Unitary executive theory

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See also: Prerogative power

Unitary executive theory is a U.S. legal doctrine derived from the English concept of prerogative power, which gives the President the right to operate in a supra-legal manner. Most, but not all, U.S. examples are related to warfare, and advocates of the theory claim it was the intent of the Framers. There is, indeed, substantial evidence that the Framers had a view that the ultimate executive authority would reside in an individual rather than a council, but much less evidence that they believed the executive had significant unilateral authority, not subject to review by other branches of government.

The buck stops here
— Sign on the desk of Harry S Truman

There are several ways to exert unitary executive power. The most public are signing statements, which are overt declaration of how and if the President intends to comply with legislation. Also rather public are military actions taken beyond immediate self-defense, such as sending additional forces to the Korean Peninsula during the Korean War, or launching retaliatory strikes after the Gulf of Tonkin Incident. More controversial are covert actions taken without the knowledge of Congress, or even in opposition to Congressional directives (e.g., the Boland Amendment forbidding U.S. aid to the Nicaraguan Contras.

While checks and balances are indeed a basic Constitutional concept, some powers indeed are unique to a given branch. The power to pardon, for example, is unique to the President, as the the Supreme Court of the United States noted in INS v. Chadha.[1]

The first clear major war started on sole Presidential authority was the Korean War; the need to respond quickly to nuclear threat caused further delegation during the Cold War, but Congress began to challenge the authority after the Vietnam War with the War Powers Resolution; Lyndon B. Johnson had made major combat commitments with the authority of the Gulf of Tonkin Resolution, later seen as given in haste.

Some go beyond the unitary theory to speak of unilateral Presidential authority. [2] One American political figure who has supported strong authority for decades is Dick Cheney. [3]

Constitutional background

Alexander Hamilton wrote of "presidential unity" in Federalist 70, the document perhaps most frequently cited by supporters of the unitary theory. Charlie Savage interprets this as simply meaning the President need not first reach a consensus within the Executive, as was, for example, the case in the Second World War Japanese Cabinet. Federalist 69, however, said that while the President, as did the British King, would oversee the military, he would be "first general", with much less power than a king, for the power to create armies and declare war is given to the Congress. [4]

Walter Berns observed that in the "Records of the Federal Convention of 1787," on June 1,two weeks after the start of the Constitutional Convention, James Wilson "moved that the Executive consist in a single person." Charles Pinckney seconded the motion. Then, "a considerable pause" ensued, and the chairman asked if he should put the question. "Doc Franklin observed that it was a point of great importance and wished that the gentlemen would deliver their sentiments on it before the question was put and Mr. Rutledge animadverted on the shyness of gentlemen. . . ." The pause, according to Berns, was due to the proposed executive being very different from the state executives, and indeed reminiscent of King George III.[5]

James Wilson, one of the Framers, and later Associate Justice of the Supreme Court, told the Pennsylvania ratifiers

that the power of the Constitution was paramount to the power of the legislature, acting under that Constitution. For it is possible that the legislature . . . may transgress the bounds assigned to it, and an act may pass, in the usual mode, notwithstanding that transgression; but when it comes to be discussed before the judges . . . it is their duty to pronounce it void . . . . In the same manner, the President of the United States could shield himself and refuse to carry into effect an act that violates the Constitution.[6]

Implementation

Executive Orders

Signing statements

Signing statement do not have a specific form, but are statements, issued by a President on signing a bill. In some, but not all, cases, they are a means of claiming unitary authority. They have not been a strict liberal vs. conservative issue. During the Clinton Administration, the Office of Legal Counsel of the U.S. Department of Justice sent an opinion to the White House Counsel, indicating that they had been used in many administrations, and it was the duty of the President not to enforce an unconstitutional law. [7] The earliest examples come from James Madison.

