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

by John Yoo

  When Britain refused to negotiate a change in its trade policies, the Madison administration kept its own counsel. Clay and his supporters stepped into the vacuum created by presidential caution and weakness. A more vigorous President would have prevented Congress from making such a disastrous mistake. War with Britain could not have been more ill-conceived. The United States could have pursued three policies: war with Britain, war with France, or neutrality. Only war with Britain could directly threaten the nation's security, as she had the one navy in the world capable of reaching the United States in any strength. Britain had forces along America's northern border and Indian allies that could pressure the Western frontier. Britain also happened to be the largest trading partner of the United States, meaning that any conflict would eliminate the millions in trade between the two nations, and since Britain was likely to impose a naval blockade, would also end American trade with the rest of the world. Hopes of adding Canada to the Union were ill-founded, though they had obsessed Americans since the time of the Revolution. There was no real evidence beyond wishful thinking that a hodgepodge of American troops and militia could successfully invade and conquer Canada, and the United States had no serious defensive works or troops along the borders or the East Coast, leaving the nation open to attack. The United States would declare war just as the balance of power was to change in Europe, with Napoleon suffering from his 1812 invasion of Russia, eventually freeing up British veterans for service in the Americas.

  With this balance of forces, the war went far better than the country could have realistically expected. Efforts to invade Canada were easily repulsed, with ill-prepared American armies surrendering, losing in battle to the British, or maneuvering fruitlessly in the Great Lakes region. State militias refused to leave their states, and the officer corps was, for the most part, inept. In the last year of the war, it was the British who would be invading the United States from Canada, but by the end neither side had made any progress. On the high seas, the United States won a few symbolic encounters, but for the most part the British kept a tight blockade on the East Coast. Success came only on the Great Lakes, where American sailors defeated their British counterparts (it was on Lake Erie where Oliver Hazard Perry declared, "We have met the enemy and they are ours"), and in the campaigns against the Indians by Harrison and Tennessee General Andrew Jackson.70

  After Napoleon's abdication, Britain sent its veterans to the United States. Britain planned a three-prong assault: invasion from Canada to seize Maine and parts of New York, diversionary harassment in the capital area, and a strong force through the Mississippi to detach Louisiana. If the plans had succeeded, the United States would have been shrunk short of its 1783 borders and would have been permanently hemmed in by British colonies and allies. The diversions alone humiliated the young nation by capturing Washington, D.C., and burning the government's buildings, including the White House and the Capitol. Madison and his wife barely escaped the arrival of British troops, who were only turned back by a stiff defense at Baltimore. (The bombardment was described by Francis Scott Key in the "Star Spangled Banner."). The Canadian offensive went nowhere due to the lack of interest of the British commander and some well-timed American naval victories on his flank on Lake Champlain. At the Battle of New Orleans in December 1814, Jackson became a national hero by utterly defeating the redcoats at a cost of only 21 American lives. It is a sign of America's good fortune that the nation survived the war with a return to the status quo.71

  A President who was independent of Congress could have resisted such a foolhardy war. Madison could have used his veto to block legislation increasing the military beyond the needs of defense, and he could have used his Commander-in-Chief power to conduct only a defensive strategy. Madison could have sought peace immediately, which was easily within his grasp. Britain had repealed its discriminatory trade policies almost at the very moment that Congress had declared war. From the very start, the public justification for war had evaporated. A peace agreement would have been little trouble. Instead, Madison went along with what he viewed to be public sentiment, as represented by Congress, to wage a war that was not in the national interest. In his public messages, he left the question of war up to Congress. Madison surely presented a case against Great Britain in late 1811 and early 1812, but it was Congress that sought a war that would bring Canada within the United States and end British harassment of American trade and expansion.72 Madison deferred to the judgment of Congress in the area where the President's power is at its maximum. He was even presented with the declaration of war and conceivably could have vetoed it, but he signed it instead. Madison compounded the mistake by exercising very little direct control of the war and allowing incompetent generals to guide national policy until, by the end, it seemed almost no one in Washington was in charge.

  Just as Jefferson demonstrated the possibilities of vigorous and independent presidential leadership, Madison showed the dangers of modesty and deference. Madison seemed to shrink within his diminutive shell when he became President. Where Jefferson had used the party to control Congress, Congress used the party to control Madison. He deferred to Congress on the wisdom of a disastrous war, and could not exercise effective control over his cabinet or generals once war began. It is not always Presidents who harbor dreams of military adventures and Congresses who hold tight rein over the dogs of war. Under Madison, it was Congress who hoped to conquer and the President who went along. Because of it, the nation suffered its worst battlefield defeats and came within an inch of losing its future.

