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

by John Yoo

  Jefferson's most remarkable exchange came with Senator Wilson Cary Nicholas. Nicholas warned that any public statement by Jefferson against the constitutionality of the Purchase might sink the treaty in the Senate. Jefferson agreed that "whatever Congress shall think it necessary to do, should be done with as little debate as possible, & particularly so far as respects the constitutional difficulty." Still, he could not resist the opportunity to restate his belief that the Constitution did not envision the addition of new states from territory not already part of the nation in 1789. The opposite construction, advanced by his cabinet and by Nicholas, too, would allow the United States to add "England, Ireland, Holland, [etc.] into it." Broad rules of interpretation, Jefferson warned, would "make our powers boundless" and would render the Constitution "a blank paper by construction." Jefferson claimed that when faced with a choice between two readings of the Constitution, "the one safe, the other dangerous, the one precise, the other indefinite," he would choose the "safe & precise" and instead "ask an enlargement of power from the nation where it is found necessary."39

  Jefferson had claimed authority for the President to act outside the Constitution itself when circumstances demanded it. If he had interpreted the powers of the executive narrowly, he would have put the Louisiana Purchase in danger. But it was Jefferson's strict constructionist views that created this dilemma in the first place. His reading of the Constitution seems mistaken and has never been the view of any of the three branches of government since. Article IV, Section 3 gives Congress the authority to admit new states and then adds the qualifier that when new states are formed from existing states, those states must consent. The broader power, without that qualification, must apply to something (otherwise, why not just make all admissions subject to state consent), and that something must be the creation of states out of new territory. As Lawson and Seidman argue, the Admissions Clause, as it is known, merely declares that "new states may be admitted by the Congress into this Union." Second, Article II's vesting of the executive power in the President contains a power to address national emergencies and crises. Jefferson could have read the executive power to include the authority to acquire the Louisiana Territory because of the threat to the national security if it had remained in the hands of other nations.

  Instead, Jefferson chose to keep both Louisiana and his constitutional faith by turning to the prerogative. Jefferson's political dexterity made him flexible enough to take advantage of this great national opportunity, even to the point of adopting a vision of presidential powers potentially broader, in some ways, than that of Hamilton. Washington had established the legitimacy of the national government by keeping his energetic executive within its constitutional bounds. Hamilton had given theoretical punch to Washington's actions by arguing that the Constitution had to include the power to address every national emergency, and that this power would naturally reside in the executive. Jefferson, however, approached the Presidency more in keeping with Locke's theory of the prerogative. In his letter to Breckinridge, Jefferson had bypassed constitutional objections to the Louisiana Purchase by comparing his position to that of a guardian who acts beyond his authority but in the best interests of his ward. He had to seize the opportunity "which so much advances the good of the country." In response to the firing on the Chesapeake, Jefferson again acted beyond his constitutional powers. In both cases, Jefferson claimed that unforeseen circumstances, produced either by necessity or by opportunity, required him to exceed his legal powers to protect the greater good. Following Locke, Jefferson looked for ratification for his ultra vires decisions -- "an indemnity," as he wrote to Breckinridge -- from the people through their representatives in Congress.40

  Jefferson explained his embrace of the prerogative more completely after he left office. In an 1810 letter, he addressed the question of whether "circumstances do not sometimes, occur, which make it a duty in officers of high trust, to assume authorities beyond the law."41Jefferson thought the question was "easy" in principle, though could be "embarrassing in practice."

  A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.

  Jefferson followed with examples of military necessity: Washington destroying private property during the Revolutionary War to gain a tactical advantage; Jefferson himself as governor of Virginia seizing men and material to defend the state from the British. Even more interesting was Jefferson's use of the prerogative to defend several of his decisions as President. One was the possibility of purchasing the Floridas, even though Congress had made no appropriation -- the implicit reference to Louisiana was obvious. "Ought the Executive, in that case ... to have secured the good to his country, and to have trusted to their justice for their transgression of the law?" Jefferson's answer was yes. Another example was the purchase of military supplies after the attack on the Chesapeake. A third was General Wilkinson's arrest of the Burr conspirators without trial or right of habeas corpus. In all of these situations, Jefferson believed, "a law of necessity and self-preservation" was at stake, and that law "rendered the salus populi supreme over the written law."

  Acting beyond the written Constitution was not for the weak of heart or the low in status. Obeying the higher law of protecting the nation was a duty of the highest elected officers, Jefferson believed, not those "with petty duties." It could only be called upon during genuine moments of crisis, not when "consequences are trifling, and time allowed for a legal course." In normal times, "overleaping the law" was worse than "a strict adherence to its imperfect provisions." The elected leader is susceptible to a sharp backlash if he misjudges popular opinion. According to Jefferson, "It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake." Jefferson trusted that his fellow Americans would be forgiving; they would "put themselves in his situation" and judge his decisions based on what he knew at the time.