Usages

  • explaining to the public,"more particularly to interested constituencies, what the President understands to be the likely effects of the bill, and how it coheres or fails to cohere with the Administration's views or programs. For example, President Kennedy signed an education bill "with extreme reluctance," objecting to several provisions, including "the continuation of the discriminatory and ineffective non-Communist disclaimer affidavit." [8] The greatest number of signing statements were issued by Bill Clinton, but many of his statements did not include a formulation that he might not enforce certain provisions. Rather, they spoke to the way he thought a Constitutional compromise had been resolved.
  • guiding and directing Executive officials in interpreting or administering a statute. The President has the constitutional authority to supervise and control the activity of subordinate officials within the Executive Branch. [9] In the exercise of that authority he may direct such officials how to interpret and apply the statutes they administer.[10]("[i]nterpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law."). Signing statements have frequently expressed the President's intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality), and such statements have the effect of binding the statutory interpretation of other Executive Branch officials.
  • Announcing the President's view of the constitutionality of the legislation he is signing. This category embraces at least three species:
    • statements that declare that the legislation (or relevant provisions) would be unconstitutional in certain applications; **statements that purport to construe the legislation in a manner that would "save" it from unconstitutionality
    • statements that state flatly that the legislation is unconstitutional on its face. Each of these species of statement may include a declaration as to how -- or whether -- the legislation will be enforced

Another variant, which seems to have been introduced in the Reagan Administration, is to "to create legislative (or "executive") history that is expected to be given weight by the courts in ascertain the meaning of statutory language.[11]

Controversy

In the more controversial usages, such "involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional. Some critics argue that the proper presidential action is either to veto the legislation (Constitution, Article I, section 7) or to “faithfully execute” the laws (Constitution, Article II, section 3)."[12]

Ronald Reagan was the first President to use the phrase "unitary presidential authority" in a signing statement; George W. Bush has invoked the formulation that " routinely asserted that he will not act contrary to the constitutional provisions that direct the president to “supervise the unitary executive branch.” This formulation can be found first in a signing statement of Ronald Reagan, and it was repeated several times by George H. W. Bush. Basically, Bush asserts that Congress cannot pass a law that undercuts the constitutionally granted authorities of the President. "[12]

In 1986, then-Attorney General Meese entered into an arrangement with the West Publishing Company to have Presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history. Mr. Meese explained the purpose of the project as follows:

To make sure that the President's own understanding of what's in a bill is the same . . . or is given consideration at the time of statutory construction later on by a court, we have now arranged with the West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.[7]

Use of military force

Congressional notifications of secret activity

In a book review, L. Britt Snider, who has been CIA Inspector General and General Counsel of the Senate Select Committee on Intelligence, observes that while the time between the creation of the CIA in 1947 and the Bay of Pigs in 1961 has been called "the “dark ages” of congressional oversight, when control rested with a few powerful committee chairmen, who did little monitoring of the CIA themselves, but held other committees at bay and fended off all efforts at reform." was more complex than generally understood. Still, there were situations where even Director of Central Intelligence Allen Dulles was surprised to discover that, for example, Speaker of the House Sam Rayburn had not been briefed on U-2 overflights of the Soviet Union.[13]

See also: Compartmented control system

After this time, Congressional oversight mechanisms were more formalized, but not always used. There are also situations where Congress and the Executive disagree on whether a highly classified briefing was conducted.

Removal of officials

Among the first challenges to presidential authority, which led to the impeachment of Andrew Johnson, was the Tenure of Office Act of 1866, which held that a President could not remove an official who had been confirmed by the Senate. In general, that authority is accepted to be a Presidential right, except for special cases.

Such special cases include officials intended to be largely independent, such as Inspectors General or Special Prosecutor. During Watergate, Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than accept Richard Nixon's demand that they fire Special Prosecutor Archibald Cox. In retrospect, the specific Special Prosecutor Act that appointed Cox has been considered flawed, but the issue that the Attorney General has responsibilities both to the President and as the nation's chief law enforcement officer continues.

