Crisis and Command: A History of Executive Power from George Washington to George W. Bush

by John Yoo

  10. Andrew Jackson 3.58 16

  Rather than put forward its own definition of greatness, this book will examine the growth of the powers of these Presidents and their effect on the nation's fortunes. All these Presidents believed that their office was equal, and not subordinate, to Congress or the courts and took for granted that the broad exercise of that authority was essential to their success. Several of these Presidents were, in fact, responsible for some of the most explosive constitutional confrontations in American history. An enormous historical literature, indeed, trumpets their "great" or "near great" status precisely because they were so bold as to assert power with extraordinary vigor, and precisely in the most contested or doubtful circumstances.

  Chapters 2 through 7 will examine the history of some of America's best and worst chief executives to understand the outer limits and best uses of presidential power. Looking at the use of constitutional power through a few Presidents may seem questionable to historians, who usually try to understand an individual leader by presenting him in his every detail -- hence the recent biographies examining the childhood, medical health, psychologies, and marital relations, among other things, of Presidents. I do not take issue with the broadening of presidential history, only here the focus remains on the intellectual, political, and legal development of the office. While important, the new social history does not provide as much useful context for an inquiry into constitutional powers as do political, diplomatic, and economic histories.

  A related point is the importance of practice as a source of constitutional meaning. When confronted with any legal question, lawyers will turn first to judicial opinions as an authoritative source of interpretation. Supreme Court opinions parse the constitutional text in light of its original meaning, structure, history, and precedent. In separation-of-power questions, however, especially those involving foreign affairs and national security, judicial opinions are few and far between. There is no Supreme Court decision, for example, defining what the Senate may consider in giving its "advice and consent" to a treaty, or to a Supreme Court nomination, for that matter. The Supreme Court has never decided whether the President must receive a declaration of war or other form of congressional authorization before beginning military hostilities abroad. As then-Justice Rehnquist wrote for the Court in Dames & Moore v. Regan, "the decisions of the Court in this area have been rare, episodic, and afford little precedential value for subsequent cases."17

  Historical practice has outsized importance because of this absence of judicial precedent or any other form of binding resolution of disputes among the branches of government. Practice reflects the understandings developed by the branches of government over time for reaching decisions in these areas. Presidents, for example, have never understood "advice and consent" to require personal consultation with the Senate before negotiating a treaty or choosing a Supreme Court nominee, and this because of a practice that began in George Washington's first year in office. Practice also represents the considered views of leaders of different branches over American history on separation-of-power questions. It is a record of the way in which government actors have adapted broad constitutional principles to discrete questions over time. The cumulative effect of their decisions may reveal sturdy truths about the way our government should best work within the system established by the Constitution. Justice Felix Frankfurter put the point well in the Steel Seizure case, Youngstown Sheet & Tube v. Sawyer, in which the Court blocked President Truman's takeover of steel mills during the Korean War: "The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them."18

  Studying practice closely may provide us with a quality of understanding similar to that enjoyed by courts. Judges usually avoid deciding questions until they arise in a real case, in part because the abstract principles are only tested in the context of actual parties, events, and facts. Similarly, it makes sense to examine executive power under these Presidents because the meaning of broad constitutional principles becomes sharper and clearer in the context of the challenges that they confronted. During periods of peace and domestic tranquility, Presidents, Congresses, and courts will cooperate much of the time, and so no occasion for the definition of their respective constitutional powers will arise. It is only during times of high stress on the political system when the principles of the constitutional framework clearly emerge. Two cautions are in order, however. First, just because practice exists does not make it right -- the persistence of Jim Crow laws for almost 100 years does not, in my mind, make the separate-but-equal interpretation of the Reconstruction Amendments legitimate or correct. Second, practice may be wrong because earlier generations operated under poor information or did not confront the same types of circumstances that we do today.

  These chapters on individual Presidents will show that the constitutional powers of the Presidency grew along with the President's political position as party leader and representative of a national majority. These powers involve control over the administrative state, law enforcement, the conduct of foreign policy, national security, and to the extent the Constitution is unclear, interpretation. The institutionally independent, unified executive and its powers were built through our history, by the hands of Presidents who guided America through the shoals attending its birth, rebirth, and rise to global preeminence. Presidential power has expanded with each crisis and emergency, to keep the nation out of the Napoleonic Wars, to purchase Louisiana, to free the slaves, to bring the nation into World War II, and to contain and defeat the Soviet Union. At these times, our greatest chief executives have vigorously used their powers to benefit, even to save, the nation.