  Several difficulties emerge from Jefferson's adoption of Locke's theory of the prerogative. He did not explain when the nation's security is truly at stake -- when it triggers the prerogative and when it does not. Jefferson admitted that it would sometimes prove difficult to identify the line between acting within the law and invoking the prerogative. He compared the judgment needed to that of a good officer who knew when to act as he thought best because his orders did not anticipate an unforeseen case or extreme results. One clear case is protecting the nation from attack, as in the example of the Revolutionary War, the Burr conspiracy, and the Chesapeake affair. But Jefferson did not limit the executive's prerogative to self-defense; he also approved actively seizing opportunity to advance the nation's interests. Jefferson believed that a President could act decisively, even without congressional approval, to acquire foreign territory like Florida or Louisiana.

  Jefferson did not make clear how the good officer was to "throw himself on the justice of his country and the rectitude of his motives" for approval of his actions. In some situations, Jefferson believed that seeking congressional ratification after the fact was enough. But with the Louisiana Purchase, he never introduced the constitutional amendments he believed necessary to expand the Union. If anything, he appeared to believe that the President and Congress were committing an illegal act, and that both had to appeal to the people as a whole for approval. Jefferson ultimately looked to public opinion as the judge of extraordinary uses of presidential power.

  The last problem with Jefferson's prerogative is that its origins and justification remain unclear. One possibility is that an emergency power is inherent in the executive. This would be consistent with the line of thought begun by Mach
iavelli and, at the time, the view espoused by Hamilton. Another is that the power rests outside the Constitution entirely. This would be more akin to Locke's view. The former approach locates broad formal powers in the Presidency and might require the President to seek after-the-fact approval from Congress when he goes beyond the existing law, but for political rather than constitutional reasons. This view's virtue is that it does not bless presidential actions that are necessary but illegal. Viewing the prerogative as resting outside the Constitution relieves the executive of stretching the law so drastically to permit more freedom of action. Jefferson can be understood as favoring this approach. As Jeremy Bailey and Gary Schmitt have each argued, Jefferson's appeal to the prerogative allowed him to keep the formal powers of the Presidency limited.42 Though extra-constitutional, public opinion would limit Jefferson's prerogative.

  While it has the attraction of keeping a formal limit on presidential authority, Jefferson's prerogative requires us to accept that executive decisions can be both necessary and illegal. It forces Presidents to run the risk of violating the law in order to protect the nation from harm or seize outstanding opportunities. Only Presidents faced with the most imminent and serious emergencies or possessed of the surest feel for public opinion will survive. Throughout most of his Presidency, Jefferson could claim he had both. In Louisiana, he reached a bargain that secured the nation's prosperity and safety for generations. Until his second term, Jefferson seemed to act unerringly in line with popular wishes. He lost his touch at the end in his quest to maintain an embargo on the European powers, risking both the existence of the Union and its distance from foreign entanglements. Second term failure, however, was not the product of his constitutional powers, but rather ideological blinders combined with the political powers of the office, of which he continued to be a master.

  PARTY GOVERNMENT

  JEFFERSON'S POSITION THAT the President had an independent right to interpret and enforce the law was his greatest theoretical contribution to presidential power; his theory of the prerogative was his most practical contribution. But Jefferson's most striking addition to the political dimension of the office was his transformation of the President into a party leader. As head of the Republican Party (as it was then known), which held majorities in both the House and Senate throughout his Presidency, Jefferson could coordinate policy in both the executive and legislative branches. He never vetoed a bill on policy grounds, and never had to, because legislation inevitably reflected his wishes.

  It was not obvious that party government should lead to a stronger President. During the contest over the 1800 election, John Marshall predicted that Jefferson would "embody himself in the House of Representatives." His status as leader of the majority party in Congress would "increase his personal power" but lead to the "weakening [of] the office of the President."43 Jefferson enhanced presidential influence using his personal gifts and character, which when absent would lead to congressional dominance of government. Madison and Monroe owed their nominations to the party's congressional caucus, and John Quincy Adams would depend on its actual votes when the election of 1824 went to the House of Representatives. Jefferson, however, was able to maintain his control of the party without diminishing the power of the office in a way that would only be realized again under Woodrow Wilson.

  Jefferson initially approached partisan politics with a measure of ambivalence. The Republican Party, in the words of Richard Hofstadter, was the "party to end party."44 Jefferson thought of parties as a temporary measure to combat Hamilton's "monocrat" efforts to unbalance the Constitution and aggrandize the executive at the expense of Congress and the states. Once he won the 1800 election, the need for the Republican Party would disappear. Jefferson viewed it as unnecessary because the Constitution embodied different interests in each branch of government -- the popular interest in the House of Representatives, the elites in the Presidency. With the Federalist Party destroyed, harmony and balance would return to the political system. He never intended to establish the stable political system we have today, with two permanent parties regularly competing for control of government by capturing a majority of the vote.45

  Once in office, Jefferson found the uses of the political party irresistible. He accomplished effective party government through a combination of formal respect for Congress and informal political influence. Formally, Jefferson gave great deference to Congress's independence, and ended the practice of appearing in person to deliver the President's annual message to Congress. According to his great biographer, Dumas Malone, Jefferson rid the Presidency of any hints of monarchism, such as throwing grand parties, riding in a carriage, and declaring days of Thanksgiving.46 He often sent legislative recommendations in a deferential tone and portrayed himself simply as the instrument of Congress. In a letter to Dr. Benjamin Rush, Jefferson called himself "but a machine erected by the constitution for the performance of certain acts according to the laws of action laid down for me."47 Jefferson ended any Hamiltonian talk of using "corruption" to manage executive priorities through the legislature.

