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Presidential Power
Dr. Scott R. Bowman
The War on Terrorism
Conventional wars have foreseeable conclusions; they typically have
a beginning, middle, and end, not unlike a game of chess.
A war against terrorism is analogous to playing the card game "war"
with a potentially endless supply of cards. The game will end when
one player possesses all of the cards, but that outcome assumes
that one knows how many decks are in play.
An ongoing war against global terrorism that has no end in sight
thus poses the prospect of an indefinite state of national
emergency.
What are the implications for presidential power?
The War on Terrorism and the Constitution
“2001 Joint Resolution to Authorize the Use of United States Armed Forces
Against Those Responsible for the Recent Attacks Launched Against the United
States“ (2001 AUMF)
". . . the President is authorized to use all necessary and appropriate force
against those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against the United States by
such nations, organizations or persons."
Although not a formal declaration of war, Congress invoked the authority of the
War Powers Resolution of 1973, which identifies "specific statutory
authorization" as one means by which the President may introduce U.S. Armed
Forces into combat. Congress, in effect, had declared war against enemies yet to
be identified.
2002 Joint Resolution
"Joint Resolution To Authorize the Use of United States Armed Forces Against
Iraq" (2002 Joint Resolution). Significantly, this resolution against Iraq would
appear to provide support for the Bush doctrine that the United Sates is
indeed "at war" with enemies unknown, unnamed, and perhaps not even
born.
“the United States is determined to prosecute the war on terrorism and Iraq's
ongoing support for international terrorist groups combined with its
development of weapons of mass destruction in direct violation of its
obligations under the 1991 cease-fire and other United Nations Security
Council resolutions make clear that it is in the national security interests of
the United States and in furtherance of the war on terrorism that all relevant
United Nations Security Council resolutions be enforced, including through
the use of force if necessary [italics added]."
Use of Military Force Pursuant to the 2001 AUMF
The 2001 AUMF is still in effect and the White House could invoke
it once again for the purposes of conducting larger ground
operations against the Islamic State. The 2001 AUMF has neither a
sunset date nor any restrictions on the type of force that it allows,
and we already know that the White House believes that it serves
to authorize military force against the Islamic State.
The 2001 AUMF was invoked 37 times in the Bush and Obama
Administrations to carry out military actions.
“PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO
THE UNITED STATES” Trump’s Muslim Ban
By the authority vested in me as President by the Constitution and laws of the
United States of America, including the Immigration and Nationality Act (INA), 8
U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect
the American people from terrorist attacks by foreign nationals admitted to the
United States, it is hereby ordered as follows:
Section 1. Purpose. The visa-issuance process plays a crucial role in detecting
individuals with terrorist ties and stopping them from entering the United
States. Perhaps in no instance was that more apparent than the terrorist attacks of
September 11, 2001, when State Department policy prevented consular officers from
properly scrutinizing the visa applications of several of the 19 foreign nationals who
went on to murder nearly 3,000 Americans. And while the visa-issuance process was
reviewed and amended after the September 11 attacks to better detect would-be
terrorists from receiving visas, these measures did not stop attacks by foreign
nationals who were admitted to the United States.
Hearings on February 7, 2017
• TRO filed by State of Washington and joined by Minnesota; district court
held hearing and granted temporary TRO; Executive appealed and asked
for an emergency stay of TRO
• 9th Circuit denied immediate administrative stay and set matter for oral
arguments in San Francisco (Feb. 7)
• If stay is denied, most likely will be appealed to Supreme Court
• In any event, the case will be heard on its merits in district court – Feb 7
hearings are only about the stay
• The purpose of a TRO is typically to “preserve the status quo” until a
matter can be adjudicated or resolved
• The President must demonstrate the likelihood for imminent “irreparable
harm” to the country to justify removing the TRO
The Justice Department is expected to argue that Judge Robart’s TRO, which
it is calling an injunction, is too broad and it goes against the President’s
powers, as granted to him by Congress, as “a lawful exercise of the
President’s authority over the entry of aliens into the United States and the
admission of refugees.”
Washington state is arguing that “that courts have both the right and the
duty to examine Defendants’ true motives”; that the Justice Department’s
defense of the order will fail on constitutional due process, equal protection,
and religious discrimination grounds; and that the Justice Department is
incorrectly interpreting the Immigration and Nationality Act as a source of
presidential power.
Impeachment
Article II, Section 4, of the United States Constitution states:
"The President, Vice President, and all civil Officers of the United States shall be removed
from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes
and Misdemeanors."
An impeachment is the same as an indictment, a formal charge of an alleged violation of
the law.
The House of Representatives has the sole power of impeaching, while the United States
Senate has the sole power to try all impeachments. The removal of impeached officials is
automatic upon conviction in the Senate.
Impeachment requires only a simple majority vote; whereas, a conviction requires a 2/3
vote of those present.
Since 1789, 62 cases have been brought, 19 of which resulted in impeachments with only 8
convictions.
Impeachment Proceedings and Removals are not subject to review by the judiciary.
Types of Impeachment Resolutions
The type of impeachment resolution determines the committee to which it
is referred. A resolution impeaching a particular individual is typically
referred to the House Committee on the Judiciary. A resolution to authorize
an investigation regarding impeachable conduct is referred to the House
Committee on Rules, and then to the Judiciary Committee.
The House Committee on the Judiciary, by majority vote, will determine
whether grounds for impeachment exist. If the Committee finds grounds
for impeachment, they will set forth specific allegations of misconduct in
one or more articles of impeachment. The Impeachment Resolution, or
Article(s) of Impeachment, are then reported to the full House with the
committee's recommendations.
Presidential Impeachments
• Andrew Johnson (1868 -- charged with violating the Tenure
of Office Act; acquitted)
• Richard Nixon (1974 -- proceedings begun but resigned
before being formally impeached)
• Bill Clinton (1998-99 -- charged with perjury and obstruction
of justice; acquitted)
Other Examples of Impeachable Offenses
• Drunkenness and unlawful rulings (Judge John Pickering, 1803;
convicted)
• Political bias and arbitrary rulings; promoting a partisan political agenda
on the bench (Associate Justice Samuel Chase; acquitted, 1805)
• Tax Evasion (Judge Harry Claiborne; convicted, 1986)
• Perjury (Judge Walter Nixon; convicted, 1989)
• Accepting a bribe; committing perjury during the resulting investigation
(Judge Alcee Hastings; convicted, 1998)
• Sexual assault (Judge Samuel Kent, resigned 2009)
• Making false financial disclosures (Judge Thomas Porteous; convicted
2010)