Thomas P. Crocker—
One of the intriguing developments during the COVID-19 crisis is how absent claims about presidential power to solve national security crises have been. There have been no calls for exercising unilateral and exclusive presidential power to engage in possible extralegal action deemed necessary to save American lives under attack—not by terrorists, of course, but by a deadly invader nonetheless. This emergency has been constitutionally constrained, both in action and in rhetoric.
By contrast, in the wake of the attacks on September 11, 2001, President Bush embarked on a number of counterterrorism policies and practices premised on the unilateral and exclusive power Article II of the Constitution was said to confer upon the office of the president. In time, Americans would learn that executive officials had interrogated terrorism suspects using methods such as waterboarding that constituted torture, had authorized surveillance practices in secret that superseded existing statutory limits, and had exceeded presidential authority in holding terrorism detainees at Guantanamo Bay without any due process or federal court jurisdiction. Subsequently, President Obama asserted the unilateral power to target a U.S. citizen abroad for lethal attack by unmanned aerial drones without any judicial process. All of these assertions of presidential power were premised upon the idea that necessity justified altering or exceeding any constraining legal limits. Department of Justice lawyers argued that because the president has the primary responsibility for protecting the nation, the president must also have the requisite power to do whatever is necessary to provide security. Faced with a physical attack that threatened American security, necessity played an outsized role in shaping presidential actions that often obscured how constitutional values, principles, and practices play a role in structuring appropriate responses to the inevitable crises of human affairs.
Do these different approaches to assertions of presidential power during national emergencies—ongoing COVID-19 as distinguished from post-9/11—mean that necessity has been tamed, that presidents will be less inclined to make outsized claims that they have power to do whatever is necessary? This is a doubtful proposition. President Trump asserted in July 2019 that “I have an Article II, where I have the right to do whatever I want as president.” Such an assertion of presidential power goes beyond anything either Presidents Bush or Obama claimed on behalf of their counterterrorism policies. Any explanation of these different approaches must highlight the nature of the choices a sitting president is willing to make in light of national character and constitutional values.
President Bush, for example, could call upon a national commitment “to uphold the values of America” because “we are in a fight for our principles, and our first responsibility is to live by them,” even though he authorized interrogations that constituted torture. And President Obama could admonish that “in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values,” even as he authorized bulk surveillance of all Americans’ communication metadata. But how these values are realized in practice is subject to the ideas we have on hand about how necessity relates to constitutional commitments. As Milton Friedman suggested, “only in a crisis—actual or perceived—produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around.” What are these ideas we have at hand?
One is that in the realm of counterterrorism, presidents are to be given greater latitude to act, even if that means contravening the law because of an overriding obligation to protect national security. On this view, liberty is to be balanced against security, while at the same time security is to be given priority over liberty, and the president is owed deference in exercising his exclusive authority over matters of security. By contrast, an alternative approach is to put necessity in its place within constitutional reason and practice, recognizing that in adapting to the crises of human affairs, the Constitution does not give overriding priority to claims of necessity. Rather, claims that actions are justified because they are said to be necessary must be analyzed in light of the values, character and commitments that define the meanings of American constitutionalism.
In this way, the views one takes of presidential power are themselves matters of national security—what kind of security we will have, reflective of which values, in pursuit of what goals. It is this latter point that the differences between claims to presidential authority between the crises that COVID-19 and 9/11 each occasioned become most interesting. When the threat is a terrorist group capable of killing several thousand Americans, President Bush claimed that necessity gave him power to do whatever it takes to protect national security. But when the threat is a public health emergency capable of killing at least several hundred thousand Americans, necessity became mute in the face of claims that Americans must have liberty to go about their daily lives unaffected by national regulations. This difference is puzzling in light of the magnitude of the harm, and in some cases, the minimalism of the personal intrusion (in the case of a possible national mask mandate).
Whether Americans can be made more secure against a spreading virus that knows no state boundaries is undoubtedly a matter of physical security just as the threat of terrorism is. In each case, claims about necessity and liberty are being made. But when the issue is domestic policy, ideas about limited government and individual freedom have overwhelmed all attempts even to talk about, for example, a national mask mandate. If such an outcome reflected a reconsideration of the relation between presidential power to claim necessity and the constitutional limits derived from normative arguments about what is appropriate, then Americans could be heartened by the continuing constitutional conversation about how best to overcome necessity. But if such a reevaluation of necessity is an accident of President Trump’s politics, then even though constitutional implications abound, they are achieved without the “reflection and choice” that Alexander Hamilton admonished in Federalist 1 is constitutive of good government. When President Trump proclaims that he has the “right to do whatever [he] want[s],” the implication of his own logic is that he does not want to use the resources of government to make Americans more secure, underscoring the presence of constitutional vulnerability both to the ideas we have on hand and to the sitting president’s own constitution.
A change to a Biden Administration will undoubtedly bring about a new presidential constitution—one that might better balance the necessities of the situation with the Constitution’s commitment to a proper preservation of liberty through protecting security in addressing not only the COVID-19 pandemic, but any future terrorist threat. Either way, what actions and policies are claimed as necessary (or not necessary) will have greater legitimacy the more they cohere and fit with the Constitution’s principles and values that define not only contestable conceptions of presidential power but also the character of American constitutionalism itself.
Thomas P. Crocker is professor of law at the University of South Carolina Law School.