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

by John Yoo

  Under the pseudonym "Helvidius," Madison took issue with every point of Hamilton's constitutional arguments.91 He dismissed Locke and Montesquieu's classification of foreign affairs as executive in nature because they were "evidently warped by a regard to the particular government of England." Making treaties and declaring war were legislative powers because they had the force of law; therefore, the President could not exercise them. "The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws," Madison wrote. "All his acts therefore, properly executive, must presuppose the existence of the laws to be executed." The Constitution vested the power to declare war in Congress and gave the Senate an equal share in the treaty power, confirming that they set private rules of conduct made the law of the land by the Supremacy Clause. To allow the President a share of the legislative power "is an absurdity -- in practice a tyranny."92

  Madison's deeper argument was that placing the power to start and wage war in the same hands risked tyranny. "Those who are to conduct a war cannot in the nature of things be proper or safe judges whether a war ought to be commenced, continued, or concluded.93 Why? Because, according to Madison, "war is in fact the true nurse of executive aggrandizement."94 In war, "physical force is to be created," "the public treasures are to be unlocked," "the honors and emoluments of office are to be multiplied," and "laurels are to be gathered," and all are to be placed at the disposal of the executive. It is an "axiom," therefore, that "the executive is the department of power most distinguished by its propensity to war." Pacificus's broad reading of the vesting of the executive power in the President, Madison retorted, was nothing less than an effort to smuggle the British Crown into the Constitution.

  History has looked more favorably on Hamilton's arguments than Madison's. Helvidius claimed rather unpersuasively that foreign affairs were legislative in nature or shared between the branches, and he never directly addressed Hamilton's argument about Article II's vesting of the executive power in the President.95 It was difficult for Madison to deny that Article II granted the President some unenumerated powers, in light of his arguments during the removal debate. Madison ultimately rested on the narrower point that the President could not interpret treaties in a manner that prevented Congress from exercising its own plenary constitutional power to declare war.96 The proclamation, however, did not prevent Congress from declaring war, if it wished. Washington's actions only had the effect of preserving the status quo.

  Despite the partisan divisions, the Helvidius-Pacificus debates and the neutrality controversy demonstrate some common ground. No one doubted that the President held the initiative in foreign policy, nor did Madison take serious issue with the idea that the executive had the power to interpret or even terminate treaties. Madison and Jefferson were making a broader argument against unenumerated executive powers and the structural point that those powers could not be used to supplant Congress's own authorities. Hamilton agreed with this up to a point, noting that Congress's power to declare war gave it the final word on whether the United States was in a state of war with another country. The Constitution's explicit grant of a specific power to Congress prevents the President from usurping that power, just as Congress cannot use its own plenary powers to invade the proper scope of the executive. We can see this balance in Washington's unsuccessful efforts to prosecute individuals for violating the proclamation. Only Congress could regulate the conduct of citizens within the United States, and it was not until Congress enacted criminal legislation that prosecutions could succeed.97

  The proclamation set one of the most important precedents for executive power: Presidents henceforth would exercise the initiative in foreign affairs. Jefferson and Madison wanted to limit the executive's powers where they were perhaps needed most -- in foreign affairs. But the growth of the nation and its interests would place increasing pressure on their constitutional vision. As the effect of foreign affairs on the nation grew, the powers of the office would respond to keep pace. Still, Hamilton's view required no prerogative, no ability of the President to act outside of the Constitution when necessity demands. He believed that the Constitution gave the President, through the grant of "the executive power" of the government, all of the authority necessary to handle exigencies and unforeseen circumstances. Jefferson and Madison, on the other hand, fought against an elastic reading of presidential power, and as Jefferson's opinion on the bank showed, generally in favor of a strictly limited federal government. This would force them, surprisingly, into the position of relying on the theory of an extra-constitutional presidential prerogative when they assumed power in 1800.

  EXECUTIVE PRIVILEGE

  WASHINGTON'S LARGELY successful efforts to keep the United States out of the European wars called on him to define executive power one last time in his last year in office. The occasion was the Jay Treaty, which sought to resolve long-term issues plaguing Anglo-American relations. Great Britain continued to occupy forts within the Northwest Territory, which under the 1783 peace treaty it was required to evacuate, on the ground that British creditors could not recover pre-revolutionary loans made to Americans. British officials in the area caused constant trouble by encouraging local Indians to oust the Americans from the territory. A more immediate difficulty was Britain's naval war against France. American merchants and shippers were profiting handsomely by selling to both belligerents, with the trade between the Caribbean colonies of the two great powers being especially lucrative. In 1793, Britain declared an embargo against France, seized neutral ships carrying contraband including food, and seized sailors on American ships who were allegedly British deserters. Later that year, Britain imposed a blockade on the French West Indies trade, leading to the immediate seizure of 250 American merchant ships in the area.98

