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

by John Yoo

  Democrats, who had retaken control of the Senate in the 1986 elections, considered the Bork seat pivotal. He would replace Justice Powell, a moderate on the Court whose fifth vote decided the Court's outcomes on abortion, race, and privacy. Senate Democrats launched an aggressive stance that portrayed Bork's constitutional views as outside the mainstream. As a law professor, Bork had left a trail of academic writings that had questioned the Warren Court's methods and outcomes, but they bore little resemblance to the charges made against him.

  The Judiciary Committee held hearings that featured the most extensive public testimony from a nominee in recent history. Senators held detailed exchanges with Bork on his theories of constitutional interpretation and his views on numerous Supreme Court cases. For his part, Bork did not shy away from the questions by claiming that they would come up before him as a judge, as most nominees do, but instead came out swinging. The Senate rejected Bork's nomination 58-42, and the President nominated in his place Anthony Kennedy, who joined O'Connor as a swing vote in the middle of the Court.

  Bork's defeat politicized the appointments process. It has been much criticized by those who believe that the process has become too political or has failed to live up to the original constitutional design. Some believe that the Senate should confirm nominees based on their experience and qualifications, and that considerations of judicial ideology are inappropriate. The Appointments Clause gives the President the authority to nominate and appoint, subject only to the Senate's advice and consent. The clause's structure clearly gives the President the initiative and in this respect is similar to the Treaty Clause, in which the executive negotiates and makes the treaty.

  During the Constitutional Convention, the Framers clearly moved the power to nominate from the Senate to the President because they feared that giving the legislature the upper hand would lead to factionalism and horse-trading. In The Federalist 76, Hamilton explained that a single person would be "better fitted to analyze and estimate the peculiar qualities" needed for a specific job, and "the sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation." On the other hand, there is little evidence that the Framers believed the Senate was limited in what it could consider. Under the objective qualifications approach, much of the politicization of the Senate's confirmation process has been illegitimate and directly harmful to the idea of the Court as a legal, rather than political, institution. But the only support for the deference that Senators have provided to the President's judicial nominees appears to be history.92

  It is hard to feel much sympathy for the Court, because the politicization of appointments is a secondary effect of its own decisions. Judicial power has expanded to include more and more of society's most important questions. Today, the Court claims that its interpretations of the Constitution are supreme, not just over the states, but over the other branches.93 It is only inevitable that players in the political system will seek to advance their agendas by influencing the only institution that can make many of society's fundamental choices on abortion, privacy, affirmative action, criminal procedure, and religion. The most direct way to change national policy on these issues is to change the makeup of the Supreme Court. Moving these issues into the courts did not remove them from politics; it only brought more politics into the courts.

  The Court's drive for supremacy has increased executive power in the political short term at the expense of the long-term interests of the Presidency. Presidents have been able to put issues such as abortion or affirmative action on the back burner because there was little chance they could change national policy. Congress was in the same position: with the Court taking control of these issues, legislation could not change the outcomes. The executive has an advantage over Congress in pursuing policy changes through the judiciary, as the Appointments Clause gives the President the initiative in selecting the nominees. A Senate determined to advance a contrary view of constitutional law can only reject judicial nominees, not pick them. While the Senate has turned down a number of Supreme Court nominees, the President's selections have historically been confirmed at a rate of over 80 percent. To the extent that the Court has succeeded in achieving supremacy over many important social issues, it has tipped longer-term control over the issues in favor of the President at the expense of Congress.

  Judicial supremacy, however, ultimately harms the Presidency. The President's first and most important job is to support and defend the Constitution, and performing that function requires the President to decide what the Constitution means. Presidents cannot grant that role to the judiciary, just as they cannot allow Congress to dictate how they will exercise their appointment, treaty, or Commander-in-Chief functions. The Constitution establishes a framework where each branch of the government must interpret the fundamental law in the course of carrying out its own unique functions.

  The judiciary has an equal right to interpret the Constitution, but its opinions are no more binding on the other branches than the decisions of the President and Congress bind the courts. Supporters of judicial supremacy today either agree with the results of the Supreme Court's current opinions or see wisdom in having one institution decide the Constitution's final meaning. But they ignore the long historical practice of presidential interpretation of the Constitution, and they have no solution for mistaken judicial decisions like Dred Scott or Plessy v. Ferguson. As Lincoln showed, Presidents can present alternative meanings of the Constitution, ones that may be more true to the original understanding and may better apply to today's circumstances, than those of the Justices.

  CONCLUSIONS

  REGARDLESS Of POLITICAL party or electoral support, the great Cold War Presidents shared a common attitude toward presidential power. Presidential activism abroad was demanded by necessity, rather than adventurism. Presidents launched wars and covert actions throughout the world to contain the Soviet Union. The global reach of the Soviets and their possession of nuclear weapons seemed to call for greater centralization of policy in the branch best able to act with secrecy, speed, and decision. Congress could have chosen to stop the executive by refusing to provide funds and troops, but it preferred to keep a large standing military ready and available. Congress had every political incentive to allow the President to take the initiative, and to be blamed if war and national security went badly.