  This is not to say that Presidents can act unilaterally for very long, or that success inevitably follows executive initiative. Emergencies may call upon a President to lead, and robust exercises of presidential power can jolt the political system into recognizing new realities. But resistance and opposition almost always arise in response. Congress and especially the courts may try to defend the status quo. Presidents need the help of congressional majorities, well-organized political parties, or a passive judiciary for their policies to stay in place over the long term. Nonetheless, Presidents who hold narrow visions of their powers, or those who are overly deferential to Congress, such as James Buchanan, will experience failure in crisis. So, too, did Richard Nixon, who expanded presidential power in a time of war and foreign challenge but did so self-servingly against political opponents.

  Nixon and Watergate prompted understandable concerns that the abuse of presidential power was a real threat to our democracy, yet permanently curbing executive power may prove even more damaging. The most radical critics of presidential power seek a return to an idealized system of government that has not existed for more than 100 years, ignoring the complexity of the world today. Congress is a large and unwieldy committee that rarely agrees on a single vision. Congress itself has chosen over the years to delegate enormous authority to the President -- to regulate the environment, education, welfare, the Internet, and many other areas -- precisely because it knows that the executive branch alone can bring management expertise to national problems. Our Constitution designed the executive branch to wield power effectively and flexibly, and our history has favored forceful, not constrained, Presidencies.

  CHAPTER 1

  Beginnings

  MOST JUDGES AND LAWYERS today do not hold the "originalist" view of Justices Clarence Thomas and Antonin Scalia that the Constitution should be interpreted in accordance with the Framers' understanding of the text. Yet, most Americans do believe that what the Framers thought they were doing is still the key starting point for any discussion of the powers of the government and the Presidency. Hence, studies of the Presidency usually begin with the Co
nstitutional Convention of 1787.

  The Framers thought long and hard about the question of executive power. In the words of historian Jack Rakove, creating the Presidency was "their most creative act." It was also their most ambiguous. Details of this new Presidency were left open, sparking controversy from the beginning.1 In Europe, executive power had been the province of kings, not elected officials. Its exercise had caused social turmoil, revolution, and civil war. In the Framers' native Great Britain, restoration of the monarchy had followed. Taming executive power within a republican form of government became a central aim of the Framers of the new American Constitution.

  Many scholars believe that the exercise of executive power today runs counter to the original constitutional design. This group argues that the Revolution against King George III was part of a larger rejection of executive authority and that the Presidency was intended to be a narrow, limited office. The Framers would never have intended to resurrect the same royal prerogatives that they had just fought a war to overthrow.2 This view of the Presidency diminishes its constitutional authority and independence to that of a Clerk-in-Chief whose main duty is to execute Congress's laws. This interpretation profoundly misreads the political developments around the founding of America and the drafting of its Constitution.

  It is true that the Revolutionaries rebelled against King George III and his perceived oppressions of the colonies, but it does not follow that they opposed the idea of executive power. To most who gathered in Philadelphia in the summer of 1787, post-Revolutionary efforts by the states to allow only weak executives with fragmented functions and powers had largely failed. Undermining the integrity of the executive branch had led to unstable, oppressive legislatures. The drafters of the Constitution came to Philadelphia in large part to restore the independence and unity of the executive branch -- a republican, not a royal restoration.

  EXECUTIVE POWER AND POLITICAL THOUGHT

  EXECUTIVE POWER HAS always presented a conundrum: how to make the executive strong enough to promote the common good, but not so strong as to risk despotism. This problem remained vivid in the minds of the Framers. During the ratification of the Constitution, Alexander Hamilton responded, in Federalist 70, to the fears of the Anti-Federalists that "a vigorous executive is inconsistent with the genius of republican government."3 But in the very same paragraph, Hamilton went on to declare that "energy in the executive is a leading character in the definition of good government." How did the Framers go from the weak executives of their revolutionary state constitutions to the strong Presidency described by Hamilton?

  What the drafters of the Constitution meant by executive power and how they viewed the Presidency require that we examine the constitutional thinking of the revolutionary and early national period in some detail. As intellectual historians Bernard Bailyn, Forrest McDonald, and Gordon Wood have shown, the writings of John Locke, Montesquieu, and Sir William Blackstone, set within the context of eighteenth-century British political history, had a profound effect on the Framing generation.4 Political theory about the tensions between executive power and republican government go back at least as far as Niccolo Machiavelli, who is thought to have had little influence during his own lifetime but has become synonymous in the modern mind with coldhearted realpolitik at its starkest. Machiavelli deserves better than his popular reputation; J. G. A. Pocock titled his work on the roots of republican government "The Machiavellian Moment" in recognition of Machiavelli's key role in the rebirth of classic republicanism.5