  Britain's seizures of American shipping stoked a war scare. Congress rejected proposals for a 15,000-man army but agreed to a temporary embargo on Great Britain and the construction of six daring new frigates, America's first blue-water navy. After news came that Britain had rescinded its embargo of the French West Indies, Washington sent Chief Justice Jay to London as a special envoy to settle all outstanding disputes. Jay reached an agreement in November 1794, which arrived in the United States in March. In Jay's Treaty, Britain agreed to evacuate the Northwestern forts, allow limited American trade with the West Indies, grant most-favored-nation tariff treatment to American imports, and create an international commission (the first of its kind) to arbitrate the debt claims, the seizures of American ships, and the U.S.-Canada border. Jay failed to reach any settlement on slaves carried off by British forces at the end of the Revolution or to get British commitment to the principle that neutral ships could carry goods to any of the belligerents. Under the circumstances, it was probably the best deal possible: it ended the British threat to the Western territories and kept the peace for another 17 years. Many historians today consider the Jay Treaty a success and another example of Washington's leadership.99

  Opposition by Jefferson's supporters was so fierce that it cemented the emergence of the two-party system in American politics. In June 1795, a 20-10 Federalist majority in the Senate barely approved the treaty (except for the provision on the West Indies trade, which it rejected). Washington ratified the treaty in August. When the text became public, large protests erupted throughout the country. Jeffersonians sought to capitalize by blocking measures in the House needed to implement the treaty, such as changes in tariff schedules and appropriations for the compensation of British claims. Hoping to reveal embarrassing details within the administration, the House voted 62-37 in March 1796 to request all of the papers related to Jay's mission. On earlier occasions, the administration had supplied papers in response to congressional investigations, one into St. Clair's defeat by the Indians, the second into allegations of financial irregularities by Hamilton. Although he cooperated with Congress on these occasions, Washington had taken the view that he could refuse if the disclosure of the information would
harm the public interest.100 Even if the Presidency could lay claim to a right of executive privilege, the benefits of harmony with the legislature and maintaining public confidence in government would usually prevail.

  This time, Washington chose to place the confidentiality of executive deliberation above good relations with Congress. Only five days after the House sent its request, Washington responded that it had no constitutional right at stake. To allow the House to see the papers would create "a dangerous precedent."101 The Constitution had vested the power to make treaties in the President, with the advice and consent of the Senate, because of the need for secrecy in diplomatic relations. Expanding the House's role would undermine the nation's ability to keep secrets and make it difficult, if not impossible, to manage foreign affairs effectively.

  Washington observed that the Framers had explicitly rejected any role for the House in treaty-making, and had included the Senate to protect state interests -- a fact he knew well as President of the Constitutional Convention. The House had an obligation to implement the treaty, as it had already carried into effect without question all previous ones. If the House had a legitimate constitutional claim to the papers, Washington might comply, but here he need not consider it. "It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives," Washington wrote, "except that of an impeachment which the resolution has not expressed."102 Jeffersonians were shocked, Federalists overjoyed. Efforts to block the treaty soon lost steam, in part because of Washington, in greater part because the restoration of the international carrying trade sparked an economic boom.

  Debate has continued to this day over whether Washington correctly refused the House's demand for information. He did not describe his claim as "executive privilege" or ground it in a broad theory of the President's right to protect internal communications and advice, as the Supreme Court would in the Watergate tapes case.103 Washington kept his claim carefully circumscribed to the House's exclusion from treaty-making. He had turned over all of the papers to the Senate as part of the process of advice and consent. Washington, however, clearly believed that his right to withhold information from Congress extended beyond that narrow context. In 1794, the Senate requested all diplomatic communications between the American envoy to France (who was then Gouverneur Morris) and the Secretary of State. Attorney General William Bradford advised that the President could withhold correspondence whose revelation would harm the public interest, and the other members of the cabinet agreed. Washington provided the correspondence but informed the Senate that he had not given them material that, in his judgment, ought not to be publicly communicated.104

  Washington's arguments have broad implications. He consciously ignored the House's legitimate constitutional right to gather information to appropriate money and regulate trade.105 To say that the House had a right to the documents only if it were considering impeachment was an overstatement, to say the least. Washington based his refusal in part on the need for secrecy in foreign affairs, referring to the harm that would arise if the government could not act with discretion in negotiating agreements. While limited to treaties, Washington's decision would provide the foundations for future Presidents to expand their right to keep from Congress and the courts any information whose disclosure would harm the national interest.

