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November 2013

The Imbecilic Executive

by Saikrishna Bangalore Prakash
99 Va. L. Rev. 1361 (2013)
Article

The President seems tailor-made for emergencies.  He alone is capable of responding to a crisis with the necessary energy, decision, and force, all the while accountable to Congress and the people.  The Constitution not only obliges him to take a solemn oath to preserve, protect, and defend it, it grants him a crucial role in thwarting rebellions and invasions.   Little wonder that on some accounts, the Founders ceded the President a broad emergency power, either via the grant of executive power or the Commander in Chief Clause.  Surprisingly few have examined the claim in any detail.  This Article brings to light evidence on the President’s role in emergencies, concluding that the original Constitution rendered the Presidency constitutionally imbecilic.  At the founding, the President lacked constitutional authority to seize property, suspend habeas corpus, or impose martial law, whatever the circumstances.   We know this because the Presidency’s immediate predecessors also had grants of executive power and commander in chief authority.  Nonetheless, they were decidedly feckless in crises, at least as a matter of their constitutional authority.  The only time they could seize property, detain indefinitely, or try civilians before military courts was when their legislatures authorized such acts.  Because the Constitution never marked a departure from the previous regime—because it never expressly granted the President such far-reaching crisis powers—it implicitly incorporated the pre-constitutional regime of impotent executives.  Indeed, for decades after ratification, it remained clear to many that the Constitution never granted the President authority to seize property, suspend habeas corpus, or try civilians before military courts.  Gradually, this imbecilic theory of Article II yielded to more robust conceptions of presidential power, with President Abraham Lincoln pressing executive crisis authority to new heights during the Civil War. Lincoln’s example looms over modern discussions of presidential emergency power, making respectable what once was unthinkable.  The imbecilic executive has been supplanted by a muscular crisis executive.

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