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

by John Yoo

  In office, however, Jefferson claimed the right to interpret the laws at odds with the courts and Congress, bought Louisiana even while doubting the act's constitutionality, shepherded legislation through Congress, and tied the legitimacy of the Presidency to the will of the majority. His actions belie the straw man of a weak Jeffersonian Presidency, a fact not lost on his contemporaries. Hamilton said that during their time in the Washington administration, Jefferson "was generally for a large construction of the Executive authority" and was "not backward to act upon it in cases which coincided with his views."6 This was Hamilton's idea of a compliment. Henry Adams would conclude, in his magisterial history on Jefferson and Madison, that the former exercised presidential power "more completely than had ever before been known in American history."7 Many political scientists ever since have considered Jefferson an example of principle giving way before political expediency.8

  A growing minority of historians and political scientists, including Jeremy Bailey, Ralph Ketcham, David Mayer, and Gary Schmitt, argues that this contradiction proceeds from a false starting point. It is assumed that Jefferson favored a weak executive because he sought a limited national government. The two ideas, however, need not conflict. Jefferson indeed wanted a government of limited constitutional powers balanced by states possessing significant sovereignty. In his draft of the 1798 Kentucky Resolutions, Jefferson argued that the Union represented only a compact between the states, rather than a national government representing one people. But within that framework, he favored a clean separation of powers that made each branch of the federal government supreme in its own sphere. For those matters properly classified as executive in nature, the President would govern, subject to the explicit exceptions and power sharing set out in the Constitution. He favored an executive branch headed by one individual, free of a council of advisors, to enhance executive accountability and responsibility, and sought to reconceptualize the office as the representative of a popular majority, elected to carry out an agenda. Jefferson embarked on a major innovation in presidential power, that of the President as party leader, which allowed him to promote a national program by coordinating the activities of the executive and legislative branches. Jefferson made the Presidency more powerful by making it more popular.9

  Jefferson profoundly affected the Presidency by introducing the concept of the prerogative. He advanced the theory, clearly following Locke, that the President could act outside the Constitution to protect the national interest in moments of great crisis or opportunity.10 In this, he differed from Hamilton and the Federalists, who believed that the formal powers of the President were flexible enough to address any national emergency. "The circumstances that endanger the safety of nations are infinite," Hamilton had written as Publius, "and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed."11 Jefferson, however, followed a strict constructionist approach to interpreting the Constitution, which resisted a broad reading of the President's formal powers. The prerogative allowed Jefferson to protect the country in unforeseen circumstances and keep his constitutional principles. As in the Louisiana Purchase, he could act beyond the Constitution when necessity demanded it. In exchange, the President had to throw himself upon the people for approval of his unconstitutional act. That check reinforced Jefferson's innovation of placing the legitimacy of the Presidency on national election and his representation of the will of the majority.12

  Jefferson's conception of the executive power was the product of the lessons of experience. As governor of Virginia during the Revolution, when British forces had American troops on the run, Jefferson came to appreciate matching the executive's powers to its responsibilities. In discussing proposals for Virginia's new constitution, Jefferson argued that the executive power did not reach as far as the British Crown's prerogatives, but at least included the power to enforce the laws and other powers not judicial or legislative in nature. During the Constitutional Convention, Jefferson advised friends that the Constitution should create an independent executive branch. "I think it very material to separate in the hands of Congress the Executive and Legislative powers," he wrote. "The want of it has been the source of more evil than we have ever experienced from any other cause."13 As Secretary of State, Jefferson believed that control over foreign relations was one of those executive powers, from which the Senate's role in treaty-making was only a narrow exception. While he urged Madison to write against Hamilton as Helvidius, Jefferson agreed with the rest of Washington's cabinet that the President should declare neutrality.

  Jefferson entered office after a bitter campaign. Jefferson considered the Federalists to be monarchists who wanted to duplicate the British political and economic system. In the election of 1800, his Republican Party swept Federalist majorities out of Congress, and John Adams out of the White House. But Jefferson tied in the Electoral College with his party's vice presidential candidate, Aaron Burr, even though his party intended that Jefferson become President. Under the rules of the Electoral College, each elector voted for two candidates, with the Vice President simply the runner-up. The tie threw the election into the lame-duck Congress, where Federalists entertained various schemes to deny Jefferson the Presidency, including swinging it to Burr or refusing to choose anyone at all. Hamilton apparently feared Burr more than Jefferson, and the Federalists eventually gave the latter the victory. The Twelfth Amendment, ratified in 1804, finally required electors to vote separately for President and Vice President, but the election of 1800 would be resolved in the House, and Jefferson would owe his selection to his claim that the President should represent the will of a national democratic majority.

