The Bush Administration has made strong claims about the “inherent” power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold. Thus it has been argued that the President’s inherent authority includes (1) the power to go to war without congressional authorization, (2) the power to engage in foreign surveillance, (3) the power to detain “enemy combatants,” including Americans captured on American soil, without access to a lawyer or to hearings, and (4) the power to engage in coercive interrogation of enemies, even torture, when necessary.
One of the jobs of the Department of Justice is to protect the constitutional prerogatives of the President, and after 9/11, it is hardly surprising to find bold claims of this sort. My first goal here is to make some progress in understanding the legal issues by sketching the general framework under which they might be analyzed. My second goal is to suggest that it is often best to refuse to resolve issues of inherent authority, and to answer the legal question while leaving those issues undecided.