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

by John Yoo

  The National Emergencies Act of 1976 terminated existing national emergencies and required the President to make certain findings to declare a new one. The International Emergency Economic Powers Act of 1977 (IEEPA) allowed the President to impose economic sanctions only after a finding that a grave foreign threat to the national security existed. Presidents from FDR through Nixon had authorized wiretaps for foreign intelligence purposes on their executive authority, rather than through the courts. While the Supreme Court had held that surveillance of domestic threats required a warrant as required by the Fourth Amendment, it expressly left open whether the President would need one to protect against foreign threats. In the Foreign Intelligence Surveillance Act of 1978, Congress required a warrant from a special federal court before electronic surveillance of foreign spies or terrorists could occur domestically. The Case-Zablocki Act required the President to send Congress any international agreement that did not rise to the level of a treaty.65

  Other Watergate reforms aimed at the operation and activities of the Presidency at home. Congress amended the Federal Election Campaign Act (FECA) in 1974 to limit individual contributions to candidates, political action committees, and political parties, and it placed a ceiling on campaign expenditures for presidential elections in exchange for public financing. In creating a Federal Election Commission for enforcement, the FECA eroded the President's appointment powers by allowing the leaders of Congress to choose some of its members, though the Supreme Court would hold this provision unconstitutional.66 Presidents had long considered White House papers to be their personal property, which allowed them to control the access of researchers. In the Presidential Records Act, Congress made Nixon's papers and those of all future Presidents public property and opened them to the public 12 years after the President leaves office.

  Congress pressed openness in government to general executive branch operations as well. It overhauled the Freedom of Information Act to expand the right of access to government records, subject only to narrow exceptions with review by the courts. In the Privacy Act, Congress gave private citizens the right to sue if their own government records were disclosed, and the right to see those records for themselves. The Sunshine Act required that meetings of government commissions and boards be made public, and the Federal Advisory Committee Act extended the same rule to meetings between the executive branch and private groups.67

  All of these laws had the intent to bind the executive branch, to narrow its discretion, to slow its decisions, to force it to act within congressional preferences, and to allow public inspection of its operations. These acts undermined the very character of executive power. Forcing the President to act solely through framework statutes, turning the executive branch into a Swiss cheese of insulated agencies and unremovable officers, and subjecting White House decisions to easy congressional override ignored the reasons for an independent executive in the first place. The President is at his best when responding swiftly and decisively to unforeseen events, when rising to a challenge that is too difficult or dangerous for the legislature. While subjecting the executive to legislative control might alleviate concerns about an unchecked President, it would disrupt the Constitution's creation of three independent branches with the power to balance each other through the political process. Legislative supremacy would threaten liberty just as surely as unchecked executive power would.

  Presidents naturally resisted these efforts to dilute their authority. Aside from Carter's approval (and Reagan's extension) of the Ethics in Government Act, it does not appear that any Cold War President accepted congressional efforts to regulate their core executive functions.68Efforts to reclaim executive power reached their climax as President Reagan sought most aggressively to expand OMB's powers. The Carter administration had shown in high resolution that national policy would lose its coherence under a President with weak powers. Reagan consciously sought to unify law enforcement in the executive branch, and ultimately the White House, to reduce the burdens of regulation on the economy, and to return decisions to the private markets.

  Presidents in the post-Watergate era used the framework laws to enhance, rather than limit, their power and interpreted any congressional failure to prohibit past presidential practice as implicit congressional acquiescence. With the War Powers Resolution, for example, Presidents acted quickly within the 60-day window, which they claimed recognized their constitutional powers to use force without congressional consent. Statutory procedures for approval of covert actions were interpreted to recognize presidential authority to undertake covert actions in the first place. Presidents often treated consultation with Congress before a decision as a mere act of notification, and often delayed filing reports with Congress that triggered restrictions on their powers. Members of Congress usually showed no desire to challenge presidential actions, especially in foreign affairs, that claimed new power under a framework statute. Any legislation to overrule presidential action would be subject to a veto.

  The courts used a variety of procedural doctrines to stay out of conflicts between the executive and legislative branches, or even blessed presidential claims to broad powers.69 A case in point was the resolution of the Iranian hostage crisis. In 1979, Iranian students seized the American embassy in Teheran and held the diplomatic personnel hostage for the next 444 days. In April 1980, President Carter launched a military rescue operation that failed miserably in the Iranian desert. Carter did not follow the War Powers Resolution in carrying it out. In early January 1981, a deal was finally reached to release the hostages in exchange for the lifting of a freeze on Iranian assets in the United States. Companies owed money by Iran sued to prevent the transfer of the assets, which federal courts had attached to satisfy the outstanding claims.

