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

by John Yoo

  By contrast, the Eisenhower administration's "New Look" strategy and Nixon's detente were asymmetric. They abstained from direct competition with the Soviets in conventional weapons and did not try to meet every threat, but instead sought to apply American strengths against Soviet weaknesses. Asymmetry reduced the demand on economic resources, but at the price of yielding peripheral interests or leaving incremental threats unanswered.4 President Reagan's victory in the Cold War arose from a reinvigorated across-the-board challenge to the Soviets, won by dramatic increases in military spending and financed by a large Keynesian stimulus to the economy.

  For bringing the nation safely through the Cold War without a nuclear exchange or even a conventional armed conflict with the Soviet Union, several of the Presidents during the postwar period are considered to be among our best Chief Executives. Presidents Truman (seventh), Eisenhower (eighth), and Reagan (sixth) all rank today among the top Presidents, and their efforts to meet the Soviet threat demanded the broad and vigorous exercise of their constitutional power. Sometimes this involved going to war, as in Korea or Libya, without the authorization of Congress; at other times, it involved the threat of force, as in the Suez or Taiwan. Some of those conflicts turned out worse than others, though there is no reason to think that congressional approval or the lack thereof produces success on the battlefield. The conflict in Korea, which reversed the Communist invasion but ended in a stalemate, received no congressional authorization. The war in Vietnam, which ended in defeat, did. Other limited interventions, often taken by Presidents alone, produced success and failure equally.

  To begin with grand strategy, Truman continued FDR's practice of making commitments at summit meetings with foreign leaders with little or no congressional approval. The postwar world took its initial shape in the summer of 1945 at the Potsdam conference, where the Truman administration had concluded, unlike Roosevelt, that the Soviets were not interested in genuine cooperation. Truman agreed to a division of Germany, in which the U.S., USSR, Britain, and France would occupy individual sectors of the country and run them with a free hand. Each could take reparations from their own sectors, as the Soviets were already doing and the United States never did. Truman accepted a new border between Germany and Poland along the Oder-Neisse line, which moved the eastern border of Germany farther west away from the Soviet Union, and accepted a Soviet sphere of influence over Eastern Europe.5

  The invention of containment itself was almost wholly the product of the Truman administration. It was the President, not Congress, who developed and announced the 1947 "Truman Doctrine" that the United States would support Greece and Turkey, and any other governments in the future, with economic and military aid to prevent them from falling into the Soviet orbit. Truman ordered covert action to prevent Communist parties from winning elections in Italy and France, and he followed with policies designed to increase the ability of the West to resist Communism: creating NATO and the Marshall Plan, incorporating the Allied-occupied sectors of Germany into the West, restoring the Japanese government and economy, and building the hydrogen bomb. He did not seek a negotiated settlement with the Soviets.6 While several of these actions, such as the NATO treaty and the Marshall Plan, required congressional cooperation, several were taken unilaterally, and all were decisions made by Truman first.

  The executive branch alone defined the national means and ends in the struggle with the Soviets. The first comprehensive statement of containment was outlined in a memorandum known as NSC-68, developed in secret by an ad hoc group of Defense and State Department officials. In the wake of the fall of China to the Communists, and the Soviet explosion of an atomic bomb in 1949, NSC-68 established a policy of almost universal opposition to Communist threats worldwide. In doing so, the new strategy discarded earlier policies, drafted primarily by State Department official George Kennan, to focus on the more limited protection of valuable strongpoints. The United States henceforth would mount a perimeter defense that would seek to keep all territory then within the orbit of the United States and its allies out of Communist hands.

  Allowing the Soviets to advance in even a peripheral area would question American credibility to defend more vital regions. This bold commitment to maintain international peace and security, primarily through the buildup of conventional and nuclear forces, would be financed by using deficit spending to stimulate the economy. Approving NSC-68 in April 1950, Truman set the United States down the path of containment for the next four decades, with no input from Congress. Though the outlines of containment would be made known in congressional hearings, NSC-68 itself would not be declassified until 1975.7

  Implementation also came almost solely at Truman's hands. The first deadly move was the response to the invasion of South Korea on June 25, 1950, which seemed to fulfill NSC-68's prediction of worldwide Soviet aggression. After the UN Security Council issued a resolution authorizing member states to resist the attack (though Truman did not believe that the UN's approval was necessary), the President immediately ordered the U.S. military into action. The war would last three years, result in 33,000 American combat deaths and 103,000 wounded, and trigger an expansion of the armed forces to 5.7 million.8

  Truman made the initial decision to intervene on his own, and briefed congressional leaders after the fact. According to Secretary of State Dean Acheson, seeking legislative approval would have set a "precedent in derogation of presidential power to send our forces into battle."9 Led by Senator Tom Connally, chairman of the Senate Foreign Relations Committee, influential members of Congress told Truman that he had the constitutional authority to order the use of force as Commander-in-Chief.10 Only Senator Robert Taft protested that the President's actions violated Congress's authority to declare war. Even Arthur Schlesinger, Jr., who would later write The Imperial Presidency, publicly opined that American Presidents "have repeatedly committed American armed forces abroad without prior congressional consultation or approval."11

  Truman had earlier demonstrated little reluctance to make strategic and tactical decisions of the greatest import, such as the decision to drop the atomic bomb on Hiroshima and Nagasaki. He readily approved General MacArthur's plan to mount a daring amphibious landing at Inchon and to pursue the fleeing North Korean forces across the thirty-eighth parallel. At that point, American actions changed from pure defense of an ally into offensive military operations to unify the peninsula. It never crossed Truman's mind that the switch to offensive operations required congressional approval, even though it risked Chinese intervention.