Treaties

Exercise by specific presidents

Abraham Lincoln

During the American Civil War, President Abraham Lincoln declared martial law in the Confederate States of America, but also took extralegal measures within the Union. Ex parte Milligan is one key precedent where the Supreme Court limited presidential and derived military authority.

Theodore Roosevelt

Roosevelt used both unilateral military orders and signing statements.

Not to meet a specific security threat, but to inform the world of the growing power of the United States, he sent the "Great White Fleet" of white-painted modern warships on a world cruise. [14] When Sen. Eugene Hale, chairman of the Naval Appropriations Committee, threatened to withhold money for the cruise, Roosevelt he already had the money and dared Congress to "try and get it back." In actuality, part of the funding came from construction money for additional warships, and he had always planned to use the cruise to get a supplemental appropriation.

When Roosevelt established several volunteer unpaid commissions to investigate certain factual situations and report back their findings to him. This practice "came to be denounced in Congress as 'unconstitutional,' and an amendment to the Sundry Civil Act of 1909 undertook to forbid the practice. Mr. Roosevelt signed the measure but proclaimed his intention of ignoring the restriction. 'Congress,' he argued, 'cannot prevent the President from seeking advice,' . . .". [15]

Franklin D. Roosevelt

Franklin D. Roosevelt, in 1941, confided an unpublished Presidential legal opinion objecting to the "two-House veto" provision in the Lend Lease bill to then-Attorney General Robert Jackson. Roosevelt found the provision "clearly unconstitutional," but signed the bill as a matter of diplomatic and political necessity, not issuing a signing statement but desirous of doing so. [16].

He did, however, issue a statement when signing the Urgent Deficiency Appropriations Act of 1943, which included a section prohibiting the payment of a government salary or other compensation to certain named government employees deemed to be subversive. While signing the bill because it appropriated funds urgently needed to carry on the war, Roosevelt "'plac[ed] on record my view that this provision is not only unwise and discriminatory, but unconstitutional.'" [17]

Harry S Truman

While the Korean War was soon under United Nations authority, the reality was that Harry S Truman ordered U.S. military forces into combat, to the defense of an ally with limited sovereignty. He saw the act as part of the containment policy.

He also issued a statement when he signed the General Appropriation Act of 1951, regarding loans to Spain, saying that "I do not regard this provision as a directive, which would be unconstitutional, but instead as an authorization, in addition to the authority already in existence under which loans to Spain may be made." [18]

Dwight D. Eisenhower

Dwight D. Eisenhower, while presenting a public image of a relaxed, golf-playing grandfather, actually ran a very strong executive, using multiple aspects of unitary authority.

Covert action and clandestine intelligence

Eisenhower discussed the 1960 U-2 Incident with senior Congressional leaders, but made it clear that the operational decision had been made on his personal authority, and he did not want deep Congressional investigation into intelligence activities. When Sen. Mike Mansfield asked "What would the President think if there were to be established in the Congress a joint Congressional Committee which would oversee the activities of the CIA? The President responded that his own feeling was that the operation of the CIA was so delicate and so secret in many cases that it must be kept under cover, and that the Executive must be held responsible for it. He said that he would agree to some bipartisan group going down occasionally and receiving reports from the CIA on their activities, but that he would hate to see it formalized--indeed would be against the proposal made by Senator Mansfield.[19]

Signing statements

President Eisenhower sought to put a "saving" construction on a 1959 bill amending the Mutual Security Act. He stated that "I have signed this bill on the express premise that the three amendments relating to disclosure are not intended to alter and cannot alter the recognized Constitutional duty and power of the executive with respect to the disclosure of information, documents, and other materials. Indeed, any other construction of these amendments would raise grave Constitutional questions under the historic Separation of Powers Doctrine." [20].

