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

by John Yoo

  Not until the very end did the Convention forge the crucial democratic tie between the President and the American people. On the last day of August, the delegates referred undecided questions to a committee of unfinished business, composed of one delegate from each state. Four days later, this committee returned with a proposal for the Electoral College, which was approved two days later. It represented a compromise among supporters of state involvement, popular election, and congressional choice, but its shift toward selection by the people is unmistakable. Supporters of an independent executive, such as Wilson, Madison, and Morris, had fought against any system that gave the states or Congress control over the selection of the President.26 At the same time, it is undeniable that many of the Philadelphia delegates were suspicious of undiluted direct democracy, which had caused the problems in the states that had brought them together. They wanted a virtuous President who would pursue the national interest, even if that meant sometimes resisting the temporary passions of the people. The rise of political parties to filter and then support a few candidates had not yet occurred. Parties would have been associated in these delegates' minds with "factions" subversive of the public good.

  The Electoral College was the Framers' answer to the threat of legislative supremacy and demagogic popular leadership. State legislatures would set the process for choosing electors, which would amount to the number of the state's Representatives and Senators. These electors would then vote for two candidates, one of whom had to hail from another state, to reduce the influence of home-state favoritism and regionalism. Electors would meet in their states and send their votes to the President of the Senate, who would open them and count them in Congress. The winner would become President, and the runner-up would become Vice President. If no one received a majority, members of the House would choose the President from the top five vote-getters, with each state delegation casting a single vote.

  Hamilton and Madison believed that the Electoral College would achieve both of their goals by enlarging the sphere to select the President. Demagogues would be less likely to reach the nation's highest office if voted upon by a national electorate. As Hamilton wrote in Federalist 68: "[I]t will require other talents, and a different kind of merit to establish him in the esteem and confidence of the whole union, or so considerable a portion of it as would be necessary to make him a successful candidate" for the White House.27 Gouverneur Morris declared in the Convention that an "election by the people at large throughout so great an extent of country could not be influenced by those little combinations and momentary lies which often decide popular elections within a narrow sphere."28 Or as Hamilton explained: "Talents for low intrigue, and the little acts of popularity may alone suffice to elevate a man to the first honors in a single state."29 But a nationwide election would prevent the worst from rising high. Morris had predicted earlier in the Convention that the people "will never fail to prefer some man of distinguished character or services," or of "continental reputation."30

  Looking back, the Electoral College resembles a Rube Goldberg contraption, a complicated system of voting devised to avoid both direct popular selection and any formal role for Congress and the states. The states still have a role, because the number of electoral votes per state includes Senate seats, and because elections with no majority winner are thrown to the House to be decided on a one-vote-per-state basis. This backup system provides for legislative influence if no continent-wide favorite emerged in the Electoral College. Recognizing that this process posed the same problems as congressional election of the President, Madison and Hamilton by the end of the Convention supported selection of the President by only a plurality of electoral votes. They lost that question to the small-state delegates. Still, except for this, the President's election did not depend on Congress, and the President would be broadly representative of the American people.

  Further transfer of powers from the Senate to the President followed. The President's control over treaties and the appointment of ambassadors, with Senate participation, was formalized. Aside from its veto over treaties, the Senate no longer had any role in foreign affairs; it was now the President who enjoyed the initiative in international relations. Morris argued that this was correct because the President was "the general Guardian of the National interests."31 The Senate also lost the authority to appoint federal judges. Now, the President would appoint with the Senate's "advice and consent." Like treaties, the Appointments Clause placed the President in the lead position: The President nominates first, and after receiving Senate consent, makes the appointment. Combined with his duty to take care that the laws are faithfully executed and his authority to appoint all inferior executive branch officers, the appointment of judges ensured that the President would control the enforcement of the nation's laws. One last decision before the close of the Convention did not go the President's way -- the vote to override a presidential veto of legislation was reduced from three-quarters of Congress to two-thirds, which diminished the President's role in the legislative process but still guaranteed that the President could defeat most bills attacking executive power.

  Scholars disagree about the significance of these last-minute changes. The struggle over foreign affairs has produced the sharpest recent conflicts about the scope of presidential power. Several leading law professors argue that the Framers intended only limited exceptions from a general congressional control over foreign affairs and national policy. Other scholars, such as Clinton Rossiter have, over the years, made the case that the Framers intended to vest the foreign affairs power in the President.32 Some historians argue that presidential power grew out of distrust of the Senate, while Edward Corwin famously observed that the Constitution "is an invitation to struggle for the privilege of directing American foreign policy."33 Whatever the precise intent of the Framers, Anglo-American constitutional and political tradition as described by Locke, Montesquieu, and Blackstone, and put into practice by British Kings and Parliaments, lodged the foreign affairs power in the executive. Nothing in the new constitutional text and its surrounding discussions moved that baseline. Perhaps more important, the renovated Presidency ensured that future Presidents would hold the initiative in setting policy and executing it. George Washington lost no time in doing just this, and the First Congress acquiesced to it.

