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

by John Yoo

  Johnson joined forces with his old party, the Democrats, in the 1866 midterm elections, but the Republicans prevailed. In 1867, Congress overrode the vetoes of the Freedman and Civil Rights Bills and passed a Reconstruction Act that required the Confederate states to ratify the Fourteenth Amendment and repeal all racially discriminatory laws. Congress further required the Southern states to extend to the freedmen the equal right to vote. A supplementary Reconstruction Act swept away Johnson's Reconstruction and ordered new elections and constitutional conventions.104

  Just as Congress blocked Johnson's policies, Johnson used his constitutional powers to frustrate Congress. In 1865, he appointed former rebels as provisional governors in the South, freely granted pardons at their recommendation, and gave federal offices to other former rebels. His Attorney General ordered federal prosecutors to drop cases that transferred the lands of rebel officers to the Freedman Bureau for the use of freed slaves. On April 2, 1866, he issued a proclamation that the insurrection had ended, which implied an end to occupation government. As the split with Congress worsened, Johnson used his power of removal to fire federal officials, including 1,283 postmasters, to bind the executive branch to his policies.

  Even implementation of the Reconstruction Acts was up to the military, which served under the command of the President. Johnson declared the Reconstruction Acts to be "without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive to those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure."105 By summer 1867, he had adopted the legal position that the military governors could keep the peace and punish criminal acts, but not remove Southern officeholders nor enforce civilian laws such as the Civil Rights Act. Johnson had effectively declared that the military would not execute the Reconstruction Acts. He had set the nation toward his minimal Reconstruction policy solely by exercising his powers as Commander-in-Chief.

  Angry Republicans believed Johnson was conducting a coup. They struck back in the February 1867 Tenure of Office Act. It prohibited the President from removing any appointed official while the Senate was in session until the Senate had confirmed his successor. It required the President to explain the reasons for any removal and required Senate approval before it became official. That summer, Congress enacted a third Reconstruction Act that restored the authority of the military governors to enforce civilian laws in the South. Johnson waited until the Senate went on recess and then replaced Stanton as Secretary of War with General Grant. He fired the military governors who had used their authority under the Reconstruction Acts to remove Southern officeholders. Johnson had completely blocked congressional Reconstruction. "Yet," observes Michael Les Benedict, "Johnson had broken no law; he had limited himself strictly to the exercise of his constitutional powers."106

  A Congress determined to have its way had one tool left: impeachment. An initial drive to impeach Johnson in 1867 failed, even after his State of the Union message declared that he would not enforce the Reconstruction Acts. Congress tried again after Johnson violated the Tenure of Office Act. On February 24, 1868, the House overwhelmingly impeached Johnson for violating the Act, blocking implementation of the Reconstruction Acts, and publicly vilifying Congress. House managers argued that the President could not refuse to enforce an Act because he believed it to be unconstitutional. Such power would give him, they claimed, an absolute veto over all legislation. These legal grounds joined the unstated political motives for impeachment. The Senate refused to convict by only one vote, however, with seven Republican Senators voting in favor of Johnson (dramatically retold in John F. Kennedy's Profiles in Courage).107

  Both the President and Congress had exercised their legitimate constitutional powers. Johnson had the duty not to enforce laws he believed to be unconstitutional. He had only followed the example of past Chief Executives by using his powers of appointment and removal to promote his policies. Johnson was even correct on the merits. The Tenure of Office Act violated the Constitution's grant of the removal power to the President as part of its vesting of the executive power, the issue resolved in 1789 by the First Congress.108 Still, Congress had every right to pursue its own vision of the Constitution, and if it honestly disagreed with the President, it could remove him through impeachment. While the Senate failed to convict Johnson, the impeachment process rendered his administration a shambles and convinced him to end his confrontational ways. The 1868 elections soon replaced him with Grant, the hero of the Civil War.

  Johnson's example modifies the lessons of the Lincoln Presidency in several important respects. Not all Presidents who press their constitutional powers to the limits will prevail. Johnson today is ranked as one of the worst Presidents because of his racist views and his efforts to block a Reconstruction that sought to guarantee equality for the black freedmen. Eric Foner views Reconstruction as a shining moment when the South could have been remade into a racially harmonious and egalitarian society.109 Johnson set that vision back at least four years, and perhaps a century, but he could not have been so successful an obstacle without the same vigorous understanding of presidential power shared by his predecessor. When it came to the questions about the power of removal and non-enforcement of unconstitutional laws, Johnson even had the better of the constitutional arguments.