  Truman also used his power of removal to dramatic effect to reinforce his authority over the conduct of the war. After Chinese troops attacked and drove American forces back below the thirty-eighth parallel, Truman decided that the United States would no longer pursue reunification. General MacArthur publicly criticized the decision and called for a widening of the war into China itself, one of the most direct challenges to civilian control of the military since the Civil War. On April 11, 1951, Truman fired him. MacArthur had the support of 69 percent of the public and of the Congress, in which Republican gains in the 1950 midterm elections had reduced the Democratic majority in the Senate from 12 to 2. Truman later denied that he had demonstrated steadfastness in the face of public criticism. "Courage didn't have anything to do with it," he said. "General MacArthur was insubordinate, and I fired him. That's all there was to it."12

  More critical to America's long-term security than the Korean conflict was the defense of Europe. Even before containment had become official U.S. policy, Truman had taken steps to resist Soviet moves in Germany. In June 1948, the Russians closed off all ground and water transportation into and out of Berlin. Stalin wanted to apply pressure to the United States and its allies, who had decided to unify their sectors of Germany into a sovereign state. While he rejected proposals to send an armed convoy through Russian-occupied East Germany, Truman approved an air bridge that would lift supplies to the beleaguered city. The flights of military transports thro
ugh East German airspace could have triggered a direct superpower conflict if the Russians had decided to force them down.

  Truman signaled his determination by deploying two squadrons of B-29 bombers to Germany, the planes that had dropped the atomic bombs on Japan (though unbeknownst to the Russians, they were not equipped with nuclear weapons). After a year and a half, the Soviets backed down and restored access to West Berlin. Truman never sought congressional approval for the airlift, nor for the fundamental political decision that gave rise to the dispute in the first place: to turn the Allied sectors of Germany into a new sovereign state firmly attached to the West. Truman gave further guarantees, again without congressional consent, to Western Europe by announcing that American occupation troops would remain in Germany -- effectively creating a trip wire that would trigger an American defense of any Russian invasion.13

  Once the Korean War began, Truman followed the logic of NSC-68 in Europe. Korea was just the manifestation, in American planners' eyes, of a general Communist effort to test the West after the loss of the U.S. monopoly on nuclear weapons. Truman and his advisors decided that the West would have to balance the Soviet advantage in conventional forces, and quickly. Western Europe would no longer be defended by a small force backed up with the implicit threat of nuclear retaliation for a Soviet invasion. In 1951, Truman deployed four combat divisions to Europe to signal American commitment and to reassure Europeans that the restoration of sovereignty to West Germany would be carefully watched. He also approved the rearming of Germany within the framework of NATO under the command of an American general. Military spending increased dramatically to support the new strategy. At the outset of the Korean War, military spending amounted to 4.4 percent of gross national product, but by the end of the Truman administration, the defense budget reached 13.2 percent of GNP, with only a small part devoted to the Korean fighting.14

  Republican members of Congress loudly attacked Truman's unilateral deployment of troops to Europe. In January 1951, a member of the House introduced a resolution that prohibited sending troops abroad without prior congressional authorization. Senator Taft declared that Truman's decision to defend Korea without a declaration of war had "simply usurped authority" in violation of the Constitution, and his European deployment similarly lacked authority. Truman defended his decision "under the President's constitutional powers as Commander in Chief of the Armed Forces" and declared that he did not legally need the approval of Congress. "Not only has the President the authority to use the Armed Forces in carrying out the broad foreign policy of the United States and implementing treaties," Acheson testified before Congress, "but it is equally clear that this authority may not be interfered with by the Congress in the exercise of powers which it has under the Constitution."15 Scholars such as Henry Steele Commager and Arthur M. Schlesinger attacked Taft, while Edward Corwin criticized Truman. The Senate, however, passed nothing more than a non-binding resolution demanding congressional approval before any additional troops were sent abroad. The deployments went forward, and Presidents since have decided the location of American forces in Europe without any specific congressional authorization.

  Truman made the fundamental decisions that gave American strategy its basic shape for decades to come. To say, as some scholars do, that Truman ruled as an imperial President is to confuse politics and constitutional law. Congress could have blocked many of Truman's initiatives if only it had chosen to exercise the powers at its disposal. If it had disagreed with the Truman Doctrine's assistance to Greece and Turkey, it could have refused to appropriate any aid. If Congress had wanted to withdraw from Europe, as it had during the interwar years, the Senate could have rejected the NATO treaty and Congress could have refused to fund the Marshall Plan. Even if Truman had based troops in Western Europe, Congress could have cut off their funding and reduced the size of the military. Truman may have been able to send the first troops to Korea, but Congress could have ended the conflict by refusing to pay for the war. Congress could even have blocked the containment policy, which called for active American engagement throughout the world. Truman's symmetric version of containment depended on large, permanent increases in military spending as a share of a fast-growing economy. Only Congress could appropriate the funds needed to make containment a reality.

