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In Times of Crisis, How Much Power Does the President Have?
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11934 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
8 / 1987 |
2,705 Words |
| Author
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Walter Berns
Walter Berns is John M. Olin Professor at Georgetown
University and adjunct scholar at the American Enterprise
Institute. |
Lt. Col. Oliver North may or may not have broken the law, but that he was a hero Patrick J. Buchanan had no doubt.
Unlike the other members of the Reagan White House - he was still the communications director at the time - Mr. Buchanan defended Col. North without qualification. Col. North, he said, could be likened to those Americans who, in defiance of the law, "ran escaped slaves up the underground railroad" or, even more to the point, to Franklin D. Roosevelt, who, before our entry into World War II, "secretly ordered American destroyers to hunt down German submarines in the North Atlantic and to relay the information to the British Fleet."
Presidents, he suggested, have frequently acted in defiance of the law, and had he been concerned with defending executive power rather than Oliver North, Mr. Buchanan might have gone on to argue that, under the constitution, they are entitled to do so.
Specifically, he might have argued that presidents are endowed with the prerogative: "[The] power to act according to discretion for the public good, without the prescription of the law and sometimes even against it."
But, these words appear in John Locke's "Second Treatise of Civil Government," not in the Constitution of the United States. The Constitution nowhere gives the president such powers - not expressly, at least - nor does it, like the Canadian Bill of Rights, acknowledge the rights of the government, by simple proclamation, to declare a state of emergency and to exercise the powers needed to cope with it. (Those powers prove to be almost unlimited. In October 1970, for example, the Trudeau government simply declared the Front de Liberation du Quebec to be an illegal organization and issued regulations empowering the army, as well as the police, to search and arrest without warrant and to detain persons without charge for a period of up to 21 days.) No act of Congress gives such powers to the president of the United States, and no clause of the Constitution appears to acknowledge the need for them.
Historical Precedent
How, then, to account for the presidency of Abraham Lincoln? Having sworn "an oath registered to Heaven" to preserve, protect and defend the Constitution of the United States, Lincoln, on his own authority, proclaimed a blockade of Southern ports, enlarged the size of the Army and Navy by some 41,000 men, spent money that
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