  Johnson failed not because he misunderstood the scope of his constitutional powers, but because he misjudged when to use them. It could be argued that Johnson simply could not overcome congressional opposition, but what made Johnson's defeat profound was his effort to use his constitutional powers in a way that triggered his impeachment. Earlier Presidents had invoked their constitutional powers during times of great national challenge and opportunity: establishing a new government, charting a course between the Napoleonic wars, winning Louisiana and the Southwest. With Reconstruction, the great emergency that had forced Lincoln to draw on a robust vision of the Commander-in-Chief role was waning, not beginning. With complex questions about the nature of restoring the Union at hand, and with little need for swift and decisive action, the demand for the unique qualities of the executive was less evident. If Johnson had limited his opposition to political measures, without invoking his constitutional authority, Congress would have prevailed, but impeachment would have been unnecessary.

  Reconstruction reaffirms another lesson about executive power: even at its greatest height, the other branches always have ample authority of their own to counter it. Johnson could block congressional policy, but he could get nowhere on his own. Congress could not choose the generals in charge of the occupation, but it could grant them broader powers over the Southern governments. Even if Johnson would not enforce the Reconstruction Acts, Congress could refuse to readmit the Southern states to the Union. If Congress disagreed so sharply over the executive branch's definition and use of its constitutional powers, it could resort to the ultimate remedy of impeachment.

  Johnson failed to understand that Congress was just as wedded to its principles as he was to his. Instead of triggering a constitutional confrontation with no good outcome, he should have cooperated with Congress. The Reconstruction crisis was not an external one confronting the government, but one of his own making. The former demands that Presidents exercise their powers decisively for the benefit of the nation; the latter does not.

  CHAPTER 7

  Franklin D. Roosevelt

  WITH WASHINGTON and Lincoln, Franklin D. Roosevelt is considered by most scholars to be one of our nation's greatest Presidents. Roosevelt confronted challenges simultaneously that his predecessors had faced individually. Washington guided the nation's founding when doubts arose as to whether Americans could establish an effective government. Roosevelt radically reengineered the government into the modern administrative state when Americans doubted whether their government could provide them with economic security. Lincoln saved the country from the greatest threat
to its national security, leading it through a war that cost more American lives than any other. Roosevelt led a reluctant nation against perhaps its most dangerous foreign foe, an alliance of fascist powers that threatened to place Europe and Asia under totalitarian dictatorships. To bring the nation through both crises, FDR drew deeply upon the reservoir of executive power unlike any President before or since -- as demonstrated by his unique status as the only Chief Executive to break the two-term tradition.1

  Roosevelt came to the office in the midst of the gravest challenges to the nation since the Civil War. The most obvious and immediate crisis was the Great Depression. FDR placed the President in the role of legislative leader and produced a dramatic restructuring of the national government, even though the Depression, as a breakdown of the domestic (and global) economy, fell within the constitutional authority of Congress. Large Democratic majorities in Congress expanded federal regulation of the economy beyond anything before seen in peacetime. Regulation of prices and supply, product quality, wages and working conditions, the securities markets, and pensions became commonplace where they had once been rare. Social Security was not just one of the New Deal's most important planks, but the expression of the whole platform. The federal government would declare its responsibility to coordinate and regulate economic activity to provide stability. It had always exercised broad economic powers during wartime, but FDR made management of the economy by a bureaucracy of experts a permanent feature of American life. While the Republican Presidents who had dominated elections since the Civil War had left economic decisions to the market, FDR placed the federal government in the role of providing economic as well as national security.

  Roosevelt's revolution radically shifted the balance of power among the three branches of government as well as between the nation and the states. Under the New Deal, Congress delegated to the executive branch the discretion to make the many decisions necessary to regulate the economy. Congress did not have the time, organization, or expertise to make the minute decisions required. The New Deal did not just produce a federal government of broad power -- it gave birth to a President whose influence over domestic affairs would begin to match his role in foreign affairs. When the Supreme Court stood in the way of the new administrative state, Roosevelt launched a campaign to increase the membership of the Court to change the meaning of the Constitution. When political parties challenged the New Deal, Roosevelt concentrated power in the executive branch, which undermined their ability to channel benefits to their members. The New Deal produced a Presidency that was more institutionally independent of Congress and more politically free of the parties than ever before.2

  The Great Depression spawned foreign threats, too. Economic instability in Europe set the conditions for the rise of fascism first in Italy, then in Germany and Japan. Roosevelt realized early that American interests would be best served by supporting the democracies against the Axis powers, but he was confronted by a nation wary of another foreign war and a Congress determined to impose strict neutrality. FDR used every last inch of presidential power to bring the nation into the war on the side of the Allies, including secretly coordinating military activities with Britain, hoping to force an incident with Germany in the North Atlantic, and pressuring Japan until it lashed out in the Pacific. FDR's steady leadership in the face of stiff congressional resistance stands as one the greatest examples of presidential leadership in the last century, one that redounded to the benefit of the United States and the free world.