  CHAPTER 5

  Andrew Jackson

  WHILE ANDREW JACKSON laid the foundations for what we can begin to recognize as the modern Presidency, he would have been out of place in the modern world. He fought duels, owned slaves, killed Indians (as well as spies), and carried a lifelong hatred of Great Britain because, as a captured boy soldier during the Revolutionary War, he had been struck in the face with a sword for refusing to clean an officer's boots. During the War of 1812, he won a resounding victory over the British at the Battle of New Orleans, but during the peace, Jackson invaded and occupied Spanish Florida without clear orders.1

  When he lost the election of 1824 despite winning the most votes, Jackson did not graciously withdraw but spent the next four years attacking the "corrupt bargain" that had thrown the Presidency to John Quincy Adams. Jackson received a plurality of the popular vote, 153,000 out of 361,000, and of the electoral vote, 99 of the 131 needed to win. The Constitution sent the election into the House of Representatives, where Henry Clay, who had come in fourth, was Speaker of the House. Clay influenced the House to choose John Quincy Adams, who had received 84 electoral votes. Adams picked Clay to be Secretary of State, the position then seen as the stepping-stone to the Presidency. Jackson devoted the next four years to successfully undermining the legitimacy of the Adams administration. He became the symbol of a rising democracy, which he promoted as President.

  Upon winning the election of 1828, Jackson embarked on a transformation of the political system and the Presidency. He sought to advance the cause of democracy and made an expanded executive power his tool in that great project. To Jackson, democracy meant that the will of the majority should prevail, regardless of existing governmental and social arrangements. Even Jefferson had not gone that far. The Framers designed the Senate, the Electoral College, and an independent judiciary to check and balance majority rule, but Jackson followed a different star. "[T]he first principle of our system," Jackson declared in his State of the Union Address, is "that the majority is to govern."2 He called for a constitutional amendment to eliminate the Electoral College because "[t]o the people belongs the right of electing their Chief Magistrate"3 The more elected representatives there were, he observed, the more likely the popular will would not be frustrated.4 Jackson remains one of the greatest Presidents because he reconstructed the office into the direct representative of the American people.5

  The two causes -- democratization and expan
ding the Presidency -- were linked, though they need not have been. Democracy was on the rise before Jackson reached office, and by the election of 1824, all but three states had granted the franchise to all white adult males. Many states directly elected their governors, judges, and other officials, and though large segments of the population, such as women and minorities, could not vote, the United States had achieved a high level of democracy for its time.

  The Presidency, by contrast, had declined sharply. Beginning with James Madison in 1808, the Republican members of Congress selected their party's presidential nominee. When the Federalists disappeared after the War of 1812, "King Caucus" effectively selected the nation's President -- the very result the Framers wanted to avoid. Cabinet agencies and their secretaries felt the pull of competing allegiances with the emergence of congressional committees. Cabinet members began to pursue their own agendas, in cooperation with Congress, and Presidents began to see themselves more as prime ministers holding together a coalition.

  Presidential weakness was evident in the two great challenges of this "Era of Good Feelings." The central issue of the early Republic, the struggle for dominance between Britain and France, ended with the War of 1812. The other great antebellum issue was slavery. Jackson's victory at New Orleans guaranteed that American expansion would continue without interference from Great Britain, but the added territory called upon the national government to decide whether to permit slavery in the new territories. North and South proceeded to play a delicate balancing game over the admission of new states. Monroe played no significant role in setting a national agenda on the slavery question, and instead, congressional leaders took the initiative. Their 1820 Missouri Compromise prohibited slavery in all of the Louisiana Purchase north of the southern border of Missouri, except Missouri itself. The Great Triumvirate of Clay, Calhoun, and Daniel Webster exercised commanding leadership over the Jeffersonians. Presidents like Madison, Monroe, and Adams, who owed their nominations to the congressional caucus, had little leverage to influence the slavery debate.

  As presidential power came into doubt, so too did the authority of the national government. Signs of regional separatism had first begun to emerge during Jefferson's embargo and Madison's War. Although the disappearance of the Federalists led to a single dominant political party, regional divisions emerged over tariff levels and "internal improvements," such as roads and canals. The South, for example, exported raw materials and agricultural products and imported finished goods; high tariffs appeared to benefit Northern manufacturers while raising the South's costs. Internal improvements, which included the Erie Canal and interstate roads, created a different set of regional alliances between Westerners who favored expansion and Eastern states that benefited from increasing links to the West. Slavery exacerbated these centrifugal forces, as did democratization, which broke down social and political hierarchies.

  Jackson swam against the tide of decentralization and a weak executive. He reinvigorated the Presidency and is generally considered by historians to have been one of the nation's most powerful Chief Executives. He advanced a new vision of the President as the direct representative of the people, and put theory to practice -- interpreting the Constitution and enforcing the law independently, wielding the veto power for policy as well as constitutional reasons, and reestablishing control over the executive branch. In the first of two great political conflicts of his time, the Bank War, Jackson vetoed a law that the Supreme Court and Congress both thought constitutional, removed federal deposits from the Bank of the United States, and fired cabinet secretaries who would not carry out his orders. In the second, the Nullification Crisis, Jackson interpreted the Constitution and the meaning of the Union on behalf of the people, and made clear his authority to carry out federal law against resisting states. Although he was a staunch defender of limited government, Jackson confronted head-on the forces of disunion. His achievement would be to restore and expand the Presidency within a permanent Union. His leadership would spark resistance so strong that it would coalesce into a new political party, the Whigs, devoted to opposing concentrated executive power.

