by John Yoo
Threats to the national security led to greater centralization of foreign affairs power in the executive. Article II gave the President the roles of Commander-in-Chief and Chief Executive. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand," Hamilton wrote in Federalist 74. "The direction of war implies the direction of the common strength," he continued, "and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority." It was for this reason, Hamilton argued, that the Constitution vested executive authority in one person, rather than the multimember executives of the Continental Congress and the states.75
The executive's control, however, was incomplete. Making treaties would remain executive in nature -- the power remained in Article II -- but because of their status as supreme federal law would require Senate consent. While the President would control military operations and diplomatic relations, he would not have the power to raise the military, issue the rules for its governance, nor enact any legislation with domestic effect. Appropriations for the military could only run two years, giving Congress a regular opportunity to review the executive's foreign policies.
Not wishing to make themselves easy political targets, Federalists downplayed comparisons of the President's powers with those of the British Crown. They emphasized the Presidency's fixed term, its obedience to the Constitution and the laws, and its lack of independent funds. Hamilton observed that the British King was a permanent, hereditary monarch, with an absolute veto and the right to raise armies and navies and declare war. By contrast, he argued in Federalist 69, the President is Commander-in-Chief, in which his authority was nominally the same as the King's, "but in substance much inferior to it," because the President could not declare war or create the military. Hamilton's rhetoric got the better of him here, as even in Britain by this time, Parliament exercised the power to raise armies. The only real difference between the King's and the President's military powers was Congress's power to declare war. Tellingly, Hamilton did not define the meaning of "declare."
Federalists ultimately referred to British history to explain the checks on executive power. In the Virginia ratifying convention, the Anti-Federalists were led by the fiery oratory of former governor Patrick Henry, still famous for his "Give me liberty or give me death" speech. Henry claimed that the Constitution "squints toward monarchy" because the "President may easily become a King." "If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute!" Henry exclaimed. At the head of an army, the President "can prescribe the terms on which he shall reign master" and will violate the laws and "beat down every opposition."76 The Senate and the President might conspire to vote the executive a permanent military with which to impose an "absolute despotism," or the President might simply declare himself king.
Federalists countered that a President could never succeed in establishing a military dictatorship, because the other branches could stop him using their own constitutional powers. This marked a significant turning point in the theory of executive power. Federalists did not respond with the traditional checks-and-balances approach of mixed government. Unlike the Anti-Federalists, the Federalists did not believe that an aristocracy existed or was likely to rise, or that the President would represent a particular social class. Instead, they defended the Constitution by arguing that the separation of powers would rely on functionally defined branches of government -- executive, legislative, and judicial -- checking each other.77 In response to Henry, Federalists pointed to Parliament's funding powers as a check on war. Madison agreed with Henry that "the sword and the purse are not to be given to the same member," but he disagreed that the American government combined the two. "The sword is in the hands of the British King; the purse in the hands of the Parliament. It is so in America, as far as any analogy can exist."78 Federalist George Nicholas argued that Congress's sole control over establishing and funding the military "will be a powerful check here."79 Both Nicholas and Madison drew upon the examples of political conflict from British history to support the idea that government functions, rather than social class, would provide balance to the government.
Although it would have been to their advantage, the Federalists did not argue that Congress's power to declare war -- or judicial review -- would check the President. Instead, the ratification debates show that they expected each branch to exercise its unique powers to block unconstitutional or mistaken decisions. In another area of foreign affairs, for example, Federalists argued that Congress could contain the executive's treaty power (already conditioned by the Senate's advice-and-consent role) by refusing to enact laws or appropriate funds needed to bring the United States into compliance.80 The Constitution created a division of labor in which the President, Congress, and the courts cooperate, but also compete, to promote the national interest. After the Revolution, the weakening of the executive branch and the dominance of the state assemblies had thrown that healthy competition out of joint. For the system to succeed, the Presidency had to have the independence and powers to allow it both to stand up to Congress and to properly pursue its own functions, which included the powers over foreign affairs, administration of the laws, and the protection of the national security.
CONCLUSIONS
IN RATIFYING THE CONSTITUTION, the people rejected the radical innovations of the Revolution. Defenders of that status quo, who had promoted a republican faith in the legislature's purity in transmitting popular wishes, had lost. Gone were the multiple executives, advisory councils, and legislative selection of the governor. Yet, Federalists did not advocate a return to the past. The Presidency was not founded on divine right. The Constitution created a republican executive to be elected by the nation as a whole, with a connection to the people independent of Congress. The possibility of reelection would keep the President mindful of the approval of the electorate, but with a different time horizon than the two-year members of the House and the six-year Senators. The executive would be a truly coordinate and independent branch of the government.
