NCPA - National Center for Policy Analysis

Precedent, Courts, Back Bush Security Actions

December 6, 2001

Questions have arisen in Congress about the extent to which President Bush and his administration can expand special powers -- which might infringe on such civil liberties as due process and equal protection under the law -- during a time of war. Some, including Sen. Patrick Leahy (D.-Vt.), have pushed for hearings and congressional oversight.

However, supporters cite a number of sources to argue the president's powers as commander-in-chief are broad enough to justify many of the actions the Bush administration has announced since September 11.

  • In 1787, Alexander Hamilton wrote in Federalist No. 23, "The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed."
  • In 1936, in United States v. Curtiss-Wright Export Corporation, the Supreme Court ruled the president had broader powers in dealing with foreign affairs than in domestic affairs, and may not be constrained by the language of the Constitution.
  • The Court upheld the president's use of military tribunals in Ex Parte Quinn in 1942, noting the president as commander in chief has "the carry into effect...all laws defining and punishing offenses against the law of nations, including those which pertain to the conduct of war."
  • Two years later, in Korematsu v. United States, the Court approved the internment of Japanese-Americans during World War II.

Observers also believe Bush would have the same backing. According to Robert J. Pushaw, law professor at Pepperdine Law School, "The president's power in this context is exceedingly broad. Unless a court would conclude there is a flagrant and systematic violation of individual rights, the courts would defer to the president's authority."

Source: William Glaberson, "Groups Gird for Long Legal Fight On New Bush Anti-Terror Powers," and "Support for Bush's Antiterror Plan," New York Times, December 5, 2001.


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