The 2024 Executive Power Survey

War Powers

In recent years, the Justice Department’s Office of Legal Counsel has claimed that the Constitution authorizes the president, as commander in chief, to direct the military to attack other countries without congressional permission if the president determines that this would serve the national interests of the United States and the nature, scope and duration of the anticipated hostilities are “limited,” like airstrikes against Libyan government forces in 2011 and Syrian government forces in 2017 and 2018. Separately, administrations of both parties have stretched their interpretation of the 2001 Authorization for Use of Military Force to claim that Congress has already granted permission for war against entities and in places other than the original Al Qaeda and Taliban in Afghanistan, like ISIS and Al Shabab in Somalia.

Do you agree with the O.L.C.’s reasoning about the president’s unilateral constitutional authority to use military force? Under what circumstances other than a literally imminent threat to the United States, if any, does the Constitution permit a president to order an attack on another country without prior congressional authorization? Please address whether bombing Iranian or North Korean nuclear facilities would qualify. Separately, under what circumstances, if any, would you support — and sign into law if Congress were to pass it — legislation repealing the 2001 A.U.M.F.?

Domestic Military Action

After Sept. 11, an American citizen who had been arrested in Chicago and accused of terrorism ties was deemed to be an “enemy combatant” and transferred to military custody. He was held in wartime detention without trial for years before being transferred back to the civilian justice system before the Supreme Court could resolve his case. In 2011, an American drone strike targeted and killed an American citizen who had been deemed to be an operational terrorist leader whose capture was infeasible, but who had not been charged or convicted in a trial. Administrations of both parties have sent military forces to assist civilian agents at the Mexico border, but to date, they have not used the military to directly enforce immigration law. 

Are any of these examples unlawful? Under what circumstances, if any, may a president use military force within the United States or against Americans?

Commander-in-Chief Power

After Sept. 11, the N.S.A. wiretapped on domestic soil without court orders seemingly required by the Foreign Intelligence Surveillance Act, and the C.I.A. used coercive interrogation techniques on prisoners despite anti-torture laws and treaties. In the 2014 Bergdahl deal, the military transferred five Guantánamo detainees to Qatar without giving Congress the 30 days’ notice seemingly required by a detainee transfer law. In each instance, executive branch lawyers said the apparent legal barriers were unconstitutional encroachments on the president’s commander-in-chief power.

Were any of these actions unlawful? Under what circumstances, if any, do you believe the Constitution empowers the president, as commander in chief, to override or bypass prohibitions or requirements in federal statutes?

Signing Statements

In recent decades, presidents have started to routinely use “signing statements” to claim a constitutional right to bypass provisions of bills they are signing into law. The American Bar Association has called the practice unconstitutional and said presidents can choose only between vetoing bills, giving Congress an opportunity to override their judgments, or signing and obeying all of them. Other legal specialists have disagreed, saying the practice is appropriate so long as the theories of executive power used to challenge provisions are legitimate.

Under what circumstances, if any, would you use signing statements to deem provisions of bills constitutionally invalid?

Emergency Powers Reform

President Donald J. Trump invoked emergency power to direct the government to spend more taxpayer funds on an effort to expand a border wall with Mexico than Congress had been willing to appropriate. President Biden invoked emergency power to direct the government to cancel billions of dollars of student debt. There have been bipartisan proposals in Congress to reform emergency power law by providing that a national emergency declared by a president terminates after 30 days unless Congress affirms such a declaration.

If Congress passed such a bill curtailing presidential emergency powers, would you sign it into law?

Obstruction of Justice

The fallout from the Mueller report revealed that there was a disagreement within the Justice Department about whether existing obstruction-of-justice laws should be interpreted as applying to a president who abuses his official powers to impede an investigation for corrupt reasons — and whether, as a constitutional matter, Congress could criminalize abuse of official power even if lawmakers explicitly and unambiguously intended to do so.

As a constitutional matter, does Congress have the authority to criminalize a president’s abuse of Article II powers for corrupt purposes? As a statutory matter, do current obstruction-of-justice laws apply to a president’s abuse of his official powers?

Indictment of a President

The Justice Department’s Office of Legal Counsel — first under the Nixon administration during the Watergate scandal, and then under the Clinton administration during the Whitewater/Lewinsky scandal — has asserted that sitting presidents are immune from criminal indictment and trial and so any such criminal process has to come after they leave office. That view bound the special counsel Robert S. Mueller III in the Russia investigation and now binds the special counsel Robert K. Hur in the Biden documents investigation.

For all: Is this the correct interpretation of the Constitution? If not, would you instruct your attorney general to rescind those O.L.C. opinions? If so, would you sign legislation tolling the statute of limitations for criminal offenses by presidents so that it does not run out while they are in office and temporarily immune from indictment?

