A very interesting article by my colleague Prof. Michael McConnell (Stanford Law, Hoover) in the City Journal; in addition to being a leading scholar of the Religion Clauses and constitutional law generally, Michael has written extensively on Presidential power. Here are the opening paragraphs, though the whole article is much worth reading:
Twenty-five years ago, we suffered the most devastating attack on U.S. soil since Pearl Harbor. Ratcheting up the shock from the death and destruction at the heart of Manhattan was uncertainty about the future: When might the terrorists strike again? Three days after the attack, President George W. Bush visited Ground Zero and delivered, impromptu, some of the most stirring words any president has spoken. Climbing atop a pile of rubble with a megaphone in hand, he was interrupted by voices in the crowd, complaining that they could not hear him. “I can hear you!” Bush responded. “I can hear you, the rest of the world hears you, and the people who knocked these buildings down will hear all of us soon.” Loud chants of “U.S.A., U.S.A.,” ensued.
That same day, the president declared a national emergency. The attacks, he explained in Proclamation 7463, and the “continuing and immediate threat of further attacks,” required the government to activate extraordinary powers, effectively putting the nation on a wartime footing. The directive would lead to far-reaching changes to the national security apparatus, to domestic surveillance practices, to immigration and travel policies—and to a string of wars that seems never to end.
Bush’s statement that the dangers were “continuing” as well as “immediate” proved more prescient than he could have known. We live in the shadow of the 9/11 emergency a quarter of a century later. Every president since Bush has extended the emergency declared that day. The extraordinary powers that the nation’s 43rd president invoked on September 14, 2001, have become ordinary.
The effect is to concentrate power in the hands of one person, the president of the United States. In one sense, this would be no surprise to the Framers of the U.S. Constitution. They created a single executive in part because the contingencies of public affairs demand what Alexander Hamilton called “decision, activity, secrecy, and dispatch”—features characteristic of a one-person executive but inherently lacking in a numerous legislative assembly. Hamilton further pointed out that “energy in the executive … is essential to the protection of the community against foreign attacks.”
Yet the Constitution contains no emergency clause. An emergency may provide occasion for the exercise of powers that are latent in ordinary times, but it does not create new constitutional powers. This, too, was deliberate. As Justice Robert Jackson wrote during the Korean War, the Founders “knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.” …
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