  The election represented the transfer of power from one political party to another without fighting or bloodshed, a rare thing in those days. In his inaugural address, Jefferson famously said, "We are all Republicans: we are all Federalists," to underscore the belief in representative government shared by all. Once in office, though, Jefferson reversed much of the Federalists' system. He unraveled the Hamiltonian financial structure by reducing government expenditures, cutting taxes, and retiring the national debt. This would pull the heart out of the network of financiers, merchants, and bureaucracy and reorient the country toward agriculture, western expansion, and a limited national government. However, his opposition to Federalist policies did not imply a rejection of the powers of the Presidency. Jefferson's characterization of the Hamiltonian system as monarchic was not an attack on executive power, but a criticism of the British system of executive corruption of the legislature. Jefferson would not hesitate to expand presidential power to achieve his own policies.

  PERSONNEL

  JEFFERSON'S FIRST STEPS in unwinding the Federalists' system occurred in the area of personnel and law enforcement. Jefferson introduced the idea that the members of his cabinet, and most of the subordinate executive officials subject to presidential appointment, should hail from his party. Washington had sought the best characters for his cabinet, hence the selection of Jefferson himself as Secretary of State. Jefferson chose only Republican leaders for his cabinet, with Madison as Secretary of State and Gallatin as Treasury Secretary. Jefferson did not immediately turn out all federal employees and replace them with party supporters, but he gradually replaced half by the end of his first term.14 He had little problem refusing to sign the commissions of officers who had received "midnight appointments" at the end of Adams's term (one of them leading to the foundational Supreme Court decision in Marbury v. Madison) or having his majorities in Congress repeal the Judiciary Act of 1801, which had created several new judgeships with Federalist occupants.

  Jefferson's effort to supplant Federalist officials with Republicans was more than the realization that personnel shape policy. It created an alternative path for presidential control of the executive branch. Washington had relied on the constitutional principle that he was personally responsible for taking care that the laws were faithfully executed. All official
s within the executive branch were there to assist him in carrying out that constitutional duty, and hence must be within his direct control. Jefferson supplemented this line of authority with the discipline of party politics. His appointees enforced administration policies because Jefferson headed the executive branch, and he headed their political party.

  Jefferson became the inventor, though not the most ruthless practitioner, of the spoils system. Some states, such as Connecticut, experienced "a general sweep" of Federalists out of national offices, while others saw a more gradual replacement. The desire to reward the party faithful after the election only partially explains Jefferson's actions. Jefferson believed the executive branch represented the people as much as the legislature, and so he wanted Republicans to have the same share of offices as they had of the popular vote. He understood that executive officers make policy choices beyond robotically executing the law. By the end of his administration, Jefferson had placed party members in two-thirds of all executive offices. Because of Jefferson, today we accept with little controversy that Presidents may choose their own party members for most important government positions. That Jefferson had to rely on partisan considerations in appointments suggests that relying on formal constitutional powers is simply not enough to control the executive branch.15

  LAW ENFORCEMENT

  JEFFERSON'S VIEWS ON law enforcement laid a strong claim to presidential equality with the other branches. Among the most hated pieces of Federalist legislation were the Alien and Sedition Acts of 1798, which made it a crime to defame or libel the government (with truth as a defense). Jefferson and Madison had secretly drafted the Kentucky and Virginia Resolutions, which suggested that the states could resist unconstitutional federal laws. Parts of the Acts expired at the end of the Adams administration, but Jefferson proceeded to pardon the ten individuals convicted under the law and ordered all prosecutions dropped. "A legislature had passed a sedition law. The federal courts had subjected certain individuals to its penalties of fine and imprisonment," Jefferson wrote in 1811. "On coming into office, I released these individuals by the power of pardon committed to executive discretion, which could never be more properly exercised than where citizens were suffering without the authority of law, or, which was equivalent, under a law unauthorized by the constitution, and therefore null."16 Even though the courts and Congress had found the Alien and Sedition Acts to be constitutional, Jefferson used his power as President to prevent the laws from being executed.

  Jefferson's decision was rooted in a strict view of the separation of powers and the right of each branch to interpret the Constitution for itself. He utterly rejected the notion that the courts have the last word on the meaning of the founding document. In a letter to Abigail Adams explaining his actions, Jefferson asserted that the executive and judiciary are "equally independent" in reviewing the constitutionality of the laws. "You seem to think it devolved on the judges to decide on the validity of the sedition law," he wrote. "But nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them."17 While the courts can view a law as constitutional and allow cases to move forward, the President can hold a different view and refuse to bring prosecutions against those who violate the law and pardon those already convicted. In an 1819 letter, Jefferson cited his reversal of the Sedition Act convictions to show that "each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal."18 While Jefferson did not challenge the courts' right to interpret the Constitution, he denied that the judiciary's conclusions bound him in the exercise of his own responsibilities.

  Jefferson's vision went further. He believed that Presidents ought to use the veto only when they were fairly certain that Congress had passed an unconstitutional law; he did not appear to think that he should veto laws because he disagreed with Congress's policy choices. On the other hand, Jefferson viewed his right to interpret the Constitution as extending beyond the President's role in the legislative process. As the Alien and Sedition Acts episode shows, he believed a President could decline to prosecute laws that in his opinion violated the Constitution. Similarly, Jefferson would not have expected the courts to feel bound by the views of the President and Congress on the constitutionality of the laws that they enact.