  CONCLUSIONS

  OUR CONSTITUTION USUALLY grants those elected to the Presidency their legitimacy; with Washington, it was the reverse. His standing as the Father of the Country bestowed legitimacy on the Constitution. It is hard to imagine another member of the founding generation who could guarantee that the Constitution would overcome the centrifugal forces of its early years. Washington placed at the service of the young government his record as the general who had won the nation's independence, and his reputation for republican virtue etched in memory when he had stepped down from command.

  Washington was not the greatest simply because he was the first. He did more than serve as the ceremonial head of government. Understanding instinctively that his actions set the example for his successors, Washington made decisions that fulfilled the Federalists' hope for independence and energy. He reserved to the executive control over the selection of government nominees; treated all subordinates as part of a unitary executive branch, with himself at the top; and fought to keep the internal deliberations of his advisers confidential.

  Washington believed he had to interpret the Constitution independently in executing his powers, whether by signing proposed bills or implementing those on the books. When it came time to enforce national laws and policies, Washington led the troops personally to demonstrate the energy and authority of the new government. In foreign affairs, Washington read the Constitution to give him the executive's traditional leading role, including the interpretation of treaties and international law, the deployment of military force, and the conduct of diplomatic relations. He moved forcefully to keep the nation out of the European wars and to reach a settlement with Great Britain.

  Washington demonstrated that a President could not succeed without his constitutional powers. The Framers did not account for, and were openly hostile to, political parties. They believed that a President should stand above parties, which were seen as temporary factions assembling against the national interest.106 From the very beginning, Washington saw his office as advancing a set of policies, a program, which required the cooperation of the executive and legislative branches. Washington's administration devised the national banking system and the assumption of debts. It developed the policy of neutrality in the wars between Great Britain and France and set the nation on a hostile military course with the Indians. Washington understood the Presidency as giving him, not Congress, the initiative in defining foreign and domestic security policy.

  Institutional independence included recognition of the other branches' prerogatives. Only the legislature could create the bank, approve the Jay Treaty, or fund the troops on the frontier. While Washington was dismayed at the open partisanship of the Jeffersonian opposition, his administration began the first experiments in the coordination of executive and legislative branches through a common political party. Washington would even recognize perhaps the ultimate limitation on the Presidency. By stepping down after two terms, Washington introduced a republican rotation in office, a precedent unbroken until Franklin D. Roosevelt, which proved to be a political bulwark against executive tyranny. By combining constitutional independence with constitutional self-control, Washington set the example of a republican executive that his successors would follow.

  CHAPTER 4

  Thomas Jefferson

  WHILE NOT ONE of the top three of our nation's "greatest" Presidents, Thomas Jefferson consistently ranks as one of the "great" after Washington, Lincoln, and FDR. No doubt, he owes some of his high standing to his achievements before and after his time in office. He drafted the Declaration of Independence, founded the University of Virginia, and served as governor of his state and envoy to France. He was an architect, scientist, farmer, and inventor. Yet, Jefferson was a bundle of contradictions, so much so that historian Richard Ellis titled a recent biography American Sphinx. Jefferson was perhaps our nation's most eloquent spokesman for human freedom, but at the same time kept slaves and fathered illegitimate children with one. As Leonard Levy has shown, he was a master of rhetoric in defense of civil liberties, but did not hesitate to use government power to pursue critics and opponents. He criticized the growth of federal power yet exercised it to limits rarely seen in American history to enforce an embargo. He demanded responsible, effective government but suffered from migraine headaches that prevented him from fulfilling his duties at times of high stress, both as governor and President.1

  Nowhere do these contradictions seem to arise more sharply than with regard to Jefferson's views on executive power. Jefferson is widely thought to have opposed a strong Presidency. While drafting the Virginia constitution, he attempted to str
ip the governorship of many of the executive's powers and re-title the position as that of "Administrator."2 While envoy to France, he faulted the proposed Constitution because it contained no presidential term limits. He worried that once elected, a President would be returned to office for life. "I am not a friend to a very energetic government. It is always oppressive," he explained to Madison.3 He praised the Constitution because it created "one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative Body."4 While Secretary of State, Jefferson adopted a theory of strict construction to oppose Hamilton's broad interpretation of the Constitution's implied powers -- first with the creation of the national bank, then with the proclamation of neutrality -- and he organized America's first political party against the "monocrats" who were allegedly reinstalling features of the British monarchy in the United States. While President, Jefferson sought to reduce the size of bureaucracy and the military, lower taxes, enhance majority rule, and center the nation in his vision of an agrarian republic. He characterized his election "as real a revolution in the principles of our government as that of 1776 was in form," by saving the country from a Federalist Party that favored the executive.5