  THE INVASION OF FLORIDA

  An ENDURING IMAGE of Andrew Jackson is the cartoon of "King Andrew the First," as his critics called him, sitting on a throne after his veto of the Bank,6 but his war against the Bank produced more than caricatures. Both his critics and supporters understood that Jackson was exercising the powers of the Presidency in unprecedented ways, triggering congressional investigations, legislative proposals to rein in the executive -- even censure by the Senate. Jackson, however, persevered and eventually prevailed. He similarly turned presidential powers to new directions when he overcame South Carolina's threats to nullify federal tariff laws. Throughout, Jackson's belief that he represented the will of the majority infused his conduct of the Presidency. He re-energized the office by wedding its constitutional powers to a theory of the executive as the focal point for national majority rule, a role that was at best implicit in the constitutional text.

  Jackson's attitude was clear even before he became President. As a general, Jackson was not above interpreting his orders loosely, nor did he think he had to wait on congressional approval before taking offensive military action. In the wake of the War of 1812, Jackson concluded that the Spanish had to be expelled from the Southwest to make way for American expansion.7 The first step in his strategy was to eliminate any possibility of an Indian buffer zone between the United States and Spain. After initial setbacks, Jackson defeated several Creek Indian tribes that had allied with the British during the War -- in these battles, Jackson won the nickname "Old Hickory." During the peace, Jackson refused to follow the provisions of the Treaty of Ghent that restored the tribes to the status quo and removed them from the area of the Louisiana Purchase to lands on the Western frontier. In about 16 months, Jackson acquired about one-third of Tennessee, three-fourths of Florida and Alabama, one-fifth of Georgia and Mississippi, and about one-tenth of Kentucky and North Carolina. Jackson made no secret of his desire to drive the Spanish out of Florida, Texas, and even Mexico.8

  The Treaty of Ghent and several U.S.-British treaties after the war formalized an implicit understanding between the mother country and her former colonies. Great Britain would no longer oppose American expansion into the South and West. In return, the United States demilitarized the northern frontier and relinquished any ambitions for Canada. This left Spain in an untenable position in Florida, where it had few military and administrative resources. Americans had wanted Florida since the days of Jefferson, if not before, but Congress never authorized any military action against the Spanish. Under prevailing practice at the time, a full offensive mission of conquest would have called for a declaration of war.

  Seminole attacks on American territory in 1817 supplied Jackson with a pretext. The Seminoles had operated out of Spanish Florida and had refused to vacate lands under previous treaties, launching retaliatory attacks when American troops sought to relocate them. American settlers conveniently engaged in a separate raid into Florida, "liberated" Amelia Island, and then pled for help when Spanish forces moved to evict them. The Monroe administration authorized local commanders to pursue the Seminole raiders across the Florida line, but to stop short and await further orders should the raiders seek shelter in a Spanish outpost. Monroe placed Jackson in command of a broader expedition and ordered him to "[a]dopt the necessary measure to terminate a conflict" that the President claimed he wanted to avoid.9 Jackson concluded that the best way to end tensions was to seize all of Spain's territory in Florida. He sent a letter to Monroe seeking authorization, which Monroe subsequently claimed he did not read until a year later.10 Monroe independently sent Jackson a letter giving him command of the expedition against the Seminoles, the intervention at Amelia Island, and unspecified "other services."11 Monroe urged Jackson that "[t]his is not a time for you to think of repose," declared that "[g]reat interests are at issue," and asked that "every species of danger" be "sett
led on the most solid foundation."12 Jackson took this as presidential authorization to invade Florida. He did not question that the President had the authority to send him; in fact, he had promised Monroe that he would conquer the whole territory within 60 days. In the First Seminole War of 1818, Jackson led a force of 3,000 regulars and volunteers that destroyed the main Indian settlement near present-day Tallahassee, and captured two British citizens -- Alexander Arbuthnot and Robert Ambrister -- who had been advising the Seminole. He convened a military commission to try the two as outlaws under his authority as the commander in the field, and after a guilty verdict, he sentenced both to death. Jackson then marched his troops to Pensacola, the seat of Spanish rule in Florida, and quickly seized it on the ground that hostile Indians were massed inside. None were found. A small Spanish force surrendered after a short battle nearby, with no casualties on either side. In June, Jackson issued a proclamation declaring Florida ceded to the United States and established a provisional government.13

  Jackson's battlefield successes sparked a political firestorm. After the fighting ended, Secretary of War John Calhoun and Treasury Secretary William Crawford argued that Jackson had violated the Constitution and demanded his punishment. Secretary of State John Quincy Adams defended Jackson on the ground that the seizure of Pensacola was justified by military necessity.14 Instead, Monroe sent Jackson a letter maintaining that the general had exceeded his orders, but that circumstances justified pursuit of the Indians into Spanish territory -- even though under the Constitution the attack on Pensacola required a declaration of war from Congress.15 Monroe was not about to admit that the conquest of Florida was illegal and return it to Spain.