  Carter issued an executive order under IEEPA suspending the claims, nullifying the judicial orders, and transferring the funds out of the country. In an emergency lawsuit, the Supreme Court unanimously rejected the corporations' claims that the government had taken their property without just compensation. They further rejected a separation-of-powers challenge that the President had acted without legal authority. Although IEEPA gave the President the power to nullify orders and transfer assets, the companies correctly argued, it was silent on any power to suspend legal claims. Borrowing Justice Jackson's Youngstown framework, Justice Rehnquist wrote that a long, unbroken practice of presidential settlement of claims with foreign nations, combined with Congress's failure to oppose the practice, amounted to acquiescence. As a sign of Carter's bad luck, even though he had negotiated the agreement with Iran, the hostages did not return until Reagan took office.70

  The Reagan administration sought further judicial ratification for its reassertion of presidential power. Its first step was to cut the ties that allowed Congress to pull formal strings over the exercise of delegated power. In INS v. Chadha (1983), the Reagan administration challenged the legislative veto. Acting under the Immigration and Naturalization Act (INA), the Attorney General suspended the deportation of Chadha, an alien, because he would suffer "extreme hardship." Using the INA's legislative veto provision, the House overruled the Attorney General and placed Chadha back on the deportation list.

  In Chief Justice Burger's majority opinion, the Court found that the House's action amounted to legislation because it changed the legal rights and duties of a private individual. Congress could establish national rules only by enacting a law--passing a bill by a majority of both Houses (bicameralism), which is signed by the President (presentment). Otherwise, it would have to live with the results of the executive branch's exercise of its delegated power. "Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked."

  More was at stake than just the Presidency. The Framers, according to the Court, had lived with unchecked legislative power and wanted to make the passage of legislation difficult in order to protect private liberty. Bicameralism and presentment "were intended to erect enduring checks on each
Branch and to protect the people from the improvident exercise of power." To be sure, the elimination of the legislative veto might make Congress less likely to delegate power to the executive branch in the future. But Chadha clarified the lines of accountability and returned Congress to the regular methods of legislation, oversight and confirmation hearings, or funding cut-offs.71

  Step two was to reverse Congress's efforts to shift law enforcement authority away from presidential control. In 1986, the Reagan administration sued to block the Balanced Budget and Emergency Deficit (Gramm-Rudman-Hollings) Act of 1985. Unable to overcome the collective action problem in agreeing to reduce the budget deficit, Congress set spending reduction targets for a five-year period. If the deficit did not hit the target, the Act required automatic across-the-board spending reductions to be calculated by the Comptroller General and implemented by the President.

  A strange hybrid, the Comptroller General serves as head of the General Accountability Office and can be removed only by Congress. According to the Court, granting the Comptroller General a role in the Gramm-Rudman-Hollings scheme violated Article II of the Constitution. "To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws." This violated the Framers' intent to create "a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch responsible ultimately to the people." Again, the Court emphasized that the Framers were worried that "the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches."72

  Reagan's campaign before the Supreme Court rested on the independent agencies. The administration challenged the constitutionality of the independent counsel, who received the same protections from presidential removal as agency commissioners. Morrison v. Olson (1988) addressed the investigation of Theodore Olson for his advice, while assistant attorney general for the Office of Legal Counsel, that the President invoke executive privilege before a congressional investigation. The committee claimed that Olson had misled Congress in providing the advice. Upon the referral of the chairman of the congressional committee, the Attorney General asked for an independent counsel. Olson challenged the constitutionality of the counsel's appointment and removal provisions while the Iran-contra affair was unfolding, and prevailed in the U.S. Court of Appeals for the D.C. Circuit.73 The Reagan Justice Department supported Olson before the Supreme Court.74

  No doubt worried about the public criticism that would follow an end to the Iran-contra investigation, the Court jumped off the Reagan revolution train. Rejecting Humphrey's Executor's creation of quasi functions, the Court returned to a cleaner division among the executive, legislative, and judicial branches. Congress cannot interfere with the President's executive power or his constitutional responsibility to execute the laws, and according to Chief Justice Rehnquist's majority opinion, there was no doubt that the independent counsel's functions were executive. Unlike Bowsher v. Synar, however, Congress had not retained control over the independent counsel but had only restricted the prosecutor's removal. While there was some reduction in the President's authority, the Court believed it was outweighed by the importance of establishing independence for those who would investigate the highest-ranking executive branch officials.75

  "Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing," Justice Antonin Scalia declared in his Morrison dissent. "But this wolf comes as a wolf." The independent counsel, in his view, violated the Constitution's vesting of all of the executive power in the President. It upset the political functioning of the separation of powers by releasing a politically unaccountable and unrestrained prosecutor whose sole job was to pursue selected executive branch officials. The following decade fulfilled Scalia's prophecy.

