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As a presidential candidate, Barack Obama criticized the George W. Bush administration for its unrestrained actions in matters of national security. Yet President Obama has not fulfilled candidate Obama's promise to restore the rule of law and make a clean break with his predecessor.In Power without Constraint Chris Edelson offers a thorough, extensive comparison of the Bush and Obama administrations' national security policies, arguing that both have asserted more executive authority than previous presidents. He examines once-secret Justice Department memos in which President Bush's officials claimed for the executive branch plenary unilateral authority to use military force in response to threats of terrorism, as well as the power to set aside laws made by Congress, even criminal laws prohibiting torture and warrantless surveillance. He acknowledges that President Obama and his officials have not claimed the authority to set aside criminal laws, relying on softer rhetoric and toned-down legal arguments to advance their policies. But, in key areas-military action, surveillance, and state secrets-they have simply found new ways to assert power without meaningful constitutional or statutory constraints.Edelson contends that this legacy of the two immediately post-9/11 presidencies raises crucial questions for future presidents, Congress, the courts, and American citizens. Where is the political will to restore a balance of powers among branches of government and adherence to the rule of law? What are the limits of authority regarding presidential national security power? Have national security concerns created a permanent shift to unconstrained presidential power?

"As a presidential candidate, Barack Obama criticized the George W. Bush administration for its unrestrained actions in matters of national security. In secret Justice Department memos, President Bush's officials had claimed for the executive branch total authority to use military force in response to threats of terrorism. They set aside laws made by Congress, even criminal laws prohibiting torture and warrantless surveillance. Candidate Obama promised to restore the rule of law and make a clean break with the Bush approach. President Obama has not done so. Why? In a thorough comparison of the Bush and Obama administrations' national security policies, Chris Edelson demonstrates that President Obama and his officials have used softer rhetoric and toned-down legal arguments, but in key areas--military action, surveillance, and state secrets--they have simply found new ways to assert power without meaningful constitutional or statutory constraints. Edelson contends that this legacy of the two immediately post-9/11 presidencies raises crucial questions for future presidents, Congress, the courts, and American citizens. Where is the political will to restore a balance of powers among branches of government and adherence to the rule of law? What are the limits of authority regarding presidential national security power? Have national security concerns created a permanent shift to unconstrained presidential power?"--Publisher's website

"Can a U.S. president decide to hold suspected terrorists indefinitely without charges or secretly monitor telephone conversations and e-mails without a warrant in the interest of national security? Was the George W. Bush administration justified in authorizing waterboarding? Was President Obama justified in ordering the killing, without trial or hearing, of a U.S. citizen suspected of terrorist activity? Defining the scope and limits of emergency presidential power might seem easy--just turn to Article II of the Constitution. But as Chris Edelson shows, the reality is complicated. In times of crisis, presidents have frequently staked out claims to broad national security power. Ultimately it is up to the Congress, the courts, and the people to decide whether presidents are acting appropriately or have gone too far. Drawing on excerpts from the U.S. Constitution, Supreme Court opinions, Department of Justice memos, and other primary documents, Edelson weighs the various arguments that presidents have used to justify the expansive use of executive power in times of crisis. Emergency Presidential Power uses the historical record to evaluate and analyze presidential actions before and after the terrorist attacks of September 11, 2001. The choices of the twenty-first century, Edelson concludes, have pushed the boundaries of emergency presidential power in ways that may provide dangerous precedents for current and future commanders-in-chief. Winner, Crader Family Book Prize in American Values, Department of History and Crader Family Endowment for American Values, Southeast Missouri State University"--Publisher's description.

ABSTRACT
Although the US Constitution permits presidents to order the use of military force without congressional approval only in an emergency context, presidents since Truman—especially after 9/11—have unilaterally ordered the offensive use of military force without congressional approval. Unless Congress asserts its constitutional role, President Donald Trump could continue to draw on this precedent to claim broad discretion to order the use of military force.

Justice Jackson's concurring opinion in the Youngstown steel seizure case is seen as a rejection of unlimited presidential power and a suggestion that presidents should, when possible, act with Congress rather than unilaterally. However, his famous tripartite framework can be exploited. After 9/11, both the Bush and Obama administrations claimed statutory authorization when none existed in order to lend legitimacy to what were in fact unilateral actions and/or found ways around constitutional limits. In most cases, Congress and the courts failed to set meaningful limits on executive power. The result is that national security power has increasingly been concentrated in the hands of the president, cloaked by the dubious claim that presidents are acting pursuant to statutory authority. Congress and the courts can and should give meaning to Jackson's tripartite framework by rejecting implausible claims that executive branch action is supported by statutory authority and by applying constitutional limits to joint action by the elected branches. This would restore meaning to the tripartite framework as an effective tool to define and set limits on executive power.