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

by John Yoo

  The object of this constitutional counterrevolution was a restored executive to check the excesses of the legislature, control law enforcement, appoint and manage government personnel, and conduct war and foreign relations. With Montesquieu's ringing injunction that liberty could only survive with a clear separation of the branches of government, the Framers arrived at the Constitutional Convention determined to create an executive that would be elected independently of the legislature and possess its own inherent authorities, so as to avoid the manipulation by the legislature that the revolutionary states had experienced, and to confound factions. As an authoritative work on the revolutionary constitutions has observed, "[T]he reaction against the colonial governor was so weak that it did not lead to parliamentary government with an executive committee of members of the legislature, but rather that within a decade the American system of presidential government evolved with full clarity and permanence."49

  CHAPTER 2

  Creation

  WHEN THE DELEGATES to the Constitutional Convention met in the summer of 1787, the only thing that made them more uncomfortable than the Philadelphia heat was the topic of the executive. Madison's notes record that when James Wilson of Pennsylvania moved that the executive power be vested in a single officer, "a considerable pause" followed. It took Benjamin Franklin, who rarely threw his considerable prestige into the debates, to demand that "the gentlemen deliver their sentiments" because "it was a point of great importance."1 But the Framers refused to consistently and directly address the chief problem -- how to republicanize the executive. Rather, they reached a series of incremental decisions, many of them in committees or late in the convention.

  Federalism dominated the convention: the representation of the small states in the Senate, the federal ability to tax and regulate individuals directly, and the issue of slavery. The Framers discussed the Presidency three times that summer but made little progress until the very end. Structure dominated: how many executives should there be, how chosen, and how removed? Sustained attention on the executive's substantive powers came only during the final rush near the Convention's end. With only two weeks to go, the draft located many executive powers either in Congress or the Senate. Then, a compromise was reached on the method for selecting the President; a logjam broken, powers soon migrated from the legislature to the executive. What emerged from the Constitutional Convention was a Presidency with its own independent powers, equal to those of the legislature, one that both in theory and in practice would prove to be up to the demands of future generations.

  PRESIDENTIAL POWER AND WRITING A NEW CONSTITUTION

  DISCUSSION BEGAN ON June 1 with the Virginia Plan, introduced by Virginia Governor Edmund Randolph and privately drafted by Madison. The Plan included two of the three core executive powers identified by Blackstone, Locke, and Montesquieu: to "execute the National laws" and to "enjoy the Executive rights vested in the Congress by the Confederation" such as foreign affairs,2 but it lacked the veto over legislation or the power to pardon. Instead, it proposed a Council of Revision made up of the President and federal judges to review congressional acts. Madison broke the executive power down into the right to "carry into effect" the laws, to appoint inferior officers, and to perform other functions "not Legislative nor Judiciary in their nature" as Congress might delegate.3

  What the Virginia Plan granted in substance, it took away in structure. Its executive would be chosen by the legislature, would serve only one term, and might consist of more than one person. Thus, it would have no claim to direct popular support nor ability to influence legislation. It would have resembled the parliamentary system of government that exists in much of the world today, in which the executive branch is simply the leader of the majority coalition in the legislature. While the Virginia Plan forbade members of the legislature from serving in the executive branch, legislative appointment of multiple executives would have made the office another arena for legislative deal-making. Cabinet officers would have felt beholden to their supporters in Congress rather than to the chief executive. Even in foreign affairs, a President directly selected by Congress would enjoy little independence. As Charles Thach observed, if the Virginia Plan had prevailed, "the American executive must have been of a type resembling in many fundamental ways the executive of modern Switzerland."4

  Some wanted to create a weak President. Randolph believed an executive unified in one officer to be the "foetus of monarchy."5 Roger Sherman supported legislative election of the President because he is "nothing more than an institution for carrying the will of the legislature into effect."6 Sherman believed that Congress should appoint any number of individuals to head the executive branch, depending on the job at hand, and that Congress should be able to fire them "at pleasure." Early proposals that also won favor among the delegates limited the President to a single seven-year term. The main alternative to the Virginia Plan, the New Jersey Plan, proposed a multiple Presidency, chosen by the legislature and limited to one term.

  Almost from the start, however, several of the leading lights of the Constitutional Convention sought to move the Presidency toward the New York model. Wilson argued early on for a single President to be directly elected by the people. Unification of the executive branch in one person would give the "most energy, dispatch, and responsibility."7 He urged the delegates to toss aside Madison's council of revision, observing that a committee "oftener serves to cover than prevent malpractices." Wilson also wanted the President to have an absolute veto over legislation to protect his independence from legislative encroachment and to be eligible for an unlimited number of short terms, which would increase his popular accountability. Direct election by the people had proven both "convenient and successful" in New York and Massachusetts. Gouverneur Morris rose in support, commenting that otherwise, the President would become the "mere creature" of Congress and subject to "intrigue," "cabal," and "faction."