  Informally, Jefferson experimented with his position as party chief to expand the Presidency's political influence. His first tool was social. Jefferson regularly entertained Congressmen at small dinners, at which he appeared wearing homespun cloth and sometimes slippers, with the dinner prepared by his French chef and accompanied by fine wines. While he performed terribly before large groups, Jefferson was dazzling in these small settings, in which he led discussions on topics ranging from art and architecture, to music, to science. During these dinners, Jefferson and his companions discussed public policy, and the President invariably steered them to his desired result.48

  Jefferson's second tool was organizational. While Jefferson did not introduce the horse-trading, lobbying, and working of the press that are the stuff of the modern White House office of legislative affairs, he relied on Gallatin to manage his program in Congress. Congressmen did not resent Gallatin, who had been the Republican House floor leader, as they would have an executive official without legislative experience. Jefferson's involvement in legislation went as far as the selection of congressional leaders, who were responsible for carrying out the party agenda. Republicans created a congressional caucus that presented a unified front in the legislature which Jefferson also could more easily influence. They were aided by the steady deterioration of the Federalists, who proved unable to compete in political organization and campaigning and never again won the Presidency or majorities in Congress.

  Political coordination between the executive and the congressional majority resulted in significant grants of authority to Jefferson. In the area of appropriations, for example, the Republicans soon adopted the same practices for which they had criticized the Federalists. Under the Articles of Confederation, Congress had proven incapable of managing the nation's finances, and under the new Constitution, Congress looked to the executive branch to gather information and develop expertise. Under Washington, the Treasury Department developed estimates for annual expenditures, and Congress responded by voting appropriations for the operations of the entire government in a few lump sums. The very first appropriations act, for example, provided for all civilian employees and military expenses in a single sentence, and Congress continued the practice for the following three years.49 Executive branch officers exercised significant discretion in spending money, including the transfer of funds from one account to another. Sometimes, executive branch officials even entered into obligations before appropriations had been made, as Washington did to pay for the military costs of suppressing the Whiskey Rebellion. In 1793, Republicans launched a House investigation into Hamilton's alleged mixing of funds (proposals for his censure were defeated) and demanded specificity in appropriations.

  Close coordination between the executive and legislative branch can lead to unity and harmony, but it can also lead to disaster. Such cooperation may lead the majority party to ignore dissenting opinions or to place excessive faith i
n its own judgment, render ideological blinders bigger and darker, or make it harder to change a doomed policy. The President's control of the majority party in Congress can make him more stubborn in the face of setbacks rather than more flexible. Single-party control of both branches of government makes Congress more likely to delegate broader powers to the President. Delegation expands the President's legal powers, but it also increases his political risks as he assumes more responsibility.

  Jefferson's failure in his second term flowed from the successes of the first. The administration had kept the nation out of the European contest for supremacy without increasing defense spending or entering alliances, and it had solved the western issue by acquiring Louisiana. Jefferson could rest satisfied that he had assured America's future growth and security without incurring the heavy expenses and large bureaucracy needed for a more vigorous national defense. At the same time, Jefferson pursued the traditional national goals of territorial expansion and export markets. The Louisiana Purchase showed that he could have both, that he could follow the traditional interests of state, while rejecting the usual methods -- force and coercion -- that European nations had used to achieve them.50As Robert Tucker and David Hendrickson have observed, Jefferson attempted "to conquer without war."51

  Jefferson's policies had succeeded because of a short lull in the struggle between Britain and France. Once war resumed, Jeffersonian policies could not survive. Napoleon's Continental System subjected to seizure any ships transporting goods with Great Britain; Britain retaliated with an order allowing the capture of any ships carrying goods between France and other countries. This threatened the booming trade that the United States had carried on not just with those countries directly, but between the European rivals and their colonies. Thanks to British naval warfare against France and Spain and the wartime diversion of Britain's own maritime fleet, the American merchant marine's registered tonnage grew from 558,000 tons in 1802 to 981,000 by 1810, a level it would not reach again for a century. Jefferson was quite clear on America's interest: for the United States to "become carriers for all parties as far as we can raise vessels" so that the New World could "fatten on the follies of the old."52 Under Republican ideology, foreign markets would soak up the output of the virtuous yeoman farmers of the West.