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Limits on Executive Power: Interbranch Politics and the Threat to National Security

National Security in the United States is a multifaceted and varied area, intertwining legislation, judicial decisions, and executive action.  The U.S. government’s three branches, therefore, must work together on national security issues.  However, like most other political hot potatoes, the branches compete to be top dog rather than come to a sound solution on the matters at hand.  Limiting executive power within the context of the War on Terror stands as one of the more indicative aspects of this competitive behavior.

In the early years after the 9/11 Terrorist Attacks, Congress, the Court, and the Bush Administration had a contentious back-and-forth series of overriding power plays.  When the Bybee Memo was published in 2002, it became clear that the president powers were at their lowest ebb, where the president is solely relying on his inherent powers because he is acting against Congress Acts.  The president powers are especially critical in times of war, and the Bush Administration wanted to put Congress in its place.

After the 2004 Supreme Court decisions in Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush, executive power evolved significantly.  Before these decisions, the government’s position was that everything it was doing was unreviewable, i.e., that it was outside of the Court’s purview.   Now, all of a sudden, the Court(s) have something to say.  Now, legal arguments emerge, defending the President’s power.

Then, interbranch politics kicked back in, and Congress wanted to make sure they were top dog.  In July 2004, Congress established Combatant Status Review Tribunals (“CSRTs”) to determine whether detainees are enemy combatants.   Then, in December 2005, Congress enacted the Detainee Treatment Act (“DTA”), which provides for an appeal of a CSRT’s final determination to the D.C. Circuit.   The DTA also provides for an appeal of a military commission conviction.  In an effort to thwart the Supreme Court’s decision in Rasul, the Act precludes federal jurisdiction.

These series of events serve as a perfect example of when the three branches are too busy trying to one-up the other then focus on coming to a rational solution.  Post 9/11, we saw the height of executive power in the War on Terror, and then we saw the Supreme Court limiting that power, thus rejecting the rise of executive power in a few short years.

In all, the big question to ask is when have limits on executive power possibly gone too far?  Recently, President Obama has publicly endorsed the appointment of Loretta Lynch to secede current U.S. Attorney General, Eric Holder.  However, Republications in Congress have delayed the process, using the appointment as an opportunity to bargain with the executive branch:  the Republications plans to hold the 130-day delay as a bargaining chip due to concerns over Obama’s executive order on immigration.  Particularly, Senate Majority Leader Mitch McConnell has paused discussing the nomination in favor of entertaining a bill called the Justice for Victims of Trafficking Act.

President Obama has cited this action as a threat to our national security.   Although the Republicans’ dragging their feet may not readily appear as a threat to our country’s security, an overall theme is still presented:  like the back-and-forth seen after 9/11, interbranch politics continue to compel our nation’s decision-makers to substitute doing “what’s best” for “what’s in our party’s/branch’s best interest.”  Once these branches can learn to work together, on a bipartisan playing field, our national security will achieve new heights in efficiency and effectiveness, and thus, stability and security.

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