  While a radical change in structure, Wilson's proposal broke no new substantive ground. Wilson agreed with Madison that the President's power was mainly to carry out the laws and appoint officers. Wilson "did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace."8 Charles Pickney agreed that the executive should retain his traditional powers, but that they should not include all of the Crown's foreign affairs authority. He "was for a vigorous Executive but was afraid the Executive powers of [the existing] Congress might extend to peace & war which would render the Executive a Monarchy, of the worst kind, to wit an elective one."9 John Rutledge supported Wilson "for vesting the Executive power in a single person, tho' he was not for giving him the power of war and peace." Early supporters of an independent President worried that all of the "executive powers" would include making war and peace. But even the New Jersey Plan, noteworthy for its restrictions on the executive, declared that the President shall "direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General."10

  When the New Jersey Plan won supporters, Alexander Hamilton rose in support of a stronger executive. He proposed essentially a King, giving rise to lifelong suspicions that he was a closet monarchist. His "governor" would be selected by electors chosen by the people, and hold the office for life unless impeached for malfeasance.11 It would not just execute the laws but would have an absolute veto, make treaties and appointments with the advice of the Senate, and direct the military. The governor would exercise "the supream [sic] Executive authority of the United States." Hamilton admitted that he took his inspiration from the British monarchy, practically guaranteeing that his proposals would go nowhere. Hamilton never made a formal proposal to the Convention but used a radical speech to push the delegates into a reasonable compromise.

  By the end of the first week of discussion, the delegates agreed that a singl
e individual should head the executive. By August, the executive would become "Commander in Chief of the Army and Navy of the United States, and of the Militia of the Several States," and receive the power to execute the laws, to appoint officials, to call Congress and recommend legislation, to receive ambassadors, and to grant pardons. Out of concern over executive aggrandizement, the Senate initially received sole power over treaties and appointment of ambassadors, as well as the power "to make War; to raise Armies; to build and equip Fleets" and powers over taxation, spending, and the regulation of commerce. The Senate served as an executive council, modeled on those of the states, which shared executive power with the governor. Senators were to be elected by the members of the House rather than appointed by the state legislatures.12

  Further work on the executive awaited resolution of the most contentious issue of the Convention: the debate over whether Congress would represent the population or the states. In the Great Compromise of July 16, 1787, the small and large states finally agreed to a bicameral legislature with a Senate with equal voting power among the states, a decision that had a profound effect on the Presidency. As Jack Rakove has argued, as the Senate became the protector of state interests, it lost its special justification to manage foreign affairs. The Great Compromise rippled outward, affecting both federalism and the separation of powers.

  The Senate's transformation gave a new urgency to those who wanted a President to serve as a counterweight to Congress. Even Madison, who had included legislative selection in the Virginia Plan, now joined Wilson and Morris. "It was essential," he argued, "that the appointment of the Executive should either be drawn from some source, or held by some tenure, that will give him a free agency with regard to the Legislature."13 Morris laid out an innovative case for a strong independent executive. Reversing Montesquieu's contention that republics could only be small, Morris argued that only a President with vigorous powers could hold such a large nation as America together. Roger Sherman of Connecticut and Charles Pinckney of South Carolina objected that the people were too uninformed to choose the best candidate, that state favoritism would prevail, or that demagogues would dominate. Morris responded that an independent executive would balance Congress. Allow legislative selection of the executive, Morris warned, and the President "will not be independent of it; and if not independent, usurpation and tyranny on the part of the Legislature will be the consequence."

  Over the next few days, the Convention wavered between selection by the legislature or by electors chosen by the states or the people. Discussion ranged from whether the electors from faraway states could travel to the national capital to vote (an important consideration in the day of horse and sail) to whether foreign nations would bribe legislators. The delegates also went back and forth over the veto. In the first week of discussions, the convention agreed to a limited veto with a council of revision in which the President and members of the judiciary could block unwise, unjust, or improper laws. Instead of serving as a check on the executive, the council responded to fears that the executive would lack the political "firmness" to stand up to the legislature without support from the judiciary.14 Eventually, the Convention eliminated the council but kept the President's limited veto.

  A small group of delegates, known as "the committee of detail," took on the job of winnowing down the principles approved in June and July. It produced a draft Constitution in early August. Wilson, the consistent supporter of an independent executive, headed the committee, and it showed. The Constitution now vested "the executive power of the United States" in one man. The President served as Commander-in-Chief and held the right to appoint inferior executive officers, veto legislation, carry out the laws, issue pardons, receive ambassadors (the primary means of carrying out foreign affairs in the eighteenth century), and recommend legislation.15 The draft kept the powers to appoint judges and make treaties with the Senate, and gave Congress other elements of the British monarch's authority, such as raising armies, making war, and regulating commerce.

