Based on how presidential power has operated in practice, it would be easy to assume that decisions about how best to defend the nation, especially decisions about the use of military force, are "for the president alone to make," as a 2001 Department of Justice memo put it. Beginning with the Korean War, presidents have frequently authorized the use of military force without congressional approval — Grenada, Panama, Somalia and Yugoslavia are just some pre-9/11 examples. This is despite the fact that the Constitution assigns Congress the power to declare war, and that the historical record makes clear the framers only intended that the president would have unilateral authority to use military force in response to a sudden attack when there was no time to gain congressional approval.
Unilateral presidential action has extended beyond the use of military force, especially since the 9/11 attacks. President George W. Bush authorized warrantless surveillance, waterboarding and sleep deprivation of prisoners, all in violation of statutory laws passed by Congress. President Obama ordered the use of military force against Libya in 2011 and against ISIS in Iraq and Syria since 2014, both times without congressional approval. Former Obama administration officials have claimed the president has the authority to close Guantanamo and move prisoners to detention facilities in the United States, despite statutory provisions prohibiting such action (President Obama has not taken such action).
Some observers of presidential power conclude that, in the 21st century, legal limits on presidential power are either no longer workable, no longer advisable or both. They suggest that the only practical way to limit presidential power is through "political" actions — the force of public opinion and/or public criticism by members of Congress that does not result in actual legislation.
In fact, it is not necessary to give up on the constitutional system of checks and balances, the notion that the president is, unlike a monarch, subject to the rule of law like everyone else. Although presidents, especially since 9/11, have proven to be proficient at finding ways around statutory and constitutional limits on their power, there is also reason to be hopeful that it remains possible to hold presidents accountable to the rule of law. Following are some specific ways in which this can be done:
•Congress is the institution best positioned to set legal limits on the president through its specific constitutional powers related to national security. Although Congress has been far too passive and deferential in this area, it has also shown it is capable of acting when moved to do so. In August 2013, 140 members of Congress signed a letter to President Obama declaring that he could not follow through on a plan to use military force against the Assad regime without congressional approval. President Obama backed off and agreed to seek such approval.
•The press can play an important role by informing the public and helping move Congress to act. For instance, reporting on the Edward Snowden revelations in 2013 helped move Congress to pass legislation formally ending the bulk metadata collection program as run by the executive branch.
•The public must make their wishes known to elected officials. One factor moving both members of Congress and President Obama during the 2013 Syrian episode may have been public opposition to military action.
•Executive branch lawyers all too often seem focused solely on finding ways for presidents to do what they want, regardless of legal limits in place. But some executive branch lawyers have sought to rein in presidential action. In 2004, Justice Department lawyers successfully pressured President Bush to change aspects of a secret surveillance program that violated federal law. In 2011, a Justice Department lawyer told President Obama that military action against Libya was constrained by the War Powers Resolution (though President Obama found a different executive branch lawyer who disagreed).
•Though judges are often reluctant to weigh in on national security matters, in four cases decided since 9/11, the Supreme Court rejected the idea of unrestrained presidential power, emphasizing checks and balances. However, these decisions have had a limited effect, and the courts need to insist on meaningful parameters — which means Congress has to take action to back up judicial decisions in this area.
As we prepare for the next president, whether his or her actions in the name of national security will be accountable to the law will be up to all of us. Recent events should make us concerned, but also hopeful that such limits can be put in place.
Chris Edelson (firstname.lastname@example.org) is an assistant professor of government in American University's School of Public Affairs. His latest book, "Power Without Constraint: The Post 9/11 Presidency and National Security," was published in May 2016 by the University of Wisconsin Press.