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The events of 9/11 changed America's political and legal landscape immensely. This period saw the emergency of policies that were aimed at ensuring the national security of the Nation. Among the contentious issues emerging is the historical debate of the presidential inherent power concept. According to pro-inherent power advocates, the constitution does in fact give the president authority to independent or inherent powers especially in situations where national security is threatened. This excerpt will look at the basis and relevance of the concept of presidential inherent power in modern America.
PRESIDENTIAL INHERENT POWER
In modern America, the bush administration is prominent although not the only one that invoked inherent power of the president. This allowed for: military commissions creation as well as determining their procedures and riles; designate suspected American citizens as enemy combatants and further arresting them without trial, charges or representative counsel indefinitely; extraditing suspects to other countries for possible torture and interrogation; it also authorize taping of phone conversation by the National Security Agency. This presents a very contentious situation.
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The pro-inherent powers argument in post 9/11 America relies heavily on the decision reached by the Supreme Court in the United States v. Curtiss-Wright Export Corp. case in 1936. Justice George Sutherland cited the statement made by John Marshall, who would go on to become the chief justice in the Supreme Court, in 1800. This statement implied that the president had the duty under the constitution to ensure that a treaty entered into by the United States containing extradition provisions was adhered to faithfully. It should be noted that the statement was not meant to imply anything outside of this meaning. This has not been the case as this statement has been used severally in the recent past to defend extra-constitutional, exclusive as well as inherent power fro the president. This places the office outside the Congress' as well as the court's control.
The doctrine of "sole organ" has feature recently in three legal arguments: during the bush administration; by Judge Richard P.; and also from John Yoo, a law professor. All the three cases invoke Curtiss-Wright with an aim of vindicating the inherent presidential power in matters of national security and in foreign affairs. When The New York Times went public the story of about how the National Security Agency was eavesdropping, the Justice Department through the Office of Legal Counsel responded by issuing a white paper that justified the program by NSA, terming it legal. This document indicates that the president possesses well-recognized inherent power that is derived from the Constitution as the country's Commander in Chief as well as the sole organ in foreign matters for the Nation.
A law suit in California challenged the NSA operations terming it unconstitutional. The Justice Department responded by arguing that the privilege of state-security are derived from central aspects of responsibilities of the Executive under the Constitution's Article II as the sole organ for foreign affairs representing the Nation and as the Commander in Chief. In the Curtiss-Wright Case, the Supreme Court indicated that the successful revolution against Great Britain by the United States allowed it to be a sovereign nation, with the power that pertains to this. This means that such power was not granted by the constitution but rather by the nation which came prior to that. This was dicta rather than the court's "holding". In addition to this, it is important to note that in 1776, the sovereign powers came initially to the separate states and to the Continental Congress and not to the President as such a position did not yet exist.
According to Posner, National Defense, which is not limited only to the defense against enemies in the human form, is one the most important sovereign powers that is traditionally vested in the executive. The King of Britain in his right exercised this sovereign power in matters if national defense. This was until the Framers rejected this model. In America, national security sovereignty is placed the people and also divided among the Courts, the Congress and the president.
An analysis of Marshall's statement indicates that it does not advocate for the president to have independent or inherent power to make foreign policies. In fact, he recognizes this power in Congress indicating that the Congress has authority to take the Nation to war in Talbot vs. Seeman (1801).In 1804, during the Little vs. Barreme case; he also indicated that in a situation where a presidential proclamation conflicts with a Congress-enacted statute even during a time of war, the stature would prevail. The Curtis-Wright decision, even though cited routinely as the reason for the existence of presidential inherent power in matters of national security, it is important to note that it was not made in relation to the independent power of the president. However, Justice Sutherland who ruled on the merits, went ahead to champion the extra-constitutional, independent and inherent powers of the presidential in a 19 pages of dicta. The Youngstown Sheet and Tube Co. v. Sawyer case in 1952 recognizes that these dicta have no authority. According to Justice Robert Jackson, the Curtiss-Wright decision only allows the president to act in matters of external affairs even without the authority of the Congress but not in contradiction to a Congressional act.
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It is apparent the concept of inherent power to the president in matters of national security provides an attractive solution to the security dilemma that faces America today. However, the concept itself is often derived from articles and decision in history that bears no relation to the problems that are being faced current. Justification of such a power would only open the system to abuse by the office of the president without the checks and balances that are presented by Congress and is as such unconstitutional.