constitution’s text, (2) align with the Framers’ intent, and (3) protect fundamental American political norms. First, the Obama administration’s employment of military force in Libya violated the Constitution. Article II, Section 3 of the Constitution, known as the Take Care Clause, vests the president with the responsibility to “take care that the laws be faithfully executed.” Thus, President Obama failed to execute his constitutional duty because the employment of military force against the Gaddafi regime violated the War Powers Resolution (WPR) of 1973. The WPR authorizes the president to involve the nation in hostilities only pursuant to (1) declaration of war, (2) statutory authorization, or (3) a national emergency fostered by an attack on the United States, its territories, or its troops. Therefore, because Obama’s employment of military force in Libya failed to satisfy the aforementioned criteria, President Obama violated the WPR and failed to perform his constitutional duties under Article II, Section 3. However, the Obama administration claimed that airstrikes failed to constitute “hostilities” under the WPR. Yet, as Lou Fisher asserted, the Obama administration’s interpretation of the WPR failed to uphold meaningful limits on presidential power.

           

Second, President Barack Obama’s employment of military force against the Gaddafi regime in March 2011 failed to adhere to the Framers’ intent. President Obama and his administration disregarded the system of checks and balances constructed by the Framers of the Constitution and highlighted in Federalist No. 48 and 51 through their violation of congressional statutes. Lastly, President Obama’s authorization of force against the Gaddafi regime failed to protect fundamental American political norms. This use of force violated the norm of holding a preference for constitutional democracy over authoritarianism because it demonstrated a disregard for limits on power.

 

3. President Donald Trump:

 

President Donald Trump’s authorization of the travel ban highlighted constitutional failure.

 

3a. Authorization of the Travel Ban:

 

On January 27, 2017, President Donald Trump authorized the (1) prohibition of foreign nationals from seven Muslim-majority nations from entering the United States for 90 days and (2) admission of all refugees for 120 days. In response to Trump’s initial travel ban, courts issued stays to block certain components of his executive order. On March 6, 2017, President Trump issued a revised travel ban that removed Iraq from the list of nations whose citizens were banned from entering the United States for 90 days. However, hours before the revised travel ban was scheduled to take effect, a district court issued a stay because it asserted that the ban violated the Establishment Clause and the Immigration and Nationality Act. The Establishment Clause under the First Amendment of the Constitution bars the government from executing actions that favor one religion over another. While the travel ban experienced additional legal challenges, eventually, on June 26, 2018, in Trump v. Hawaii (2018), the Supreme Court ruled, in a 5-4 decision, that the third iteration of President Trump’s travel ban proved to be constitutional. In his concurring opinion, Justice Anthony Kennedy contended that “substantial deference… must be accorded to the Executive in the conduct of foreign affairs.” However, as Justice Sonia Sotomayor noted in her dissenting opinion, “a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.”

 

President Trump and his administration adopted theories of broad emergency presidential power. The Trump administration claimed superiority in the national security domain and asserted that the courts failed to possess the power to review President Trump’s unilateral actions concerning the execution of the nation’s foreign affairs. In a similar fashion, President Trump concluded that stays on his travel ban constituted judicial overreach.

 

The authorization of President Trump’s travel ban exemplified constitutional failure as it failed to (1) adhere to the Constitution’s text, (2) align with the Framers’ intent, and (3) protect fundamental American political norms. First, President Trump’s travel ban violated the Constitution. The First Amendment of the Constitution, embodies what is referred to as the Establishment Clause, which prohibits governmental actions that demonstrate religious preference. Due to President Trump’s prior statements in which he deemed the travel ban a “Muslim ban,” the authorization of the travel ban violated the Establishment Clause and, thus, the Constitution. Second, the Trump administration’s travel ban failed to act pursuant to the Framers’ intent as the Supreme Court’s deference to the president, in terms of the execution of the nation’s foreign affairs, is exemplified by Justice Anthony Kennedy’s concurring opinion in Trump v. Hawaii (2018). The Supreme Court disregarded the system of checks and balances forged by the Constitution’s Framers and illustrated in Federalist No. 48 and 51.

 

Lastly, the authorization of the travel ban violated the fundamental American political norm of the preference for constitutional democracy over authoritarianism. Trump’s travel ban conveyed a preference for authoritarianism because it illustrated a disregard for (1) individual liberties and (2) limits on power. Further, President Trump satisfied the four indicators of authoritarian behavior in the first two years of his presidency: (1) a rejection of democratic rules of the game, (2) denial of the legitimacy of political opponents, (3) toleration or encouragement of violence, and (4) readiness to curtail the civil liberties of opponents.

 

As a candidate, President Trump demonstrated a weak commitment to the democratic rules of the game through his attempts to undermine the legitimacy of the 2016 presidential election. He asserted that widespread voter fraud occurred during the election and, if he lost, refused to accept its outcome. Trump declined to accept Hillary Clinton, a partisan rival, as a legitimate political opponent and asserted that her prior "criminal" acts disqualified her from the office of the presidency. He refused to condemn the Unite the Right rally participants and, at his campaign rallies, incited his supporters to commit acts of violence against protesters. President Trump displayed his readiness to curtail the media's civil liberties through his desire to expand the nation's libel laws.

 

V. Conclusion

 

This article constructed and proposed a framework for defining and determining constitutional success based on three criteria: (1) adherence to the Constitution’s text, (2) pursuance of the Framers’ intent, and (3) protection of American fundamental political norms. When applied to the presidencies of George W. Bush, Barack Obama, and Donald Trump, it is evident that the United States has faced a degree of constitutional failure since the terrorist attacks on September 11, 2001.

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