Use of military force

When the state government of Arkansas resisted a Federal court order to desegregate its schools, Eisenhower federalized the Arkansas National Guard and sent regular Army troops to support U.S. Marshals in enforcing the court order. Under the Posse Comitatus Act, Federal troops may not be used directly to enforce civil law, but the Marshals were the actual enforcers. Obviously, a large military force has an effect on the situation, regardless of its actual authority.

His basis for the action was a U.S. code provision invoking Presidential authority,
“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.



“The President, by using the militia or the armed forces, or both . . . shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law . . . [21]

While the Court did not review his exact action, Cooper v. Aaron, [22] rejected a contention advanced by critics of the legality of his conduct, namely, that the President’s constitutional duty to see to the faithful execution of the laws as implemented by the provisions quoted above, does not afford a sanction for the use of troops to enforce decrees of federal courts, inasmuch as the latter are not statutory enactments which alone are comprehended within the phrase, “laws of the United States.” According to the Court, a judicial decision interpreting a constitutional provision, specifically the Court’s interpretation of the Fourteenth Amendment enunciated “. . . in the Brown v. Board of Education[23] is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect . . . .” In other words, specific enforcement of a judicial decision does not violate Posse Comitatus. [24]

  • Beirut

John F. Kennedy

Covert action

Lyndon B. Johnson

See also: Gulf of Tonkin Incident

Richard M. Nixon

President Nixon signed a 1971 military authorization bill, but objected to a provision in it (the Mansfield Amendment, which set a final date for the withdrawal of U.S. Forces from Indochina) as being "without binding force or effect." [25]

Jimmy Carter

President Jimmy Carter issued a signing statements similar to ones issued by Ulysses Grant in 1876, in which Congress ordered the closing of overseas consulates. Carter argued that Congress "cannot mandate the establishment of consular relations at a time and place unacceptable to the President," and accordingly stated his determination to construe the provision as merely precatory. [26]

Ronald Reagan

See also: Iran-Contra Affair

The Minority Report on Report of the Congressional Committees Investigating the Iran-Contra Affair was signed by Dick Cheney as ranking minority member; the primary drafter was Michael Malbin and David Addington contributed to it. [27]

Judgments about the Iran-Contra Affair ultimately must rest upon one's views about the proper roles of Congress and the President in foreign policy. ... [T]hroughout the Nation's history, Congress has accepted substantial exercises of Presidential power -- in the conduct of diplomacy, the use of force and covert action -- which had no basis in statute and only a general basis in the Constitution itself. ... [M]uch of what President Reagan did in his actions toward Nicaragua and Iran were constitutionally protected exercises of inherent Presidential powers. ... [T]he power of the purse ... is not and was never intended to be a license for Congress to usurp Presidential powers and functions.



"The boundless view of Congressional power began to take hold in the 1970's, in the wake of the Vietnam War. The 1972 Senate Foreign Relations Committee's report recommending the War Powers Act [which requires presidents to seek Congressional authorization if they deploy U.S. troops for longer than 60 days], and the 1974 report of the Select Committee on Intelligence Activities (chaired by Senator Frank Church and known as the Church Committee), both tried to support an all but unlimited Congressional power by invoking the "Necessary and Proper" clause. That clause says Congress may 'make all Laws which shall be necessary and proper for carrying into Execution the foregoing [legislative] Powers, and all Powers vested by this Constitution in the Government of the United States, or in any Department of Officer thereof.' The argument of these two prominent committees was that by granting Congress the power to make rules for the other departments, the Constitution meant to enshrine legislative supremacy except for those few activities explicitly reserved for the other branches.

" ... The Necessary and Proper clause does not permit Congress to pass a law usurping Presidential power. A law negating Predidential powers cannot be treated as if it were 'necessary and proper for carrying' Presidential powers 'into Execution.' To suggest otherwise would smack of Orwellian Doublespeak.