  Based on the most powerful state executive of the time, New York's, this draft became Article II of the Constitution. Far from favoring a weak executive, the Framers had chosen the strongest republican model available. Presidential power continued to gain as the end of the Convention drew near. On August 15, the delegates decided that a qualified veto was necessary to protect against congressional abuse. Wilson remarked that "the prejudices [against] the Executive resulted from a misapplication of the adage that the parliament was the palladium of liberty,"16 and where "the Executive was not formidable," people would likelier equate the "legislature and tyranny." Morris pressed for an absolute veto to guard against "encroachments of the popular branch of the Government." "If the Executive be overturned by the popular branch," he warned, "the tyranny of one man will ensue."17 Supporters of a strong executive even succeeded for a time in setting the votes needed to override a presidential veto at three-quarters of both houses of Congress, rather than the two-thirds we have today.

  War was next on the agenda. On August 17, Charles Pinckney moved that the power to "make war," then vested in Congress, be transferred to the Senate alone, because the former's "proceedings were too slow."18 The Senate, he thought, would be small and more familiar with foreign affairs. Pierce Butler of South Carolina responded that the Senate would suffer from the same problems as Congress, so the war power should be given to the President, "who will have all the requisite qualities, and will not make war but when the Nation will support it."

  James Madison and Elbridge Gerry of Massachusetts (who in later life would become the author of salamander-shaped electoral districts) proposed that the Convention amend Congress's power from "make" war to "declare" war. According to Madison and Gerry, the amendment would make clear the President's authority to "repel sudden attacks."19 Roger Sherman of Connecticut opposed that change because he wanted the executive to "be able to repel and not to commence war." Gerry responded that he "never expected to hear in a republic a motion to empower the Executive alone to declare war." George Mason of Virginia opposed "giving the power of war to the Executive," because he "was for clogging rather than facilitating war; but for facilitating peace." Yet, Mason supported the amendment. Rufus King of Massachusetts defended the proposal because giving Congress the power to "make" war "might be understood to 'conduct' it, which was an Executive function." With that comment last in mind, the delegates approved the Madison-Gerry amendment with eight states in favor and one against.

  The final understanding of the delegates remains controversial to this day -- perhaps because the amendment was made at the equivalent of 5:00 P.M. on a Friday.20 Yet, their changes to the war power made two things clear. First, the power to "declare" war was a narrower subset of the broader power to "make" war. Second, the changes to the war power followed the general trend near the end of the Convention to transfer authority to the President.

  Congress's power to declare war was not the only aspect of the war power. Declarations of war often followed the outbreak of combat and had the legal function of defining the status of hostiles and neutrals.21 The Declaration of Independence would have been the legal model uppermost in the delegates' minds. Issued more than a year after fighting had broken out with the British, the Declaration articulated the grievances against Great Britain, the grounds for the resort to armed hostilities, and the remedies that would bring the war to an end. When lawyers referred to the power to begin or to commence war, they used language broader than "declare." The Articles of Confederation had provided that Congress enjoyed "the sole and exclusive right and power of determining on peace and war," and South Carolina's constitution conferred the power to "commence" war upon its legislature.22 Article I, Section 10 of the Constitution declares that "No State shall, without the Consent of Congress... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." This is just the language and the procedure favored by modern scholars who believe that Congress ought to have the final say on
war. But the Framers turned from that language and divided the war powers between the President and Congress. Congress has a powerful influence over war through funding, but giving Congress the power to "make" war would encroach on authority best shared with the executive.

  The Convention soon followed by ending the Senate's monopoly on treaties. Some delegates, such as Charles Pinckney, believed that the Senate should "manage foreign affairs" and perform a variety of executive functions, but on August 23 the Convention gave the President the right to make treaties, subject to the Senate's approval. Madison observed that "the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties."23 Rakove has laid out a strong case that these "other obvious reasons" included a concern about the Senate's unrepresentative nature and a new respect for the President's democratic accountability.24 Although most commentators describe the treaty power as shared between the President and Senate, the Constitution weights matters heavily in favor of the former. The Constitution locates the treaty power in Article II, where presidential powers reside, not among Congress's powers in Article I. It gives the President the "Power to make Treaties," conditioned on "the advice and consent" of the Senate. The President decides whether to start negotiations, negotiates terms, and even after the Senate consents, determines whether to conclude the treaty. Combined with the authority to receive ambassadors and his general executive power, the President's role gives the executive branch the effective ability to control the setting of foreign policy and diplomatic relations with other nations.25