  THE NEW DEAL AND THE COURTS

  FDR ENTERED OFFICE in the midst of the worst economic contraction in American history. Between the summer of 1929 and the spring of 1933, nominal gross national product dropped by 50 percent. Prices for all goods fell by about a third; income from agriculture collapsed from $6 billion to $2 billion; industrial production declined by 37 percent; and business investment plummeted from $24 billion to $3 billion. About one-quarter of the workforce, 13 million Americans, remained consistently unemployed, and the unemployment rate would remain above 15 percent for the rest of the decade. More than 5,000 banks failed, with a loss of $7 billion in deposits. From the time of the crash in October 1929 to its low in July 1932, the Dow Jones Industrial Average fell more than 75 percent.3 It was not a problem caused by famine or drought, dwindling natural resources, or crippled production; crops spoiled and livestock were destroyed because market prices were too low.

  Americans were losing faith in their political institutions to solve the crisis. Though the causes of the Depression were complex, some, Roosevelt included, blamed "economic royalists," financiers and speculators, and the rich. Economists and historians have argued ever since over the causes of the Depression. Little evidence seems to support the claim that the stock market crash triggered the Depression -- stock markets have sharply declined since then, most recently in 1987, with no underlying change in economic growth.

  In their classic Monetary History of the United States, Milton Friedman and Anna Schwartz argued that a normal recession deepened into the Great Depression because the Federal Reserve mistakenly responded to the banking panic by restricting the money supply. A deflation in prices followed, which led to a steep drop in economic activity. Ben Bernanke, the current Chairman of the Federal Reserve, elaborated on this theme by arguing that the Fed's deflationary banking policies tightened the credit available to businesses and households, further suppressing economic activity.4 Others argue that the Great Depression must be understood within the context of the international economy, which witnessed bank failures and recession in Germany and France, defaults on World War I loan and reparation payments, abandonment of the gold standard, and the dumping of agricultural products on world markets.

  Our understanding of the causes of the Great Depression has improved, thanks to the scholarship of the last 40 years, but even to this day there is no clear consensus. To the Americans who lived through it, the collapse of the economy was bewildering, confusing, and without historical precedent. The Hoover administration's policies did not help, and might have made matters even worse. As historians have realized, Hoover did not adopt the aloof, hands-off attitude claimed by his political opponents. During his administration, Congress doubled public works spending, and the federal budget deficit rose to $2.7 billion, at that time the largest in American peacetime history. He pressed business executives to maintain employment and wages, and experimented with policies, such as the Reconstruction Finance Corporation's emergency loans to businesses, which would set important examples for the New Dealers.5

  But Hoover's initiatives were mere stopgaps that were swamped by other policy mistakes. Though he had initially asked for tariff reductions, Hoover signed the notorious Smoot-Hawley Act, which raised rates and killed international trade flows. Following the conventional economic wisdom of the day, Hoover sought to balance the budget with tax increases at a time when the economy needed fiscal stimulus. As Milton Friedman and Allan Meltzer have separately argued, the Federal Reserve pursued a deflationary strategy, cutting off the economy's oxygen, when increases in the money supply were called for.6

  Some of Hoover's failure rests on his vision of the Presidency. He refused the role of the President as legislative leader, resisted the expansion of the federal agencies, and opposed national welfare legislation -- all on constitutional grounds.7 FDR's vision of the office could not have created a sharper contrast. FDR led the nation through a frenzy of experimentation in policies and government structure without parallel in American history. There appeared to be no overall philosophy behind the New Deal, which comes as little surprise, given the confusion that prevailed at the time over the causes of the Depression.

  Without any true understanding of the reasons for the collapse, the New Dealers tried anything and everything. Thinking that overproduction was the culprit, some recommended the cartelization of industries to reduce supply and increase prices. Others who blamed underconsumption advocated public jobs programs and welfare relief. Some believe
d that the budget deficit was the problem, and urged an increase in taxes and cuts in spending. Some thought international trade was a cause, and advocated both more flexibility in trade negotiations and the dumping of excess agricultural production overseas. Pragmatic and political (he had been a professional politician for most of his life), and unsure about the true causes of the Depression, Roosevelt flittered from idea to idea. Some had the effect of canceling each other out -- public works projects sponsored by the National Recovery Administration had to buy raw materials at prices inflated by controls imposed by the Department of Agriculture.

  Throughout all the experimentation and expansion of government, the one thing that did not change was the focus on the Presidency. FDR became the father of the modern Presidency by moving the chief executive to the center of the American political universe. FDR drafted the executive's wartime powers into peacetime service, but without calling for any formal change in the Constitution. In his First Inaugural Address, he declared that "our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form." What FDR wanted was access to the constitutional powers granted to the President during time of emergency. He promised to seek from Congress "broad executive power to wage a war against the emergency, as great as the power that would be given me if we were in fact invaded by a foreign foe."8 FDR's expansion of the powers of the Presidency, both political and constitutional, would grow from this basic theme -- the economy and society would henceforth be regulated in ways that were once considered suitable only for war.