by John Yoo
CRISIS AND
COMMAND
The History of Executive Power
from George Washington
to George W. Bush
John Yoo
CONTENTS
Introduction
CHAPTER ONE: Beginnings
CHAPTER TWO: Creation
CHAPTER THREE: George Washington
CHAPTER FOUR: Thomas Jefferson
CHAPTER FIVE: Andrew Jackson
CHAPTER SIX: Abraham Lincoln
CHAPTER SEVEN: Franklin D. Roosevelt
CHAPTER EIGHT: The Cold War Presidents
CHAPTER NINE: The Once and Future Presidency
Afterword
Acknowledgments
Endnotes
Bibliography
Index
INTRODUCTION
CRISIS AND COMMAND completes a trilogy on the political, constitutional, and legal controversies provoked by al Qaeda's September 11, 2001, terrorist attacks on New York City and Washington, D.C. War acts on executive power as an accelerant, causing it to burn hotter, brighter, and swifter. It may burn out of control or it may flame out quickly. The American constitutional system has struggled from the birth of the Republic to figure out the right balance between energetic executive power and predictable, normal social activity; and the early years of the twenty-first century have been no different. The unconventional nature of the terrorist threat placed unprecedented stress on the Presidency and its relationship to the other branches of government. Al Qaeda's decentralized form demanded the reinterpretation of the rules of war, including the legitimate grounds for war, surveillance, targeting, detention, interrogation, and trial.
I was an official in the Justice Department involved in developing national security policy in the wake of the September 11 attacks. On the question of waging war, the President's constitutional authority had historically been paramount. Nonetheless, within weeks of the al Qaeda attacks, critics emerged claiming that Congress, rather than the President, should be making policy. In 2005, I wrote The Powers of War and Peace, which explained my view of the original understanding of the Constitution's foreign affairs power, and applied it to post-9/11 questions about starting wars, entering treaties, and setting foreign policy. War by Other Means followed the next year. It explained the logic and legal authority behind the Bush administration's counterterrorism policies, though criticizing its political strategies. Both books argued that the Framers understood the Constitution to give the President the primary direction of national security decisions, with Congress retaining ample authority to check executive policy.
Some disagree with this reading of the original understanding. They object that the Framers' decisions at the end of the eighteenth century should not affect how we make national security policy at the beginning of the twenty-first. They argue that the Framers intended Congress to play the predominant role in setting national security and foreign policy and that legislative action invariably overrides presidential decision-making. Other critics believe that the original understanding of the Constitution has little or no application to contemporary separation-of-power questions. Ideally, they say, Congress should make the major peacetime policy decisions, the President execute them, and the courts adjudicate the cases. Both theories race toward the same finish line. Books with titles like The New Imperial Presidency, The Terror Presidency, or Takeover: The Return of the Imperial Presidency all proceed from the assumption that the President has no significant constitutional authority of his own but is bound to follow Congress's directions, even during war or emergency.
These works, and the contemporary Zeitgeist they reflect, often overlook the importance of events like the Louisiana Purchase, the Emancipation Proclamation, or America's early assistance to Great Britain in World War II. This book explores a factor seldom consulted in debates over executive power today: history. A single volume cannot comprehensively examine the growth of executive power throughout our Constitution's 220 years, but it can deepen our understanding. I trace the genealogy of today's controversies back to the nation's first chief executive, George Washington, then describe how Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt used the powers of their office in times of crisis. Stephen Skowronek has classified these men as the most transformative Presidents, the ones who disrupted the existing political order and replaced it with one of their own making.1 Marc Landy and Sidney Milkis agree that these five Presidents are the "greatest" for their profound effect on the American political system of the day.2
This is not a coincidence. These Presidents are considered great precisely because of their boldness. Some made lasting changes to the political system; others altered the structure and powers of their office. But this alone cannot account for their success. Presidents such as Martin Van Buren, William McKinley, or Woodrow Wilson also wrought noteworthy political changes. Rather, our greatest Presidents became great by leading the nation through crises. "[I]f Lincoln had lived in times of peace," Theodore Roosevelt observed, "no one would have known his name now."3 There is a significant, but misunderstood, link between the vigorous exertion of executive power and presidential greatness. By themselves, crises don't produce presidential excellence -- just look at James Buchanan, Lincoln's predecessor, or Herbert Hoover, FDR's predecessor. Both responded to emergency -- secession in one case, depression in the other -- by withdrawing feebly into their shells. Chief executives can draw upon a deep well of constitutional authority when they act in the face of peril. Some may respond by bowing to Congress and respecting the status quo, but that course might perpetuate the very policies that failed in the first place. The qualities that define the executive -- energy, speed, decisiveness, and secrecy, among others -- are indispensable in emergency situations. The ordeals of the nation's founding, the Napoleonic Wars, the Civil War, or World War II were not overcome without Presidents of the day making use of the very broadest reach of their constitutional powers.