  JUDGES

  RELATIONS WITH THE judicial branch plagued the Jefferson administration. Federalists had a strong hold on the judiciary, and Jefferson thought of it as the last redoubt of his political opponents. "They have retired into the judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the treasury, and from that battery all the works of republicanism are to be beaten down and erased."19 He believed that it was wholly appropriate for the executive and legislative branches to alter the personnel of the judicial branch in order to change the outcome of its decisions. Jefferson felt no unease in having Congress repeal new judgeships, postpone Supreme Court terms to influence decisions, and in his most ambitious effort, remove judges in an effort to change the direction of the law.

  Republicans in the House began by eliminating the new judge-ships created by the Federalists in 1801. They followed by attempting to remove the judges who were left. In 1803, Jeffersonians began impeachment proceedings against John Pickering of New Hampshire, a Federalist district judge who happened to be crazy and a drunk. His mental sickness while chief justice of the state supreme court had led to efforts to oust him, and when a seat on the federal bench opened, state leaders promoted their way out of the problem by recommending Pickering.20 In 1804, the Senate voted along strict party lines that Pickering's erratic behavior on the bench satisfied the "high crimes and misdemeanors" standard and removed him from office. Jefferson had written to the House to pass along complaints about Pickering and ask Congress to perform its constitutional functions.

  Pickering was only target practice for bigger game. Justice Samuel Chase, a signer of the Declaration of Independence and former Anti-Federalist, had infuriated Republicans with his political outbursts on the bench, which included an attack on universal manhood suffrage and the Judiciary Act of 1803. Jefferson wrote a letter to a Maryland Congressman suggesting impeachment: "Ought this seditious and official attack on the principles of our Constitution, and on proceedings of a State, to go unpunished?"21 His majority in the House obliged, beginning impeachment proceedings on the day of Pickering's conviction. But the Senate refused to convict, establishing the precedent that impeachment would not be used to overturn judicial decisions.

  Jefferson's attack on the judiciary is conventionally understood as a defeat, and in terms of constitutional principle it was, but in terms of immediate politics, Jefferson came out ahead. After its decision in Marbury, the Supreme Court would not invalidate another federal law until Dred Scott a half-century later. The challenge to the judiciary effectively removed any threat that the federal courts would stand in the way of Jeffersonian legislation or presidential actions. Instead, the Marshall Court devoted itself to defending the prerogatives of Congress by vindicating the powers of the national government against those of the states. Jefferson's expanded view of the rights of the President and Congress against the judiciary, while constrained by the Senate in the end, helped him remove an obstacle to his policy agenda.

  Jefferson's confrontation with the courts gave birth to another invocation of executive power. While Washington had refused to disclose treaty documents to the House, Jefferson withheld information from the judiciary. The occasion was the Burr conspiracy, whose historical details still remain unclear. In 1805, Aaron Burr (after killing Alexander Hamilton in a duel while no longer Vice President) hatched a scheme to launch a military expedition in the American Southwest. Depending on the account one believes, Burr either sought to attack Spanish p
ossessions and bring them into the United States, or to detach territories from the United States and create for himself an independent empire, or some combination of the two. Burr had several private dinners with Jefferson at the White House while he secretly advanced his plans in Washington. In the end, one of the coconspirators, General James Wilkinson, turned against Burr as he was forming his troops, arrested him and other plotters, and sent them to Washington for trial.

  Burr was prosecuted for treason before Chief Justice John Marshall, sitting as a federal trial judge in Virginia. Burr's defense sought information in Jefferson's possession, including reports on the conspiracy sent to the President. Marshall issued a subpoena for the documents, but Jefferson refused to acknowledge the Court's right to force the executive to produce information for its proceedings. He explained to the federal district attorney that a court's subpoena could not override the Constitution, which "enjoins his constant agency" in leading the American people.22 Returning to his consistent view that the separation of powers required independence for each branch of government, Jefferson argued that the executive would become subordinate to the judiciary "if he were subject to the commands of the latter, and to imprisonment for disobedience." Proposing an argument that Bill Clinton would try, unpersuasively, before the Supreme Court, Jefferson argued that responding to the commands of the judiciary would "keep him constantly trudging from north to south and east to west." Jefferson would be "the sole judge" of what government documents to make public. As a compromise, he sent a limited set of documents to the U.S. attorney and ordered him only to release portions needed in the interests of justice. Marshall did not pursue the subpoena any further, and Burr and his coconspirators were acquitted. Jefferson's short-term political wishes were frustrated -- he was convinced that Burr was guilty of treason and had virtually convicted him in a special message to Congress -- but he established the first true precedent of executive privilege.