Executive or Imperial Branch?

By Ivan Eland
May 7, 2008

Editor's [Consortium News] Note: Lost amid the U.S. news media's focus on important matters, like Rev. Jeremiah Wright's latest outburst, has been any interest in trivial questions, such as how George W. Bush has trampled the U.S. Constitution, stampeded the nation into a disastrous war and walked all over Congress.


More memos recently have surfaced that were written early in the Bush administration by John C. Yoo from the Justice Department's Office of Legal Counsel — the man who gave us the administration's horrifyingly narrow definition of torture.

As difficult as it is to believe, the recently released memos are even scarier than the original torture memo.

Yoo boldly asserts that the president's power during wartime is nearly unlimited. For example, he argues that Congress has no right to pass laws governing the interrogations of enemy combatants and the commander in chief can ignore such laws if passed, and can, without constraint, seize oceangoing ships.

The memos also argue that military operations in the United States against terrorists are not subject to the Fourth Amendment requirement for search warrants or the Fifth Amendment requirement for due process.


During the Quasi-War with France in the last years of the 1700s, Congress authorized President John Adams to seize armed ships sailing to French ports. Adams exceeded the congressional authorization by ordering the seizure of vessels sailing to or from French ports.

The Supreme Court, in the case Little v. Barreme, ruled that Adams had exceeded the authority Congress had delegated to him. So much for Bush's supposed intrinsic authority to seize all oceangoing ships without congressional authorization.

In 1952, President Truman, the first imperial president, seized the steel mills under his alleged "inherent power" as commander in chief — supposedly to prevent paralysis of the national economy and using the rationale that soldiers in the Korean War needed weapons and ammunition.

By a wide margin, in the case Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court struck down Truman's executive order to seize the mills because it had no statutory or constitutional basis. Essentially, the court ruled that the president may be commander in chief of the armed forces but not the country.

Yoo's assertion that Congress has no right to pass laws that impinge on the president's claim to a broad interpretation of his role as commander in chief violates the core of the constitutional system of checks and balances, and for which the United States regularly criticizes despots in foreign countries.

Finally, the Fourth Amendment (requiring warrants for any search) and the Fifth Amendment (the right to due legal process) contain no exceptions for wartime. In fact, in a republic — where the rule of law should be king — crises and wartime are exactly when people's rights are most likely to be endangered and when safeguards are especially needed.

"Editor's [Consortium News] Note" above is sarcastic of course. It misses the direct connection between the Rev. Jeremiah Wright issue(s) and exactly what is going on with the Imperial Presidency. Wright pointed exactly to the very kinds of abuses that this post on the "Imperial Branch" is about. How people are able to disconnect Wright from all the other things that the U.S. imperialist are doing is a mystery to most. Wright discussed the terrible U.S. foreign policy where presidents have abused other peoples (terrorizing them for the sake of Empire) and that, that terrorizing causes people in other nations to hate the U.S. and to seek to attack it. How is that missed or disconnected? Ignoring the issues raised by Wright will never lead to consistently addressing what is wrong with America or the entire world.

Tom Usher

About Tom Usher

Employment: 2008 - present, website developer and writer. 2015 - present, insurance broker. Education: Arizona State University, Bachelor of Science in Political Science. City University of Seattle, graduate studies in Public Administration. Volunteerism: 2007 - present, president of the Real Liberal Christian Church and Christian Commons Project.