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

by John Yoo

  Nixon went to the Supreme Court to resist further subpoenas. He agreed only to hand over written transcripts of the tapes, but with significant redactions. The redactions were revealed to cover important exchanges, such as the President encouraging aides to take the Fifth Amendment before the grand jury. In United States v. Nixon, the Supreme Court unanimously rejected Nixon's claim. Executive privilege, Chief Justice Burger wrote, protects the right of the President to expect confidentiality in his writings and discussions. "A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions," Burger wrote, "and to do so in a way many would be unwilling to express except privately."

  Executive privilege derived from the separation of powers itself, and would be almost absolute where diplomatic and military information is involved, because the right to keep internal deliberations confidential is part of the "supremacy of each branch within its own assigned area of constitutional duties." But when the claim includes only an "undifferentiated claim of public interest" in confidentiality, the President's right must be balanced against the constitutional need for the information by the other branches. In Nixon itself, privilege gave way before the judicial system's need to gather information contained in the Watergate tapes to conduct a fair trial.81 While the Court failed to explain adequately why these rights were at stake in a case brought by the special prosecutor, nevertheless, on July 24, 1974, the Supreme Court ordered Nixon to hand over the tapes.

  After briefly hesitating, Nixon obeyed but could not head off the political momentum for impeachment. The following week, in a bipartisan vote, the House Judiciary Committee reported out articles of impeachment for obstruction of justice. Released to the public on August 5, 1974, the tapes revealed that Nixon had ordered the CIA to block the FBI's investigation only six days after the Watergate break-in. With significant numbers of House and Senate Republicans supporting impeachment, party leaders and high-ranking administration officials urged Nixon to resign. He left office on August 8, 1974, the only President to leave office voluntarily before the end of his term. Along with the impeachment and near conviction of Andrew Johnson, Nixon's resignation represents the nadir of presidential power.

  Watergate is widely and rightly understood as a heavy blow to executive privilege. While it made executive privilege more difficult to claim politically, Watergate oddly set it on more secure constitutional foundations. Nixon affirmed the existence of the privilege and rooted it in the President's supremacy over the constitutional activities of the executive branch. It ratified, for the first time, the claims of Presidents from Washington forward that effective control of the executive branch required confidentiality in receiving and discussing advice. Nixon demonstrates that the Constitution provides effective checks and balances on each of the branches through the political process, rather than through legal decisions in court. It was not the Watergate tapes case that ultimately drove Nixon from office, nor was it arguments that his exercise of executive power in foreign or domestic policy was unconstitutional. Impeachment, rather than court tests or judgments about constitutional right and wrong, was the ultimate check on a President who abused executive power to protect his personal interests, rather than those of his office.

  PRESIDENTS AND THE COURTS

  IF THE COLD WAR witnessed a dramatic expansion in executive power, it was not because of a fundamental change in the Presidency. The change came in the expectations of the federal government's responsibilities for national affairs, and of America's role in the world. Congress wanted the President to run a government that guaranteed economic security at home, and it was willing to allow Presidents to take their traditional initiative in advancing American interests abroad. The President's constitutional powers remained fundamentally the same, but in the postwar period they played on a broader field. A President from an earlier time would have recognized the control of the military, the appointment and removal of executive officials, or policy-making through the interpretation and enforcement of the law. The daily struggle for supremacy between the executive and legislative branches would not have seemed foreign to the writers of The Federalist or the great Presidents who followed.

  What would have seemed strange to them was the executive's relationship with the third branch, the courts. There is a reason why the landmarks in the development of presidential powers during the Cold War often involve Supreme Court cases. During the Cold War, the courts rebuilt the standing that they had lost in the New Deal. The Justices turned their backs on the enforcement of economic liberties and instead expanded judicial authority over the states, and as their popular approval grew, they intervened more directly in the central social issues of the day. Presidents confronted with the challenges of preserving domestic stability and national security deferred more often to the Supreme Court's interpretation of the Constitution. They joined Congresses in leaving the field of controversial issues to judges, who would suffer no electoral consequences for making difficult choices. One result of this dynamic is that presidential nominations to the Supreme Court and even lower courts assumed the trappings of political campaigns.

  Opponents used unprecedented tactics against Supreme Court nominees Robert Bork, Clarence Thomas, and Samuel Alito, who were qualified under the usual measures for the position. Another result of presidential deference is that the Supreme Court extended its reach into core disputes between the executive and the legislature over their constitutional powers. Courts, for example, traditionally waited until the passage of emergency or war before resolving disputes between the President and Congress. No longer.

  During the Cold War, the courts made little effort to police the Constitution's limits on federal power. After the New Deal confrontation, the Court did not strike down another act of Congress for lack of authority for six decades. It almost gave up wholly the idea that individual economic rights were enforceable in court, except for government takings of real estate without just compensation. The courts focused their attention on incorporating the Bill of Rights against the states and resurrecting the Reconstruction amendments.