Some may read this book as a brief for the Bush administration's exercise of executive authority in the war on terrorism. It is not. It is a book about the constitutional and institutional history of the Presidency. It is not meant to be as comprehensive as histories that scour the life and times of a single Chief Executive.4 I do not attempt to trace the evolution of the Presidency in a single frame, say, as a political actor, from Washington's patriot king to Teddy Roosevelt's rhetorical leader to today's campaign-in-being.5 Instead, I seek here to provide a different perspective: to describe the relationship between the constitutional authorities of the office, and presidential success as measured by scholars of the Presidency. I examine how individual Presidents understood and used their constitutional authorities to deal with challenges, successfully or not.
This book is also written out of respect for Congress as well as the President. I have had the honor to serve as general counsel of the Senate Judiciary Committee under the chairmanship of Senator Orrin G. Hatch of Utah, a good and decent man as well as a steward of the Senate. I have the greatest respect for the awesome powers of Congress and the ways in which Congress and the broader political system can check any chief executive. It was Congress that forced the resignation of Richard Nixon through hearings, political pressure, spending constraints, and ultimately, the threat of impeachment. Today's critics of the Presidency underestimate the power of politics to corral any branch of government that goes too far. They give too much credit to appeals to abstract notions of constitutional balance to restrain a truly
out-of-control President, or misread active responses to unprecedented challenges as challenges to the Constitution. The hyperbole in such rhetoric is manifest in overwrought yet commonplace invocations of "treason" or "tramplings" of the Constitution. Has the Constitution indeed been trampled on? History provides us with a guide.
Certainly, the fear that a President might abuse power for personal gain or to maintain his or her position has haunted America from her birth. Executive power, as the Founding Fathers well knew, always carries the possibility of dictatorship. In their own day, the great Presidents were all accused of wielding power tyrannically. Yet, they were not dictators. They used their executive powers to the benefit of the nation. Once the emergency subsided, presidential power receded and often went into remission under long periods of congressional leadership. When chief executives misused their powers, the political system blocked or eventually ejected the President. No dictator has ever ruled in the United States, yet critics of contemporary presidential power wish to work radical change in current practice out of fear of impending dictatorship.
Exercises of presidential power can go badly wrong, of course. Richard Nixon is the most salient example of presidential authority used for ill. He ordered the covert surveillance of political opponents, the infiltration of anti-war groups, and the harassment of critics -- all on grounds of national security that were strained at best, and criminally deceitful at worst. He used executive privilege to conceal information from criminal investigators in the Watergate scandal, fired special Justice Department prosecutors, and ultimately resigned before his almost certain impeachment by the House of Representatives. After he left office, Nixon defended his actions in a television interview with David Frost, claiming in a damning over-generalization: "[W]hen the president does it, that means that it is not illegal."6
The broad exercise of presidential power is not confined to the twentieth or twenty-first centuries but represents the necessary expansion over 200 years of the constitutional powers of the office. It started with the Revolutionaries' effort to avoid executives who might become monarchs. By the time of the Constitution's ratification, however, the Framers' views had evolved in favor of an independent, forceful President. The Constitution devotes more of its attention to listing the powers of Congress, but it deliberately paints the President's powers in broad strokes. Our greatest Presidents, from George Washington on, have filled in these sketchy outlines with deeds, deeds that met national challenges, both foreign and domestic. Presidential power has grown with the nation's power, both in our constitutional law and in prestige and substance.
These conclusions are at odds with the prevailing scholarly accounts of the White House. Richard Neustadt, author of the most influential book on the Presidency of the last half-century, views the story of modern chief executives as a story of "presidential weakness."7 Presidential power, Neustadt famously argued, is "the power to persuade." After examining Truman's firing of General Douglas MacArthur and his seizure of the steel mills during the Korean War, and Eisenhower's use of troops to desegregate the Little Rock schools, Neustadt concluded that resorting to formal presidential orders was "suggestive less of mastery than failure."8 While Neustadt conceded that formal constitutional authority was part of a President's personal influence, he made clear that "the probabilities of power do not derive from the literary theory of the Constitution." Scholars following Neustadt find presidential power in characteristics such as communicative and political skills, organizational ability, vision, cognitive style, and emotional intelligence.9 Neustadt would recommend that Presidents rely upon these skills and avoid any invocation of their constitutional powers.