  At least five independent counsel investigations targeted Clinton administration cabinet members, including the Secretaries of Commerce, Housing, and Agriculture, but the most serious and damaging to the Presidency focused on the web of scandals known as "Whitewater." At its center was an allegation that then-Governor Clinton and his wife had protected a failed federal savings and loan in exchange for favorable real estate investments and financial support. Eventually led by former judge Kenneth Starr, the investigation grew to include the firing of the staff of the White House Travel Office, the death of Vince Foster, the misuse of White House security files, and allegations of a cover-up of the sexual harassment of Paula Jones and an affair with intern Monica Lewinsky. Clinton partisans launched personal attacks on Starr because of his long Republican ties, including service in the Reagan and Bush Justice Departments. Undaunted, Starr reported to Congress that Clinton had likely committed perjury about his relations with Lewinsky. A sharply divided House voted to impeach Clinton, but the Senate acquitted. After eight years on the receiving end of investigations, Democrats joined Republicans in allowing the independent counsel law to lapse in 1999.76

  Presidents did not neglect methods outside the courts to reassert their constitutional authority. Executive privilege remained an important method for presidential control, but one that continued to spark controversy over the right balance between democratic accountability and effective administration of government. It is important to recognize that executive privilege has only taken on the taint of cover-up since Watergate. Presidents have long resisted congressional and judicial inquiries for information, though not consistently, when the release of the information could harm the national interest. Presidents have sought to protect the confidentiality of diplomatic and national security information for obvious reasons: a failure to keep secret negotiations, intelligence, or military planning could lead to setbacks for national policy or discourage other nations from cooperating. Domestically, the harm from disclosure of executive branch information is less dramatic but perhaps more systematic. Confidentiality preserves the benefit of candid advice and open argument and discussion among advisors and reduces the amount of outside political pressure on government decisions. The Framers, after all, conducted the Constitutional Convention in secret for that very purpose. Some information, such as the subject of criminal investigations, might prove highly prejudicial if prematurely released to the public.77

  Truman and Eisenhower illustrate the exercise of executive privilege for good purposes. Probably the most corrosive development in domestic politics during the Cold War was the Red Scare. In 1947, the House Un-American Activities Committee (HUAC) began investigations into the loyalties of members of the Truman administration. The Soviet acquisition of nuclear weapons and the fall of China led to even stronger Republican claims of traitors within the executive branch. Truman issued an executive order establishing a loyalty and security program, but it did little to slow the political juggernaut, and Whittaker Chambers's testimony before the HUAC that Alger Hiss, a former top State Department official under FDR and Truman, was a member of the Communist Party drove investigations to even greater lengths. In 1950, an obscure Republican Senator from Wisconsin, Joe McCarthy, began to make his sensational and unsubstantiated claims of Communists in the State Department. McCarthy even went so far as to attack the loyalty and patriotism of General George Marshall. In 1953, from his perch as chairman of the Senate Committee on Government Operations, McCarthy launched the hearings into the army which would eventually destroy him.

  Presidents responded by invoking executive privilege to protect government officials. In 1948, Truman refused to transfer to HUAC any files on the loyalty of employees. Two years later, he directed the Secretary of State and Attorney General to decline a Senate subpoena for information on the loyalty of State Department employees. The following year, he prohibited General Omar Bradley from testifying before the Senate Armed Services Committee about the MacArthur firing, a claim of privilege that the committee accepted.

  In 1954, McCarthy's committee demanded communications between the army counsel, top White House aides, an
d Justice Department officials, provoking perhaps the most sweeping invocation of privilege by any President. In a public letter on May 17, 1954, Eisenhower ordered the Secretary of Defense that no DOD employees were to testify or provide information to McCarthy's committee. Eisenhower declared that it was "essential to efficient and effective administration" that executive branch officials "be in a position to be completely candid in advising with each other on official matters" and that it was "not in the public interest that any of their conversations or communications" or documents containing their advice be disclosed to Congress. Eisenhower observed that the executive branch had an obligation to furnish information to congressional committees to assist in their legislative activities, but that Presidents were responsible for the conduct of the executive branch and could withhold information that was "confidential or its disclosure would be incompatible with the public interest or jeopardize the safety of the Nation."78 Summarizing his order for top Republican lawmakers, he declared that "any man who testifies as to the advice he gave me won't be working for me that night." Eisenhower's invocation of privilege effectively, though indirectly, put an end to the McCarthy hearings.79

  Executive privilege protects the President's control over the executive branch, just as the confidentiality of advice between members of Congress and their legislative directors, or judges and their law clerks, is central to the effective operation of the other branches. Its utility depends on the function and the relative positions of the Presidents and Congresses on the issue at hand. Just as McCarthyism showed the potential for good in executive privilege, Watergate showed the bad. In the Watergate crisis, Nixon would not allow his staff to testify before the Senate Watergate Committee on national security matters or written and oral communications with the President. But the conduct under investigation was not part of their official duties. Ordering the burglary of the offices of the Democratic Party, or covering up the President's involvement, does not fall within the definition of the official duties of the Chief Executive. Nixon's invocation of the privilege was the most damaging politically, and on the weakest grounds constitutionally, in response to subpoenas from the Senate Watergate Committee and the special prosecutor for the White House tapes. The end began when tapes turned over to the federal district court revealed an 18.5-minute gap in a conversation between Nixon and Chief of Staff H. R. Haldeman three days after the break-in. In March 1974, the second special counsel, Leon Jaworski, indicted Haldeman, Ehrlichman, and former Attorney General John Mitchell.80