  Machiavelli invented the modern idea of the executive as the arm of government that both executes the laws and acts to protect the public welfare.6 The rule of ancient consuls, emperors, and medieval kings did not rest on an idea of specialized function, but on a social class theory by which the royal class held power by divine right. Breaking with Aristotelian and Christian theories of political science, Machiavelli "liberated," in the words of Harvey C. Mansfield, Jr., the executive from both natural law and religion.7 The executive was, rather, the servant of necessity, bound to act in accordance with, in the absence of, or in extraordinary emergencies, in defense of the republic, even contrary to regularly constituted law. Machiavelli pointed to executive decisiveness and secrecy -- princes were "quick" to execute and acted "at a stroke,"8 unlike fractious senates. Acting "uno solo," the successful executive's ambition will be turned to the common good, or else he will be held accountable for his failures -- a concise early statement of today's idea of the unitary executive. Hamilton's description of the Presidency as able to act with "decision, activity, secrecy, and dispatch" echoes Machiavelli.9

  Machiavelli challenged the thinkers who came after him to accommodate the executive's energy and decisiveness within the bounds of a formal constitutional order. Thomas Hobbes saw the executive as, ideally, an institution rather than a person. Hobbes believed sovereign authority should vest in one body, either a monarch or an assembly, and did not understand the executive and legislative functions to be distinct.10 John Locke, in his Second Treatise of Government, gave birth to the modern separation of powers, dividing the executive from the legislative power and vesting these powers in different institutions. According to Locke, in the state of nature, every man holds the power to execute the laws of nature but gives up some of that power when joining the commonwealth. Locke saw the executive as primarily the servant of the laws. Because legislatures could not always remain in session, society requires "a Power always in being, which should see to the Execution of the Laws that are made, and remain in force."11 The legislature held the "Supream [sic] Power" to set the rules of conduct, Locke said, while the executive remained subordinate in implementing the laws.

  Locke envisioned a dominant legislature balanced by an independent executive with certain key lawmaking powers: the veto, the right to call or dissolve Parliament, and "federative" power over "war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth."12 Though the federative and executive were "really distinct in themselves," Locke observed that "they are almost always united" because the former "is much less capable to be directed by antecedent, standing positive laws."13 Locke's executive and federative functions were to be performed by the part of government that is always operational, swiftly adapting to new circumstances or dangers. Locke did not recommend separating the functions, which he predicted would lead to "disorder and ruin," by dividing "the force of the public" into "different commands."

  Unanticipated threats were to be dealt with by prerogative, which, stripped of its royal origins, nevertheless allowed the executive, in an emergency, "to act according to discretion for the public good, without the prescription of the law, and sometimes even against it."14 Like the federative power, the prerogative operated in a zone that general, antecedent laws could not address. "Many things there are which the law can by no means provide for, and those must necessarily be left to the discretion of him that has the executive power in his hands." The legislature was "too slow for the dispatch requisite to execution." Unlike the royal prerogative, the executive's authority had to be exercised in the public interest and for the common good. The existence of such power still raised the "old question" of how to resolve conflicts between emergency power and the standing laws. To Locke, there were no preexisting answers to this problem, and there was "no judge on earth" who could resolve it. Defining the executive prerogative's full scope beforehand would be simply impossible.

  Montesquieu reinforced Locke's ideas with a unique twist. His 1748 Spirit of Laws inaccurately idealized the English constitution but became famous for the maxim that "when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty."15 Montesquieu defined the legislative power as controlling domestic policy, taxing and spending, and establishing private rules of conduct. Following Locke, he viewed the executive power as enforcing the laws and conducting foreign relations. Montesquieu added a third branch of
government, the judiciary, which Locke had classified as a law enforcement function. Apart from inventing the independent judiciary, Montesquieu did not fundamentally alter Locke's approach. Cited more than any other philosopher by Federalists and Anti-Federalists alike, Montesquieu was the prime exponent for the colonists of the idea of separating powers to safeguard liberty.16

  Blackstone transformed these theories into something resembling constitutional law. In his Commentaries on the Laws of England, which was widely read in the colonies, Blackstone retained Locke and Montesquieu's distinctions among lawmaking, execution, and foreign affairs. The "making of the laws is entirely the work of a distinct part, the legislative branch, of the sovereign power."17 It was a "sovereign and uncontrollable authority" on all domestic matters. Parliament could "do everything that is not naturally impossible." Blackstone's separation of powers, however, was based not on function but on social class -- the King, Lords, and Commons represented different segments of society with their own attributes, such as power, wisdom, and virtue. Blackstone's mixed constitution protected liberty by ensuring that each social class participated in all government decisions.

  Blackstone had much in common with Montesquieu and Locke. He defined the executive's primary job as prosecution of the laws and praised the British constitution's concentration of executive authority in a "sole magistrate of the nation" because it produced "unanimity, strength, and dispatch."18 In words that would be repeated during the Philadelphia Convention (though often without attribution), Blackstone criticized the idea of dispersing the executive power among different officials. "Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in government." For that reason, Blackstone concluded, the British constitution made the King of England "not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him."19