  With its work done, the Convention decided to adjourn for the last time. Throughout the debates, Benjamin Franklin had stared at George Washington's chair, which bore the image of a rising sun. On that last day, Franklin told the Convention that during the last three months he had wondered "whether it was rising or setting. But now at length I have the happiness to know that it is a rising and not a setting sun."34 In part, Franklin's optimism was triggered by the innovation of the American Presidency. Hoping to tame the executive with popular selection, a radical choice in a world of monarchies, the Convention empowered the new government with an independent executive who held the authority to enforce the laws and to manage foreign affairs. Left unaddressed was the third leg of the executive's historical powers, the prerogative to override written law when crisis or emergency dictated. Yet, the executive power had been established so as to allow future occupants of the Presidency to claim inherent authorities, among them the conduct of foreign policy and the protection of the national security.35

  PRESIDENTIAL POWER AND THE RATIFICATION PROCESS

  AFTER PHILADELPHIA, the political momentum behind constitutional reform moved to the states. Leading accounts of the Presidency often overlook the state ratification process: Schlesinger's iconic Imperial Presidency and Michael Genovese's more recent The Power of the American Presidency, for example, limit discussion of the state debates to a few quotes from The Federalist.36 Other leading books jump straight from the Philadelphia Convention to the Washington administration, or only begin in 1789.37 The Constitutional Convention, encapsulating discussion and votes at a single time and place, is understandably more straightforward to study, whereas the ratification process took
place over the course of a year at unruly conventions spread across the country, in open-air and closed-door meetings, and in letters and newspaper articles.

  Yet, the ratification debates arguably have greater political legitimacy than the Philadelphia Convention. Madison and Wilson themselves admitted that the Philadelphia Convention proposed, but had no authority to establish, a new Constitution. The Constitution itself proposed to replace the Articles of Confederation only after the approval of specially elected conventions of nine states. Ratification gave the Anti-Federalists the opportunity to challenge specific provisions and to force its supporters, the Federalists, to explain how they would work in practice. Adoption of the Constitution was no sure thing. Of the five states that ratified within four months, only Pennsylvania experienced significant Anti-Federalist resistance, and still the Federalists there prevailed by a margin of two to one.38But in the critical states of Massachusetts, Virginia, and New York, the voters had elected a majority of Anti-Federalist delegates. Without these states, the Constitution surely could not have succeeded; Virginia, in particular, was the key to ratification. The Constitution survived in Massachusetts only narrowly, by a vote of 187-168, apparently after Federalists promised Anti-Federalist John Hancock the Vice Presidency; in Virginia by only 88-80; and in New York by only three votes. The narrow margins and the economic and political significance of these states make their understanding of the Constitution particularly important.

  One factor influenced ratification above all others -- George Washington. It is impossible to overstate the influence of the "Father of the Country" on Americans of the founding generation. Washington had led a ragtag, outmanned, and outgunned army to victory over one of the most powerful nations in the world, then prevented his army from undermining civilian control, famously surprising a meeting of officers who had planned to launch a military coup (known to historians as the "Newburgh Conspiracy"). When he began to read a document to them with the words, "Gentlemen, you will permit me to put on my spectacles, for I have not only grown gray but almost blind in the service of my country,"39 officers in attendance wept, and the conspiracy collapsed. He achieved worldwide renown as a modern-day Cincinnatus when, at the end of the war, he returned all power to Congress and retired to private life, and then placed his considerable prestige behind the Constitution by agreeing to chair the Philadelphia Convention. As Pierce Butler wrote afterward, he did not believe that the President's powers "would have been so great had not many of the members [at Philadelphia] cast their eyes towards General Washington as President; and shaped their Ideas of the Powers to be given to a President, by their opinions of his Virtue."40 That prospect no doubt allayed fears about abuses of executive power.

  When the Constitution went to the states for ratification, only the text of the Constitution was before the voters; Madison's notes of the Convention debates remained secret until his death in 1836. The enfeebled governorships of the Pennsylvania or Virginia constitutions had been abandoned in favor of an independent executive in the New York and Massachusetts mold. Leadership was centralized in one person, eligible for unlimited terms, fully responsible for the executive branch, to be chosen by an Electoral College, not Congress. No advisory council diluted the President's authority or responsibility. Instead, he had the power to appoint executive branch officials, Justices of the Supreme Court, and lower court judges, subject only to the advice and consent of the Senate. The President would have a qualified veto, giving him a share of the legislative power as well as the means to defend himself from any congressional efforts to strip him of his powers. He could issue pardons, adding to his control over law enforcement through the Take Care Clause.

