Jean Edward Smith: Stretching Executive Power in Wartime

Roundup: Historians' Take

[Jean Edward Smith, the John Marshall Professor of political science at Marshall University, in Huntington, W. Va., is the author of 12 books, including biographies of Ulysses S. Grant, Chief Justice John Marshall and General Lucius D. Clay. His latest book is “F.D.R.”]

“The Constitution has never greatly bothered any wartime president,” wrote Francis Biddle, F.D.R.’s attorney general during World War II. Biddle was writing about Roosevelt’s shameful 1942 decision to evacuate Japanese-Americans from the Pacific Coast and place them in internment camps. But Biddle’s comment applies to all presidents in times of crisis. National survival or, perhaps more accurately, the president’s perception of national survival always takes precedence. George W. Bush has been no exception.

In 1798, during the undeclared war against France, President John Adams supported passage of the Alien and Sedition Acts, which criminalized political dissent and gave the president a free hand to deport any noncitizen he deemed “dangerous to the peace and safety of the United States.”

Ten years later, President Thomas Jefferson sought to enforce the Embargo Act, which prohibited trade with Great Britain, by charging those who violated it with treason – an egregious example of executive overreach that the federal courts quickly rejected.

Andrew Jackson’s contempt for the treaty rights of the Cherokee Nation is a familiar story. Less well-known is Jackson’s attempt to halt the distribution of abolitionist literature in the South by censoring the mail.

Abraham Lincoln suspended the writ of habeas corpus during the Civil War, and in several states he ordered the trial of civilians by military tribunals. Although Congress explicitly authorized Lincoln to suspend the writ, it was a draconian measure that the president believed essential to preserve the Union. “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” he asked....

There is an old legal maxim that in time of war the laws are silent: Inter arma silent leges. But the crucial issue is the extent to which the nation is threatened. In the cases of Lincoln and Roosevelt, the survival of the United States hung in the balance. A president will be forgiven by his contemporaries, though not necessarily by later generations, for acting outside the law when that is the case. As more than one Supreme Court justice has said, the Constitution is not a suicide pact. When national survival is not threatened, however, it is essential for a chief executive to resist an unwarranted enlargement of his powers.

A national security concern does not become a war simply because it is baptized as such. President George W. Bush’s questionable use of the metaphor “war on terror” to justify indefinite detention of suspects, warrantless eavesdropping and spying on the reading habits of citizens could invite from historians even more opprobrium than they have cast on the repressive actions taken by other presidents when the survival of the United States was at risk.

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