  A similar dynamic characterized the Cold War Presidency at home. Even though Congress held the constitutional upper hand over domestic affairs, the change in the nature of the federal government placed the President in the central role. Congress was only too happy to delegate to the executive branch the rule-making authority over issues with difficult trade-offs. Enhancing presidential control over the agencies helped coordinate decisions and ensure a common administrative policy. Congress naturally sought to maintain its ability to influence the agencies, leading to struggles over the removal power. The Supreme Court would uphold restrictions on removal, but the political system came to its senses and ended any new efforts to fragment the executive branch.

  The Cold War witnessed the high and low points in the exercise of presidential power. Watergate ripped apart the political fabric of the nation and weakened popular trust in government, but the abuse of power by a single President in pursuit of his personal interests, as opposed to those of the nation, should not obscure the greater benefits from executive initiative. Because of the consistent application of force and pressure against the Soviet Union and its allies by Presidents of both parties, the United States was able to counter the most profound threat to its existence. While it fought several smaller wars and suffered its share of casualties, the United States achieved this result without losing the lives and treasure that come from a great power war. It would have been impossible without the exercise of presidential power from the Korean War, to the Cuban Missile Crisis, to the Reagan Doctrine.

  This should give pause to critics who believe the problem with the modern Presidency is that
it has grown too strong. Watergate understandably provoked a flurry of reforms designed to restrict presidential powers, but the problem with Watergate was not the Presidency itself, but the man who used the powers of the office to advance and protect his personal interests. While the Watergate reforms proved somewhat toothless, Congress has it well within its powers to stalemate any President. Luckily, the Cold War Congresses supported Presidents to bring the Cold War to a fortunate conclusion. Congress could have passed stricter laws that would have guaranteed that another Nixon could not abuse the powers of his office, but they would have come at the price of an energetic executive capable of defeating the Soviet Union. Executive power could have been domesticated, but only by depriving it of the very qualities that allowed it to respond successfully to the challenges of the Cold War.

  CHAPTER 9

  The Once and Future Presidency

  THE AMERICAN PRESIDENCY can provoke a schizophrenic response in its students. Richard Neustadt's Presidential Power portrays a Chief Executive whose formal weakness forces him to advance his agenda by persuasion. He can bargain with other political actors, but he cannot command. By the end of the Vietnam War, Arthur Schlesinger, Jr., was sounding the alarm against an Imperial Presidency that had transformed the office into the supreme branch, rather than a coordinate one. In the next decade, political scientists described a Resurgence of Congress and left the President out of sophisticated models of legislative behavior.1 By the late 1990s, political scientists began to include more vigorous accounts of the President's role in exercising the veto and issuing executive orders. During President George W. Bush's first term, scholars discussed the President's Power without Persuasion, and others warned of the return of a New Imperial Presidency, a Terror Presidency, and of a Takeover of democracy.2

  No single work can fully grasp the Presidency in all of its dimensions. If the Presidency is both so strong as to be imperial, and so weak that it can only persuade, we are all looking at the same elephant through different pinholes and neglecting the possibility that the President's power fluctuates depending on the historical context. These works, illuminating though they may be, sometimes see these patterns in reverse. Neustadt viewed the Presidency of the 1950s and early 1960s as weak, but subsequent historical work showed Eisenhower to be in full command, and that Kennedy took advantage of his constitutional powers during his few years in office. Even as the phrase "imperial presidency" entered the political lexicon, President Nixon was headed for impeachment, followed by two Presidents who suffered from political and institutional handicaps and served only one term. As political scientists built their systems of congressional voting, Reagan was restoring presidential power after the drift of the 1970s. Even as books decrying the Bush Presidency arrived in the stores, Republicans lost the 2006 midterm elections and the Oval Office in 2008.3

  These cycles reflect a permanent feature of the Presidency, rather than the character of individual Presidents. As some scholars have suggested, the Presidency contains a growing paradox.4 Americans now expect their Chief Executives to secure economic growth and international peace, cure the credit problems in the housing market, reform the health care system, solve the challenges of terrorism and the Middle East, and even control global warming. On its own, the office of the President lacks the formal power to implement final policy in many of these areas. On domestic policy, Congress has the upper hand; the President's formal role is limited to making proposals and exercising a conditional veto. For foreign affairs, Presidents have the initiative and manage day-to-day policy, but Congress must provide the funds, change trade laws, and establish the size and shape of the military.

  Presidents have relatively fixed powers but exaggerated responsibilities, for which they can blame their predecessors. Theodore Roosevelt transformed the office into a "rhetorical presidency," and his cousin made it a "plebiscitary presidency."5 They both found that marshalling public opinion through direct communication with the electorate enhanced their ability to build political support for their agenda. Using public approval, however, has led the electorate to hold Presidents accountable for progress in areas outside their formal powers. Presidents of all stripes and parties have inevitably expanded their powers to meet their political responsibilities.