  The Supreme Court imposed limits on the scope of presidential power in wartime, but in a way that has been dramatically over-read in the decades since. In the spring of 1951, at the height of the Korean War, a labor strike threatened to close production at most of the nation's steel mills. Following a similar action by FDR in World War II to end a strike at a critical aviation plant, Truman ordered the Department of Commerce to take possession of the mills because of their importance for arms production. The owners sued on the ground that the President was exercising lawmaking authority without delegation from Congress. Truman argued that the President's Commander-in-Chief and Chief Executive powers allowed him to take action to avert a national catastrophe during wartime. It would be "unthinkable," he said in a press conference, to allow a strike to undermine "our efforts to support our armed forces and to protect our national security."

  In a 6-3 decision, the Supreme Court found that seizure of the mills fell within Congress's power over interstate commerce. Congress's only law in the area delegated no power to the President to seize property to prevent work stoppages; Congress had rejected a proposal for such authority when it enacted the 1947 Taft-Hartley labor law. Writing for the majority, Justice Black concluded that the Commander-in-Chief power did not apply because even though "theatre of war be an expanding concept," it did not extend to the legislative authority to settle domestic labor disputes. "This is a job for the Nation's lawmakers, not for its military authorities."16

  Youngstown Sheet & Tube Co. v. Sawyer has become more influential due to Justice Jackson's concurrence rather than Justice Black's majority opinion. Jackson proposed a three-part test for presidential power: (i) in cases where the President acted pursuant to congressional authorization, "his authority is at its maximum;" (ii) when the President acts in the absence of any authorization in an area concurrently regulated by Congress, "there is a zone of twilight" where the outcome is uncertain, and the "actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law;" and (iii) when the President acts contrary to congressional wishes, "his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."17 Critics of the Presidency ever since have converted Justice Jackson's framework into a broad test for all exercises of executive power. Scholars such as Louis Henkin, Harold Koh, and Michael Glennon have generally relied on Youngstown to argue that Presidents must receive congressional authorization before making war, and that congressional policy takes precedence in foreign affairs.18

  Youngstown, however, stands for less. The majority reached the right outcome because the Constitution gives Congress, not the President, exclusive power over managing the domestic economy. Congress's power over raising and supporting the Army and Navy makes clear that the existence of a war does not give the President the constitutional authority to control the domestic activities to supply the military. As Commanders-in-Chief, Presidents have historically exercised sweeping powers on the battlefield to seize and destroy property, a principle that the Supreme Court did not challenge, nor did it question President Truman's decision to begin the Korean War in the first place. Rather, the Court held that the President's control of battlefield operations in Korea did not reach all the way back to the home front.

  This conclusion respects the control each branch has over its own constitutional turf. Justice Black's approach is just as likely to support the opposite proposition that Congress cannot direct the President as to the conduct of battlefield operations. Justice Jackson's opinion even recognizes that at its lowest ebb, the President might still prevail if his actions fall within h
is constitutional powers. "I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force," Jackson wrote, "at least when turned against the outside world for the security of our society." It was only when those powers were exercised upon "a lawful economic struggle between industry and labor" that the President could not act without congressional authorization.19

  President Dwight Eisenhower never had occasion to test Youngstown because, unlike his predecessor and successors, he never sent the American military into combat. That did not reflect any reluctance to exercise his powers in the realm of foreign affairs and national security. Using his enormous prestige gained from World War II, Ike had campaigned that he would go to Korea and end the war. He rejected the advice of his military commanders in the field, Secretary of State John Foster Dulles, and Republican congressional leaders to expand the war and fight for reunification. Instead, Eisenhower decided to force China to accept a basic return to the status quo by threatening the use of nuclear weapons.

  In a February 1953 NSC meeting, Eisenhower raised the possibility of a nuclear attack on North Korean and Chinese forces.20 In a cabinet meeting that month, the President said that he would let the Chinese know "discreetly" that if progress toward a peace agreement were not made, the United States would "move decisively without inhibition in our use of weapons." The United States "would not be limited by any world-wide gentleman's agreement" on nomase.21Eisenhower threatened a serious escalation, just as Truman had taken the fateful step of using the atomic bomb to end World War II, on his own. An armistice was reached in July; it was never sent to Congress for approval.

  Like Truman, Eisenhower embarked on a wholesale reconsideration of American grand strategy, and like Truman, it was carried out in secret without congressional consultation or input. Eisenhower had campaigned on the rhetoric of liberating "the enslaved nations of the world," which everyone understood as referring to the Communist-controlled nations in Eastern Europe. Dulles attacked containment as a failed policy that would "keep us in the same place until we drop exhausted." The Republican platform rejected containment as "negative, futile and immoral" because it abandoned "countless human beings to a despotism and Godless terrorism."22