The new Constitution rehabilitated the executive both structurally and substantively. Through the ratifying conventions, the people rejected the revolutionary view of executives as largely controlled by the legislature. By the end of the ratification, the Federalists had succeeded in enacting a constitutional plan that restored the executive's core powers while making it directly responsible to the people as a whole. They had republicanized the executive, or in Harvey Mansfield's words, they had "tamed the Prince." It would be the job of future Presidents to realize the Framers' vision of an energetic and empowered executive, but one constrained by a Constitution and the political system that would grow from it.
CHAPTER 3
George Washington
ASINGULAR FACTOR influenced the ratification of the Constitution's article on the Presidency: all understood that George Washington would be elected the first President. It is impossible to understate the standing of the "Father of the Country" among his fellow Americans. He had established America's fundamental constitutional principle -- civilian control of the military -- before there was even a Constitution. Throughout his command of the Continental Army, General Washington scrupulously observed civilian orders and restrained himself when a Congress on the run granted him dictatorial powers. He had even put down, by his mere presence, a potential coup d'etat by his officers in 1783.1 Washington cannot be quantified as an element of constitutional law, but he was probably more important than any other factor.
The Revolutionary War had revealed Congress to be feeble and the states to be unreliable. Washington had exercised broad executive and administrative authorities that went well beyond battlefield command to keep the army supplied. This experience made Washington a firm nationalist who supported a more effectively organized and vigorous national government. Though he barely spoke at the Constitutio
nal Convention, Washington placed his considerable prestige behind the enterprise. During ratification, he launched a one-man letter-writing campaign to encourage Federalists throughout the country, and particularly in his critical home state of Virginia, to win the Constitution's approval. Washington remains the only President to be elected by a unanimous vote of the Electoral College.
Because the American republic grew so successfully, we tend to treat Washington's decisions with an air of inevitability, but the constitutional text left more questions about the executive unanswered than answered. Article II vested the executive power of the United States in a single President, but it did not list its components (unlike Article I's enumeration of legislative powers). It did not create any advisors, heads of departments, or a cabinet, not to mention a White House staff; specify how the President should interact with Congress, the courts, or the states; nor describe how the President and the Senate were to exercise their joint powers over treaties and appointments.
Washington filled these gaps with a number of foundational decisions -- several on a par with those made during the writing and ratification of the Constitution itself. His desire to govern by consensus sometimes led him to seek cooperation with the other branches. He was a republican before he was a Federalist, but ultimately Washington favored an energetic, independent executive, even at the cost of political harmony. Washington centralized decision-making in his office so that there would be no confusion about his responsibility and accountability, and his direct orders sped quickly through the small federal bureaucracy. He took the initiative in enforcing the law and followed his own interpretation of the Constitution.
To Washington, the departments and their secretaries served only as "dependent agencies of the Chief Executive." As Leonard White has written, the President made "all major decisions of administration" and took full responsibility for them.2 He managed diplomatic relations with other countries and set the nation's foreign policy. At the end of his two terms, the Presidency looked much like the one described in The Federalist. Hamilton's outsized performance as Secretary of the Treasury helped, but the real credit goes to Washington.3
None of this was foreordained. Washington could have chosen to mimic a parliamentary system with cabinet secretaries who represented different factions in the legislature or a balanced government with executive branch officials drawn from an aristocratic social class. He could have assumed the function of a head of state and given department secretaries freedom over their jurisdictions. Or he could have considered the Presidency as Congress's clerk, draining any initiative from the job and committing himself solely to carrying out legislative directions. He might even have thought of himself as the servant of the states (he certainly did not; on a trip to Boston, President Washington refused to call on Governor John Hancock, instead forcing an ill Hancock to come to him first).4
Washington ranks in the most recent scholarly poll as our nation's greatest President. Some might think that his high standing rewards him, like Jefferson, for his achievements before he assumed office, but this view understates the second source of his greatness -- establishing a stable government under law that has endured to this day. Washington led the nation through its first growing pains, restored the country's finances, kept the nation out of a dangerous European war, opened the West to American expansion, and saw the Constitution through the appearance of the first political parties (something the Framers did not foresee and would have opposed). Washington did all of this without seeking popularity and without enjoying what we would think of today as political talents. He was a natural leader, one of the finest horsemen of his age, and a tall and strong man. He had single-handedly ended a riot among northern and southern soldiers on Boston Commons by grabbing the leaders in each hand and shaking them into submission. Washington was stern, distant, and concerned above all about his reputation. He carried himself with gravitas, projected a demeanor of republican simplicity and virtue (hence the fable about the cherry tree), and yet struggled his whole life to control a ferocious temper. Every President since Washington's day has had the impossible task of measuring up to his founding example.