"Justice Louis D. Brandeis ... wrote that the 'doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.' His statement has been accepted in some Congressional quarters as if it holds the force of conventional wisdom, but it misses half of the historical truth.[28]

George H. W. Bush

Testifying to the Senate as U.S. Secretary of Defense, Cheney responded to a question from Sen. Ted Kennedy, "Now, barring an act of provocation, do you agree that the President must obtain the approval of Congress in advance before the United States attacks Iraq?"

Senator, I do not believe the President requires any additional authorization from the Congress before committing US forces to achieve our objectives in the Gulf ... every President to my knowledge, certainly in modern times, that the President, as Commander-in-Chief, under Title II (sic), Section 2, of the US Constitution, has the authority to commit US forces, and that, in this particular instance, given the Iraqi invasion of Kuwait, the request for US assistance to defend Saudi Arabia, the request from the legitimate government of Kuwait to help defend Kuwait, given the authorization -- the vote -- not authorization, but certainly the vote, by the United Nations in support of that effort, that the President is within his authority at this point to carry out his responsibilities.
He's made it clear that he would like very much to have the enthusiastic support of the Congress of the United States. The Congress, in its adjournment resolution, specifically provided that the leaders could call them back into special session to address this issue. But, I cannot, as Secretary of Defense, make a statement or a commitment that would limit the President's constitutional prerogatives as Commander-in-Chief.[29]

Bill Clinton

During the Clinton Administration, Congress directed that U.S. military personnel not be placed under United Nations operational control while conducting peace operations. "Because U.N. peacekeeping operations involve multilateral arrangements that require delicate and complex accommodations of a variety of concerns, including those of the nations that provide troops or resources," a mission's success may depend on the degree to which it is perceived as a U.N. rather than U.S. activity.[30]

This was criticized with the commentary by John Yoo, "Responding to congressional efforts to stop the new policy, the Clinton administration has claimed a broad constitutional power in the president to delegate military command authority to any person. According to the administration, the president’s commander in chief power allows him to select whomever he believes necessary for military success…. That position has serious constitutional and policy defects. First, the administration’s legal justification for its recent multilateral command policy fails to account for the Constitution’s limitation on the delegation of federal power outside of the national government…."[31]

George W. Bush

Many, but certainly not all, of this Administrations assertions of unitary authority have been in response to the 9-11 attacks.

Executive Orders

One early Executive Order dealt with interpretation of a treaty, the Third Geneva Convention. He wrote, 7 February 2002,
"I determined.... that members of al-Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war." [32]

Signing statements

While Judge Richard Posner argues that the U.S. is in a state of war with al-Qaeda, he rejects the more extreme position of John Yoo, Deputy Assistant Attorney General and later White House counsel for George W. Bush.[33] Yoo interpreted the Authorization for the Use of Military Force to give the President "plenary constitution power", under Article II, to "to take such military actions as he deems necessary ". [34] According to Posner, Yoo's position gives the President the sole right to determine the status of prisoners; since the President is Commander-in-Chief in peacetime, the right to military arrest would be applicable at all times.

Barack Obama

President Obama issued his first signing statement on 11 March 2009, saying "it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to well-founded constitutional objections."[35] He indicated that he would not compromise Presidential authority in the following areas raised by the bill:

  • Foreign Affairs: Certain provisions of the bill...would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.
  • United Nations Peacekeeping Missions. "Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities." (see Bill Clinton above)
  • Executive Authority to Control Communications with the Congress. [sections of the bill]] prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.
  • Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. ... Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.
  • Recommendations Clause Concerns. Several provisions of the Act ... effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.