  The President would also be the Commander-in-Chief of the nation's military, take the lead role in treaties and in appointments, and have exclusive power to execute the laws. A legal point probably only dimly perceived by the public, but certainly well understood by the lawyers of the Convention, Article II places the open-ended "executive power" of the United States in the President, in contrast to Article I, which says that Congress is to have only those "legislative powers herein granted." The idea of the prerogative was left unaddressed, and the exact division of power over foreign affairs unresolved. Students of executive power, from Machiavelli through Blackstone, or of British constitutional history, would have recognized the traditional powers of the executive in the new Constitution.

  The new Congress attempted to repair the defects of the state assemblies. The representative national legislature had its own powers of taxation and funding, and the authority to directly regulate private conduct independent of the whims of the states. Congress held significant foreign affairs powers of its own, including raising and funding the military, declaring war, defining punishments for violations of international law, and regulating interstate and international commerce. Yet, it no longer had "the sole and exclusive right and power of determining on peace and war" nor the sole authority of "entering into treaties and alliances," as it had had under Article IX of the Articles of Confederation. The Framers thought that dividing these powers would stimulate executive initiative in war and peace, checked by legislative control over funding and domestic regulation as in Great Britain.

  Anti-Federalists attacked the new Constitution as a repudiation of the Revolution, focusing mainly on the powerful national government and the absence of a bill of rights. They charged that the new executive was nothing but the return of monarchy in a different guise, but on specifics their arguments were disorganized and scattershot. Federalists had the advantage of controlling the agenda. Anti-Federalist opposition nevertheless forced the Federalists to describe the separation of powers as they expected it to work in practice, and the reasoning behind the grant of executive power.

  Anti-Federalists quoted Montesquieu's warning that the executive and legislative powers had to be separate; they predicted that these parchment barriers would fail without the checks and balances of social classes as they existed in the mother country. They attacked the establishment of a Senate, which resembled the aristocratic House of Lords, and complained that the Senate would bully both the House and the President to do its bidding. George Mason made the Senate a centerpiece of his explanation for refusing to sign the Constitution. Its role in treaties, appointments, and impeachments, he wrote, "will destroy any Balance in the Government, and enable them to accomplish what Usurpations they please upon the Rights & Libertys of the People."41

  Eager to find fault with the new Constitution, some Anti-Federalists even thought the delegates had not gone far enough to empower government leaders; some thought that there should be no division between executive and legislative power to serve as a brake on the government. One Anti-Federalist writer, "Cincinnatus," decried the "absurd division" of the executive power between the President and the Senate, which "must be productive of constant contentions for the lead, must clog the executive of government to a mischievous, and sometimes to a disgraceful degree."42

  Some warned that the new office of President might turn into a monarchy. "Cato," one of the first widely circulated Anti-Federalist writers (almost all political writers during the Revolution and early American national period wrote under pseudonyms, many drawn from significant figures in ancient Roman history), asked in New York, "[W]herein does this president, invested with his powers and prerogatives, essentially differ from the King of Great-Britain?"43 An "Old Whig" in Pennsylvania maintained that the Constitution's powers made the President "in reality to be a king as much a king as the King of Great-Britain, and a King too of the worst kind; an elective King."44 The "Federal Farmer," considered by historians to be the most able and moderate of the Anti-Federalist writers, worried that the lack of term limits might give a single man or family control of the office for decades and that the right to appoint officers would lead to corruption like that of Georgian England.

  Anti-Federalists linked the Commander-in-Chief role to the prevalent dread of standing armies. "Brutus," another lead
ing Anti-Federalist pamphleteer, warned that "the evil to be feared from a standing army in time of peace" went beyond military support for their leader to the danger of military coups, saying that the "equal, and perhaps greater danger, is to be apprehended from their overturning the constitutional powers of the government, and assuming the power to dictate any form they please."45 There would "not be wanting a variety of plausible reasons to justify the raising" of an army, he warned. "Tamony" became the target of Hamilton's wrath for writing, "[T]he commander of the fleets and armies of America, ... though not dignified with the magic name of King, he will possess more supreme power, than Great Britain allows her hereditary monarchs" because armies could receive funds for two years at a time and "his command of a standing army is unrestrained by law or limitation."46A President at the head of the armies, supported by a Senate combining all three powers of government (the Senate passed legislation, participated in making treaties and appointing officers, and tried impeachments), could become corrupt and crush the liberties of the people. The Federal Farmer predicted that the new central government would be unable to execute its powers "without calling to its aid a military force, which must very soon destroy all elective governments in the country, produce anarchy, or establish despotism."47