Additional question for President Biden only: In the 2020 candidate survey, you criticized the O.L.C.’s reasoning and wrote that if elected, you would “promptly direct the attorney general to order a comprehensive review of these opinions.” But The New York Times reported this year that you had not done so. Why didn’t you, and what will you now do?

Pardon Power

Four days before President Richard M. Nixon resigned in 1974, the Justice Department’s Office of Legal Counsel issued a terse legal opinion stating that “it would seem” that Nixon could not pardon himself “under the fundamental rule that no one may be a judge in his own case.” But the Constitution does not explicitly say this, and since no president has ever tried to pardon himself, it has not been tested in court. Former President Donald J. Trump is now facing Espionage Act and obstruction-related charges in the Mar-a-Lago documents matter.

For all candidates: May a president pardon himself?

For former President Donald J. Trump only: Would you pardon yourself if returned to office, or otherwise direct the Justice Department to drop the case against you?

For all other candidates: Would you pardon former President Donald J. Trump if elected, or otherwise direct the Justice Department to drop the case against him?

Law Enforcement Independence

Especially since Watergate, there has been an institutional norm of independence from White House control at the Justice Department and the Internal Revenue Service. The idea is that while a president can set broad policies, he or she should not get involved in specific criminal cases or auditing decisions except in rare situations that would affect foreign policy. This is especially seen as true for cases that affect a president’s personal or political interests, such as an investigation into himself or his political opponents.

As a matter of law, do you think the president has the power to direct the Justice Department to open or close specific criminal investigations, bring or drop charges against specific people, or appoint or remove a special counsel? Do you think the president has the power to direct the I.R.S. to start or shut down a specific audit? Regardless of what the law may permit a president to do in the abstract, as a matter of good governance, would you pledge if elected to obey the post-Watergate norm that presidents do not involve themselves in specific law enforcement decisions?

F.B.I. Director

After the death of a longtime F.B.I. director, J. Edgar Hoover, and as part of the post-Watergate reform era, Congress created a system in which F.B.I. directors are to serve single, fixed 10-year terms rather than being replaced each time a new president takes office like an ordinary political appointee. In July 1993, William Sessions resigned early under pressure from President Bill Clinton after bipartisan findings that Mr. Sessions had used taxpayer-funded resources for personal use. In May 2017, James B. Comey Jr. was fired by President Donald J. Trump amid the early Russia investigation. Mr. Trump appointed Christopher A. Wray as director in August 2017, so his term is set to end in 2027.

If elected, would you allow Mr. Wray to serve out his term absent some new issue that has not yet come to public light?

Executive Secrecy

Presidents of both parties have claimed that executive privilege applies not only to their own internal White House communications, but also to internal deliberations within government departments and agencies that do not involve the president.

Does executive privilege extend to agency deliberations that did not involve the White House? Does Congress have legitimate constitutional authority to issue subpoenas compelling disclosure of information about potential wrongdoing?

Unitary Executive

Lawyers in the Reagan-era Justice Department developed the so-called unitary executive theory, an expansive interpretation of presidential power that aims to centralize greater control over the government in the White House. Under stronger versions of this vision, Congress cannot fracture the president’s control of federal executive power, such as by vesting the power to make certain decisions in an agency head even if the president orders the agency to make a different decision, or by limiting a president’s ability to enforce his desires by removing any executive branch official — including the heads of “independent” agencies — at will.

In line with this vision, shortly before the 2020 election, President Donald J. Trump issued an executive order that sought (in an interpretation of statutory authority) to strip Civil Service protections from tens of thousands of career federal employees by reclassifying them as “Schedule F,” which would allow a president to fire or reassign them at will. But President Biden rescinded this order before it was legally tested. The Trump team also weighed an executive order that would require independent agencies, which Congress has insulated from presidential supervision, to submit new regulations and guidance practices to the White House for approval before issuing them.

Is it constitutional for Congress to enact laws constraining a president’s ability to remove officials at will? Is it constitutional for Congress to limit the president’s ability to direct the actions of a government agency like the Federal Reserve? Would you seek to curtail Civil Service protections and the independence of regulatory agencies?

Press Freedoms

Prosecutors during the Trump administration expanded a criminal case against Julian Assange to include accusations that he violated the Espionage Act by soliciting, obtaining and publishing classified documents without authorization. It could establish a precedent that such common journalistic activities (a separate question from whether Mr. Assange counts as a “journalist”) can be treated as a crime in the United States; the Biden administration has kept those charges. Meanwhile, following a surge in leak investigations under presidents of both parties that included going after reporters’ communications logs and other information, the Biden-era Justice Department issued new rules barring investigators from seeking compulsory production of reporters’ information.

Are the Espionage Act charges against Mr. Assange constitutional as a legal policy matter and would your administration keep that part of the case against him? Do you support and would your administration keep the new rules against compulsory production of reporters’ information in leak investigations?