  The first ten amendments to the Constitution -- such as the right to free speech, freedom of religion, freedom from unreasonable searches, the jury trial guarantee, and the ban on cruel and unusual punishments -- originally applied only to the federal government. In the 1930s and 1940s, the Court began to apply these rights to the states via the Due Process Clause of the Fourteenth Amendment. These decisions nationalized the rules that govern police investigations and criminal trials, such as the Miranda warning given at the time of arrest and Mapp v. Ohio's exclusionary rule. The Court also intervened in matters of religion, sex, and privacy. The Justices banned prayer in schools and restrictions on the sale of contraceptives, gave First Amendment protection to pornography, and by 1973 recognized a woman's right to abortion.82

  A second area of judicial activity was racial discrimination. In Brown, the Court held that segregation in the public schools violated the Fourteenth Amendment's Equal Protection Clause. In the face of Southern resistance, the Court called on the lower courts in Brown II to implement Brown I "with all deliberate speed." The Court followed by banning the use of race in other areas, such as access to public facilities, anti-miscegenation laws, and voting access. Brown did not immediately end Jim Crow laws, but it prompted massive Southern resistance, which itself advanced the Civil Rights movement. In a moment of opportunity tragically made possible by the Kennedy assassination, President Johnson led Congress to pass the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The 1960s and 1970s witnessed unprecedented judicial intervention in the running of state institutions, primarily schools but also housing, prisons, police and fire departments, and hospitals, to enforce desegregation and civil rights. Busing to rebalance school enrollments between whites and minorities led to controversy and resistance in the North.83

  Massive resistance in the Southern states caused the Court to go to extreme length
s to defend its decisions. As we have seen, resistance to Brown forced President Eisenhower to send the 101st Airborne to escort black children to school in Arkansas. School board officials requested a delay in carrying out desegregation because of the state government's opposition. In Cooper v. Aaron, the Court ordered all state officials to fulfill their constitutional obligation to obey Brown. It declared the "basic principle" that "the federal judiciary is supreme in the exposition of the law of the Constitution," a conclusion that would have raised the hackles of Jefferson, Jackson, Lincoln, and FDR. "It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land."

  The Court's defense of its own supremacy might be politically understandable, as it came in response to outright defiance by Southern officials. Cooper might even be correct as a principle of federalism: interpretation of the Constitution by any branch of the national government supersedes state decisions. But as an interpretation of the separation of powers, it was mistaken. While the constitutional structure allows the courts the power of judicial review, nothing gives their decisions supremacy over the other branches. Historically, neither Presidents nor Congresses had conceded to the judiciary the sole right to interpret the Constitution. To do so would have denied the example of past Presidents and the executive oath to support and defend the Constitution.84 Yet, the Warren Court actually advanced the wishes of a majority of the nation by dismantling the racist social system localized in the South.85

  No one understood Cooper at the time as a comment on presidential power, but it contained the kernel of judicial supremacy that would grow in Nixon v. United States and fully blossom during the Clinton and second Bush administrations. Presidents began to accept the decisions of the Court as binding, or at least refused to dispute them. To be sure, aside from the examples of Jefferson, Jackson, Lincoln, and FDR, Presidents had rarely challenged the Court to the point of ignoring its judgments or opinions, which worked to the political advantage of the executive and legislature.

  No matter what principle the Justices choose, a significant portion of the electorate will oppose a decision in a controversial case. Abortion provides but one example. Groups of the electorate hold strong preferences on the abortion question, some to the point where it is the litmus test for office. No matter whether a President is pro-choice or pro-life, his position will generate substantial political opposition. Members of Congress and Presidents interested in reelection will seek to avoid, when possible, making clear decisions on these issues. The expansion of judicial review over abortion, affirmative action, or religion allows a President to take a stand on a controversial issue, but without the expectation of any immediate change in national policy. President Reagan, for example, could campaign on a constitutional amendment to overturn Roe v. Wade, but voters in favor of a right to abortion could discount the possibility of any change on the issue because of the Supreme Court.

  The disintegration of the 1960s consensus over public values provided Presidents with the political support to exert a stronger influence over the judiciary. The Supreme Court had associated itself with the conventional liberal values of the Kennedy and Johnson administrations, but the consensus broke down under the failure of Johnson's Great Society programs and the Vietnam War.86 While it is true that Presidents could not affect the rules on abortion, affirmative action, or criminal procedure, they could affect the institutions that made those rules. Even if they did not want to take a universal stand on abortion, for example, Presidents could promise to appoint judges who would support or reject Roe v. Wade. The politicization of Supreme Court nominations occurred quickly.

