In the aftermath of 9/11, the George W. Bush and Obama presidencies have endorsed expansive views of presidential power. In fact, neither presidency has recognized clear limits on presidential power in the context of national security. The Bush administration was marked by the unitary executive theory, a theory of essentially unrestrained presidential power championed most prominently by Vice President Cheney and lawyers in the Justice Department. The unitary executive theory, which has its modern origins in the Iran-Contra scandal, was applied by the Bush administration to stand for the principle that the president cannot be restrained by Congress or the courts in defining the scope and limits of presidential power. For example, John Yoo, an Office of Legal Counsel lawyer from 2001 to 2003, concluded that the president has plenary or complete power to make decisions about when and how to use military force (even preemptively), whether to waterboard prisoners, and whether to order warrantless surveillance. Most controversially, Yoo's memos claimed the president had the independent authority to set aside criminal laws that, in the president's view, encroached on executive power. This, of course, would undermine the separation of powers and checks and balances, effectively placing the president above the law.
Given the state of the post-9/11 era to date, critics of unrestrained presidential power will rightly be skeptical of presidential hopefuls in 2016 who promise more of the same. Unfortunately, one potential candidate, New Jersey Gov. Chris Christie (R), suggests that he would offer just that. In a recent speech, Christie suggested that Obama's mistake in Syria was a failure to act unilaterally. As Time reported: "Christie criticized Obama for failing to follow through on his threat to punish Syria for using chemical weapons on its citizens, acknowledging there may be a debate about drawing a 'red line.' 'Here's something that should not be up for debate, that once you draw that red line, you enforce it, because if you don't, America's credibility will be at stake and will be at risk all over the world,' he said." In fact, Obama correctly asked for congressional approval before ordering military action. Christie seems to accept the misguided premise that foreign affairs and national security are uniquely the province of the president, declaring that "Foreign policy and America's role in the world is something that is often not popular to discuss in political campaigns. ... But I suspect that every person who has had the opportunity to lead this country recognizes fairly early on that it is that role that will define the character and the strength of their leadership." This is dangerous ground. There is a common misconception that the president enjoys plenary power in the field of foreign affairs — in fact, the Supreme Court seems to have endorsed that notion in a 1936 decision which describes the president as the "sole organ" of foreign policy, citing a speech John Marshall gave in 1800 that used that term. But the sole organ doctrine depends on taking Marshall's speech out of context and, in any event, flies in the face of the Constitution, which quite consciously divides foreign affairs powers between Congress and the president.
Christie is right that questions of presidential power are unlikely to get much attention in the 2016 election — unless critics of unrestrained presidential power force the issue. For those of us who believe the Bush and Obama presidencies have created a dangerous precedent, it is essential to criticize presidential hopefuls who endorse expansive presidential power. It is past time to restore the constitutional balance, to insist that presidents reject unilateral action outside of the emergency context. Presidential candidates who suggest otherwise are getting the Constitution wrong and promising to continue an era of unrestrained executive power.
Edelson is an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.