References

  1. Immigration and Naturalization Service v. Chadha et al.',  462 U.S. Warren Burger, 919 (Supreme Court of the United States June 23, 1983)
  2. Harold J. Krent, "From a Unitary to a Unilateral Presidency", Boston University Law Review 88, p. 523
  3. "Cheney in His Own Words: An overview of the vice president's views on presidential power and covert action that shows a remarkable consistency from the 1980s to today.", PBS Frontline
  4. Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Little, Brown, ISBN 9789316118040, pp. 125-127
  5. Walter Berns (23 May 2009), "Interrogations and Presidential Prerogative: The Founders created an executive with substantial discretionary powers.", Wall Street Journal
  6. II Jonathan Elliott (ed.), The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 446 (1836), cited by Dellinger
  7. 7.0 7.1 Walter Dellinger, Assistant Attorney General, Office of Legal Counsel (3 November 1993), Memorandum for Bernard N. Nussbaum, Counsel to the President: The Legal Significance of Presidential Signing Statements, U.S. Department of Justice
  8. Public Papers of the Presidents: John F. Kennedy, 637 (1961), cited by Dellinger
  9. Franklin v. Massachusetts, 112 S. Ct. 2767, 2775 (1992), cited by Dellinger
  10. Bowsher v. Synar, 478 U.S. 714, 733 (1986) , cited by Dellinger
  11. Marc N. Garber and Kurt A. Wimmer, Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power, 24 Harv. J. on Legis. 363, 366 (1987), cited by Dellinger
  12. 12.0 12.1 American Presidency Project, Signing Statements, University of California at Santa Barbara
  13. L. Britt Snider, "(book review) The CIA and Congress: The Untold Story Intelligence in Recent Public Literature By David M. Barrett", Studies in Intelligence 50 (1)
  14. Mike McKinley, The Cruise of the Great White Fleet, Naval Historical Center
  15. Edward Corwin, The President: Office and Powers, 85 (3d rev. ed. 1948) quoted in Dellinger
  16. Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353, 1357 (1953) cited by Delliger
  17. United States v. Lovett, 328 U.S. 303, 313 (1946)
  18. Public Papers of the Presidents: Harry S. Truman, 616 (1950)
  19. Dwight D. Eisenhower (26 May 1960), 154. Memorandum of Conversation: Bipartisan leaders breakfast with the President, "May - July 1960 : The U-2 Airplane Incident", Foreign Relations of the United States
  20. Public Papers of the Presidents: Dwight D. Eisenhower, 549 (1959), cited by Dellinger
  21. 10 U.S.C. 332-333
  22. 358 U.S. 1, 4, 18–19 (1958)
  23. 347 U.S. 483 (1954)
  24. CRS Annotated Constitution: Military Power in Law Enforcement: The Posse Comitatus, Cornell University Law School
  25. Public Papers of the Presidents: Richard Nixon, 1114 (1972), cited by Dellinger
  26. II Public Papers of the Presidents: Jimmy Carter, 1434 (1980), cited by Dellinger
  27. Paul Starobin, Reply by Joan Didion (November 2, 2006), "In Cheney's Shadow", New York Review of Books 53 (17)
  28. Dick Cheney, ranking Republican, and staff (November 1987), Minority Report in Report of the Congressional Committees Investigating the Iran-Contra Affair, PBS Frontline
  29. Dick Cheney and Ted Kennedy (December 1990), An exchange between Secretary of Defense Cheney and Sen. Edward M. Kennedy (D-MA) during the Senate Armed Services Committee hearing on the Persian Gulf crisis, PBS Frontline
  30. Roger Pilon, ed. (October 2000), The rule of law in the wake of Clinton, Cato Institute, ISBN 1930865031, p. 169
  31. Gene Healy (19 March 2009), Obama’s First Signing Statement, Cato Institute
  32. George W. Bush (July 20, 2007), Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, Executive Order 13440
  33. Richard A. Posner (2006), Not a Suicide Pact: the Constitution in a Time of National Emergency, Oxford University Press, pp. 67-68
  34. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel (September 25, 2001), Memorandum to the Deputy Counsel to the President, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them
  35. Barack Obama (March 11, 2009), Statement on signing H.R. 1105, the "Omnibus Appropriations Act, 2009, White House Press Office