  Barry Goldwater became the first candidate to attempt to make an issue of the Warren Court decisions, which he described as exercises of "raw and naked power" and examples of "obsessive concern for the rights of the criminal defendant."87 Although Goldwater was overwhelmingly defeated, he introduced themes that would become core features of the Republican agenda. Nixon truly made judicial appointments a central part of his campaign. With a sharp rise in crime rates and growing social disorder, Nixon promised to appoint "law and order" judges.

  Nixon explicitly linked the Supreme Court's decisions favoring defendants to popular perceptions of a decline in policing. "Some of the courts have gone too far in weakening the peace forces against the criminal forces," he said in his standard stump speech. Riots in 1967 and 1968 -- anti-war protesters, for example, fought pitched battles with the Chicago police outside the Democratic convention -- only made Nixon's arguments more compelling. He promised that he would appoint only "strict constructionists" to the bench who would restore the ability of law enforcement to catch and convict criminals, and thus reverse rising crime rates.88 Nixon's approach to judicial appointments fit neatly with his political strategy of appealing to Southerners who opposed the expanded federal powers that had led to school busing and liberal civil rights laws. His campaign themes, both political and constitutional, helped convert the solid South into the stronghold of Republican electoral campaigns, where it has remained for four decades.

  Reagan built on Nixon's foundations. He openly criticized Supreme Court decisions on school prayer, abortion, busing, affirmative action, and the rights of criminal defendants. Nixon's appointments had stopped the Warren Court revolution in criminal procedure, but had produced no significant change of course in other areas of constitutional law. Nixon had appointed Chief Justice Burger, who was to be the leader of a conservative counterrevolution on the Court, but he followed up by appointing Harry Blackmun, who joined the liberal wing of the Court, and Lewis Powell, who would remain a moderate. Only the selection of William Rehnquist, who would become known as the "Lone Ranger" for his solitary dissents, would fulfill Nixon's promise to appoint strict constructionists.89

  Reagan's efforts to reshape the judiciary went farther. On the campaign trail, he repeated Nixon's promise to appoint judges who "would interpret the laws, not make them." In May 1980, he said, "I think for a long time we've had a number of Supreme Court Justices who, given any chance, invade the prerogative of the legislature; they legislate rather than make judgments, and some try to rewrite the Constitution instead of interpreting it." The Reagan administration came to office with the intention not just of changing a vein of decisions, but of reorienting constitutional law. Faced with a Democratic-controlled House, the administration would have an easier time changing policy through a combination of executive orders, rule-making, and judicial appointments rather than new legislation. Selecting judges who would hold a more modest view of their role, and a narrower view of the Constitution, fit in well with Reagan's declared belief that "government is not the solution" and that the national authorities should leave more decisions to the marketplace and the states.90

  Reagan fared somewhat better than Nixon in his appointments. In 1986, he elevated Rehnquist to Chief Justice. Rehnquist led an effort to limit federal power, attack racial preferences, and reverse the Warren Court's decisions in criminal procedure. In his place, Reagan appointed Antonin Scalia, a federal appeals judge on the D.C. Circuit and a former University of Chicago law professor who would become the Rehnquist Court's brightest conservative legal theorist. Both Rehnquist and Scalia were well-known adherents to the position that the original understanding of the Constitution's text should guide its interpretation. The effect of these appointments, however, was muted by the earlier 1981 selection of Sandra Day O'Connor, an Arizona state appeals judge who would become the Court's moderate swing vote. In 1987, Reagan attempted to build on Rehnquist and Scalia by appointing Robert Bork, a D.C. Circuit judge, former solicitor general, and Yale law professor, who was perhaps the leading exponent of a strict reading of the constitutional text based on the Framers' intentions.

  Bork triggered a political explosion over judicial appointments the likes of which had never been seen in American politics. As recently as the nomination of Justice Byron White, nominees either did not appear before congr
essional committees or did so in a perfunctory manner. Justices often took their seats only a few days after their nomination, but that began to change at the end of the Johnson administration, with the Senate's rejection of Justice Abe Fortas as Chief Justice. The Senate also rejected Nixon's first two nominations to the Court, lower court judges Clement Haynsworth and Harrold Carswell, and fought over Rehnquist's elevation, which attracted 33 votes in opposition but ultimately survived attempts to dig through his past as a Supreme Court clerk and young lawyer.

  Bork's nomination witnessed the first extensive use of political campaign techniques of the kind used for elections and legislation. While judges as individuals are not easily subject to the same type of compromise and give-and-take as a piece of legislation, their positions can be inferred from their judicial ideology, or at least interest groups think so. It was inevitable that, as the Court's expansion of its jurisdiction transferred contentious issues from the political arena to the judicial, the tactics used to pressure the government would follow. Interest groups formed, advertisements and editorials ran, and letter and phone campaigns were coordinated.91