ESTABLISHING THE PRESIDENCY
AFTER HIS ELECTION in early 1789, Washington took his time getting to the nation's capital in New York City. He wanted to give Congress time to count the electoral votes, avoid the appearance of unseemly eagerness, and allow the people to see the physical symbol of the new national government. Once installed, Washington made clear who was in charge.
Three approaches to organizing the executive branch existed.5 Some Senators believed they would share administrative authority because of their say over appointments and the example set by the state advisory councils. A second view, identified with Alexander Hamilton, held that department heads would perform the same positions as ministers in Great Britain; they would exercise significant independent discretion and coordinate the making of policy in Congress and its implementation by the executive. Washington chose a third, which resembled the organization of his military command. The President alone would exercise the executive power. He would receive advice from his department secretaries, who would supervise the inferior officers in their agencies. All matters of executive policy would come to him. He would either make all significant decisions or delegate them. Administration, in the words of historian Forrest McDonald, was "highly personal, after the fashion of the pre-bureaucratic eighteenth-century world."6
Washington's initiative became apparent within a month of his inauguration. Even though there were no federal laws to enforce nor positions to fill, Washington quickly took over the existing administrative machinery of the Articles of Confederation. He ordered the ministers of war and foreign affairs and the Board of Treasury to provide him with "an acquaintance with the real situation of the several great Departments, at the period of my acceding to the administration of the general Government" and a "full, precise, and distinct general idea of the affairs of the United States."7 He made clear that subordinate executive branch officials were his assistants, rather than independent power centers. Washington wrote that the "impossibility that one man should be able to perform all the great business of the State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust."8
Washington could not have accomplished this alone. He had a willing and able ally in the 38-year-old Congressman from Virginia, James Madison. Even though he had played the leading intellectual role in the drafting of the Constitution, had cowritten the newspaper editorials that would become The Federalist, and had led the forces for ratification in the Virginia convention, Madison had barely won election to the House due to Patrick Henry's opposition. Once there, Madison promoted Washington's policies -- a position that would not last into the second term. Madison is what we would today think of as a coalition builder: organizing behind the scenes, ceding political credit to others, acting through committees and larger bodies, yet always moving others toward his preferred goal. What he lacked in political gifts -- he was short, fearfully shy, and had a weak voice -- he more than made up for in his genuine intellect, willingness to work the longest hours, and meticulous preparation. It is no wonder that he has always been a favorite of scholars.
Madison took the lead in enacting legislation to establish the government, from the constitutional amendments that became the Bill of Rights to the first direct national taxes in American history. Madison likewise managed the debate over the establishment of the first great executive departments, what Daniel Webster would later call the "Decision of 1789."9 The key issue concerned the authority to remove the heads of the departments of Foreign Affairs, War, and the Treasury. Four possibilities existed. First, the Constitution may have intended that the President exercise the power alone, with the Senate's role in confirmation being the sole exception from his general control over appointments. Second, it could have reserved the right to the
President and Senate together, under the idea that the same process should be used to reverse a decision as to make it. Third, removal might only occur through impeachment. Or fourth, the Constitution could leave the power to Congress, as part of its power under the Necessary and Proper Clause, to establish the departments in the first place.
Decision of this question had profound implications for presidential control of the executive branch. The constitutional text is silent as to whether cabinet officers must obey presidential orders, and chief executives to this day back up their commands with the implicit threat of removal. If cabinet members could only be removed by impeachment, or with the advice and consent of the Senate, they would feel little fear when ignoring presidential directives. Congress also recognizes this relationship between removal and control, and since the New Deal has tried to impose conditions on the removal of officials who work for the independent agencies. The 1978 Ethics in Government Act, for example, created an independent prosecutor by prohibiting his or her removal except for committing a felony or other violation of the law. Impeachment or congressional discretion over removal would have created even greater disruption by transferring effective control over subordinate executive officials to the legislature. Only an inherent removal power in Article II's undefined grant of the executive power allowed control of subordinate officers by the President.