A long-standing tradition in political science views executive power as a problem, not a solution. Woodrow Wilson, while still a young scholar, argued that the Framers had designed a defective Constitution. In 1885, he famously pressed for "congressional government" in which the President would be, in effect, a prime minister, at the head of the executive branch and the majority party in Congress. Wilson believed this the only way to coordinate both branches of government and overcome the debilitating effects of the separation of powers.10 But by 1907, Wilson had changed his mind, putting his hopes in a President who would act as a powerful leader in national affairs.11 Professor Clinton Rossiter, author of the classic The American Presidency, identified several duties incumbent on the chief executive, from "Protector of the Peace" to "Manager of Prosperity."12 Rossiter worried that if the President did not use all of his formal and informal powers to lead the nation, the government would become "weak and disorganized." This view, echoed most recently by James MacGregor Burns, argues that the Constitution's original separation of powers divided the executive from the legislative far too well, creating paralyzed government as a result.13 Presidential government, Burns observed, would "strengthen democratic procedures" and help achieve "modern liberal democratic goals."
For others, the problem is the reverse: the Constitution checks presidential power too little, not too much. After abuses of executive authority under Kennedy, Johnson, and Nixon, scholars argued that the political checks on presidential behavior had grown too weak and that a return to constitutional principles was necessary. Arthur Schlesinger, Jr., for example, who had praised the exercise of presidential power in his celebrated biography of Andrew Jackson, then as court historian to Kennedy, changed his tune after Vietnam. In The Imperial Presidency, he claimed that a "shift in the constitutional balance [of power]" between Congress and the President had occurred, one marked by "the appropriation by the Presidency, and particularly by the contemporary Presidency, of powers reserved by the Constitution and by long historical practice to Congress."14Claims that the Presidency has violated the Constitution's original design continues to characterize the work of some of the nation's leading law professors, such as Bruce Ackerman, John Hart Ely, Michael Glennon, and Harold Koh.
Both approaches assume that the Framers of 1787 designed the original Presidency to be a weak office, and that circumstances have expanded executive power far beyond its intended limits. One side welcomes this development; the other seeks to return to an eighteenth-century version of the Presidency. I believe that both sets of scholars underestimate the Framers' intentional desire to create a Presidency with broad, rather open-ended powers in specific areas, such as foreign affairs and national security. They meant to leave these boundaries flexible. And so, from the beginning, Presidents have acted forcefully to respond to emergencies and unanticipated events without consulting Congress. The Framers counted on politics to check and balance presidential initiative, not "parchment barriers." The Presidency could have evolved into a weak office whose occupants served as the Clerks-in-Chief to Congress. As it happened, the United States grew in size, population, and complexity, and the Presidency grew with it, in power and standing.
This insight can be traced at least as far back as Alexis de Tocqueville. In his classic Democracy in America, he observed that the Presidency was a relatively weak office because the armed forces were tiny, the nation was protected from Europe by the oceans, and no natural enemies sat along its borders. "The President of the United States possesses almost royal prerogatives, which he has no opportunity of exercising; and the privileges that he can at present use are very circumscribed. The laws allow him to be strong, but circumstances keep him weak." That would change, Tocqueville predicted, as America grew. It is in foreign relations "that the executive power of a nation finds occasion to exert its skill and its strength." If the national security of the country "were perpetually threatened, if its chief interests were in daily connection with those of other powerful nations," Tocqueville continued, "the executive government would assume an increased importance in proportion to the measures expected of it and to those which it would execute."15
This book will trace the history of presidential power from the founding of the Republic up to today's debates over the war on terror. Understanding the growth and nature of executive power requir
es an interdisciplinary approach, including political science, history, and law. To combine these fields is too rare. The origins of the "unitary executive" go back to Alexander Hamilton and before him to Montesquieu, Blackstone, Locke, and Machiavelli. The unitary executive theory, like the text of the Constitution, says that the President has the "executive power" of government -- that is, the authority to manage the agencies and exercise powers inherently "executive" in nature, in particular the conduct of foreign policy. This vesting of power contrasts with the Constitution's grant of specified, or "enumerated," powers to Congress. Chapter 1 will discuss the creation of the Presidency, beginning with the colonists' experience with executive power, the problems with legislative supremacy during the Revolution, and the establishment of a strong, independent executive by the Constitution's Framers.
Following chapters will discuss individual Presidents and the use of their constitutional powers. No single volume could comprehensively discuss every President's relationship with his constitutional powers. Instead, Chapters 2 through 7 will focus on our great Presidents and contrast them with some of our worst leaders. In 2005, the Wall Street Journal and the Federalist Society asked 130 prominent historians, political scientists, economists, and law professors from across the ideological spectrum to rank each American President on a scale of 1 to 5:
GREAT
1. George Washington 4.94
2. Abraham Lincoln 4.67
3. Franklin Roosevelt 4.41
NEAR GREAT
4. Thomas Jefferson 4.23
5. Theodore Roosevelt 4.08
6. Ronald Reagan 4.03
7. Harry Truman 3.95
8. Dwight Eisenhower 3.67
9. James Polk 3.59