  PRESIDENTIAL POWER IN THE MODERN AGE

  ONE OF THE LESSONS of this book is that the Constitution creates a mass of executive power that can help Presidents rise to the challenges of the modern age. This power does not ebb and flow with the political tides, but finds its origins in the very creation of the executive. The Framers rejected the legislative supremacy of the revolutionary state governments in favor of a Presidency that would be independent of Congress, elected by the people, and possessed with speed, decision, and vigor to guide the nation through war and emergency. They did not carefully define and limit the executive power, as they did the legislative, because they understood that they could not see the future.

  If Congress could enact legislation that successfully anticipated all possible circumstances that the nation might confront, or could act swiftly and decisively itself, a separate executive might be unnecessary. Those who wrote and ratified the Constitution, however, viewed untrammeled legislative power with deep suspicion. More often than not, the dominant state legislatures of the Revolution had failed to organize effective executives and had fallen into interest-group politics. The Continental Congress, which had no executive or judicial branch, suffered paralysis. Erecting an independent executive, and an independent judiciary, would allow the nation to act effectively and restore balance to its political system.

  Use of presidential power does not signal failure -- otherwise, Presidents like Washington, Jefferson, Jackson, Lincoln, and FDR would not merit their reputations today. Nor does executive action guarantee success. Instead, it sets the foundation for a President's ability to achieve. Our greatest Chief Executives have all vigorously exercised the powers of their office to the benefit of the nation -- establishing the independence of the executive branch, purchasing Louisiana, blocking the politicization of the national bank, winning the Civil War, entering World War II, or containing the Soviet Union -- but only in times of crisis. A branch headed by a single person, as Alexander Hamilton recognized, can act swiftly and decisively because it is not subject to the crippling decentralization of Congress. Emergencies and foreign affairs sit at the core of the purpose of the executive, and no President has successfully responded by passively following Congress's lead and forsaking his right to independent action.

  Presidents have often wielded their powers in the face of congressional silence, and sometimes they have acted contrary to Congress to advance what they perceived to be the national interest. Obviously, Presidents will find governing easier when their political party enjoys large majorities in Congress. Some scholars link the growth in the Presidency to its position as party leader, and attribute the loss of executive influence to efforts to govern through an administrative state instead.6 But even under unified government, Presidents have had to rely upon their constitutional powers when acting at odds with the wishes of their legislative supporters. Jefferson over-came constitutional qualms about the Louisiana Purchase; Lincoln rejected congressional Reconstruction plans; FDR tried to pack the Court and unseat leading Democrats in the South. Congress can still frustrate a President of the same party and doom him to failure, as was the case with Jimmy Carter and Herbert Hoover. Party government remains an important feature of the power of the modern Presidency, but it can act as a straightjacket just as easily as a lever.7

  The same dynamic describes the relationship between the Presidency and the administrative state. Agencies facilitate the implementation of executive branch policy. Without the main cabinet departments, the President could not achieve priorities on finances, defense, law enforcement, or foreign policy, not to mention the broad array of decisions on economic and social issues delegated by Congress. On the other hand, the agencies create bureaucratic routines that hem
in a President's ability to achieve swift change. While they are designed for rational, comprehensive planning, agencies and their processes inherently resist the ideas of a new President. The inertial weight, or even the outright opposition, of the bureaucracy -- composed, after all, of career civil servants who have their own policy interests -- is compounded by the emergence of powerful interest groups, congressional oversight committees, and a media culture focused on conflict. Presidents have responded by attempting to strengthen their control over the administrative state through their constitutional powers of removal, just as Congress has sought to keep agencies within its own political orbit.

  While executive power is more general and open-ended than other powers in the Constitution, it is not undefined. Its general nature does not automatically subject it to congressional control, any more than the vesting of the "judicial power" in the federal courts makes judges the servants of Congress. The bulk of executive power rests in foreign affairs and national security, where it is most suited to effective action. During peacetime, the Constitution limits the Presidency to enforcing the law (which includes, as the highest law, the Constitution itself) and managing the executive branch. While executive power has grown throughout American history, its most vigorous use appears sporadically. Only crises and challenges call it forth.

  World War II and the Cold War broke this pattern of peacetime quiet punctuated by presidential action in times of crisis. The postwar growth in presidential power is not the result of the inexorable and unwarranted aggression of an imperial executive, but America's changing place in the world and its new ambitions at home. Foreign policy has unquestionably become of vital importance to the nation. By the end of World War II, American leaders finally understood that events abroad dramatically affected the nation's security as advances in transportation, communication, and technology eliminated the distance and security that the oceans once provided. Committing to the defense of Western Europe and East Asia required the permanent mobilization of a large standing military. Containing the Soviet Union and maintaining a liberal international order based on free trade and democracy demanded the ability to exert military and diplomatic force along many dimensions. As the executive was designed to be continually "in being" and to have the leading constitutional role in foreign affairs, presidential power naturally increased to match the demands on the government. What marks the postwar period as a sharp break with the past is not presidential unilateralism; rather, it is the change in circumstances that demanded executive initiative. It was not the Presidency that became imperial, it was the United States that became an empire.