by John Yoo
Rising expectations of government prompted a corresponding jump in presidential power at home. The New Deal's goal of guaranteeing economic security demanded a massive expansion of federal economic and social regulation. In the 1960s and 1970s, Congress broadened the role of the federal government into civil rights, the environment, consumer safety, poverty, housing, and crime. Extensive intervention called for bureaucratic resources that Congress simply does not have and would not want. Delegation to the executive branch agencies served multiple purposes. It allowed Congress to shift responsibility for decisions that are politically controversial, call for difficult choices based on technical and scientific information, and involve high but unpredictable stakes. Members of Congress could focus their limited time and energy on spending programs, earmarks, and tax breaks for constituents and interest groups who supported their reelection.8
A second lesson of this book is that the notion of an unchecked executive, wielding dictatorial powers to plunge the nation into disaster, is a myth born of Vietnam and Watergate. Congresses have always possessed ample ability to stalemate and check an executive run amok. Congress regularly ignores executive proposals for legislation, rejects nominees, and overrides vetoes. It can use its power over legislation, funding, and oversight to exercise significant control over the administrative state. There would be no agencies, no delegated powers, and no rule-making without Congress's basic decisions to create the federal bureaucracy. It can use these authorities even at the zenith of presidential power: foreign affairs. Congress can cut off war funding, shrink the military, stop economic aid, and block treaties. It used its sole control of the purse to limit the Mexican-American War and to end the Vietnam conflict, for example.
Of course, cooperation between the President and Congress on national security policy is politically desirable, but it has never been constitutionally necessary. As we have seen, our greatest Presidents have, at times, acted contrary to Congress to protect the nation. It was their judgment that the Constitution did not require the government to sit on its hands until both the President and Congress agreed on every particular. It is no doubt correct that requiring legislative consent would promote greater deliberation and slow down hasty decisions. But the collective-action problems that make the legislature slow bear costs, too -- costs that can become acute when national security is involved, especially in light of technological change that has made weapons swifter and vastly more destructive. Expanding the numbers involved in decision-making does not guarantee that the results will prove more accurate. Congress makes mistakes just as the executive does, and the costs of national security paralysis might outweigh any marginal decrease in errors.
Political scientists are beginning to appreciate that the model of an institutionally weak executive cannot explain the growth of presidential power during the last half century. Recent works applying game theory to the separation of powers have recognized a large area for presidential action. According to these studies, the President will most often be able to succeed in areas where the stakes are high, the issues are complex and unpredictable, or political controversy means large portions of the electorate will disagree with any government decision. Congress has far more interest in awarding discrete benefits to constituents and supporting interest groups than in risking a serious mistake of national policy or generating political opposition. If the President acts first, Congress will have to take an affirmative step to overrule him. A presidential veto of that legislation will be sustained if more than one-third of the Senate agrees with him. Not surprisingly, legislative proposals to overrule executive orders rarely succeed.9
These approaches cannot work without a proper understanding of the President's constitutional authorities. Take the effort to model the President's role in the legislative process. During the 1980s and 1990s, political scientists developed rigorous frameworks to understand the movement of legislation through Congress. In these models, the role of the President was often an afterthought, an oversight since corrected by the work of the last decade. These scholars identify the conditions in which presidential vetoes, or even the threat of a veto, will win policy concessions from Congress.10 For that variable to be significant, the President must have the power to veto legislation on policy, rather than just constitutional, grounds. Without that change in the understanding of the President's veto power, his ability to influence legislation would be dramatically reduced. Scholars also observe that Presidents prevail more often in foreign affairs than any other significant area. As with the veto, this would not be possible without an understanding of the President's constitutional authorities. One singular reason that the President may win more often in foreign affairs is simply that his constitutional powers, and hence his freedom of action, are greater beyond the nation's borders.
Exercise of these constitutional powers does not guarantee presidential greatness or success. Progressive scholars of the first half of the last century believed that the President should the play the role of a political hero who would represent the people better than a Congress beset by special interest groups. Chief Executives would use their constitutional powers to restore democracy and expand the powers of a national government that would respond to the people's wishes. But Andrew Johnson, Lyndon Johnson, and Richard Nixon demonstrated that not everyone would rise to this vision of the reformer President. Executive power does not inexorably bring progress. Constitutional power may not be enough to help the President overcome the many demands and obstacles placed in his way by the modern political system, and it certainly does not prevent a President from making poor decisions.
Yet, executive power remains the wellspring of a President's ability to play a transformative political role, which remains a key distinction between the great and the merely good. Stephen Skowronek has persuasively argued that the Presidency's political authority moves in cycles. Certain Presidents are "reconstructive" -- they repudiate a vulnerable political order, often shown to be incompetent during times of crisis, and replace it with a new one. Other Presidents maintain the existing order and governing coalition, with their success declining rapidly if events have undermined the regime. A small set of Presidents come to office opposed to the existing political system, but that system is resilient, and efforts to preempt it will lead to conflict and often failure. A President's success depends on his matching his political "warrants" -- in other words, his electoral and political support -- to the circumstances of his day. According to Skowronek's retelling of presidential history, a deep structure generates recurring cycles of reconstruction, maintenance, and ultimately collapse. As the nation becomes institutionally richer, more populous, and more sophisticated, it becomes difficult for Presidents to overthrow the existing political order.11
The executive's constitutional powers provide the foundations for this dynamic. Skowronek's list of reconstructive Presidents is the same as this book's: Jefferson, Jackson, Lincoln, and FDR. Both lists track the Presidents usually rated as the greatest, and those elections considered pivotal in American history.12 This book examines constitutional, rather than political, authority, but it is significant that the Presidents who established new governing regimes, some lasting almost 70 years (Lincoln), were also those who wielded their constitutional powers in the broadest ways. Because these Presidents came at the head of parties elected to sweep away a discredited political regime, their constitutional powers were critical to replacing the existing order. Executives dependent on Congress would find it far more difficult to establish the durable political orders of the Jeffersonian, Jacksonian, Republican, or New Deal periods. Congressional efforts to limit presidential power often represent the efforts of a status quo regime to prevent the rise of its successor.
Presidents achieve greatness for more than their reconstruction of the political system. Our best Chief Executives brought the nation safely through unprecedented crises and emergencies. Washington, Lincoln, and FDR remain the three greatest because they led the country through its b
irth, its rebirth, and its rise to great power status. Jefferson acquired the Louisiana territory, and Jackson started the drive toward the Pacific. Our Cold War Presidents patiently pursued the strategy of containment and eventually exhausted the Soviet Union. None of our great Presidents was a stranger to controversy. They relied heavily on their unique constitutional powers to take action -- the very same powers that, in other hands, could produce disaster. At the time, they were often accused of dictatorship, tyranny, and acting above the law. History has proven them right, but it has taken decades or even centuries of perspective for their vindication.
Examples of presidential greatness caution against going beyond the Constitution to restrict executive power. After Watergate, Congress enacted a series of laws, such as the War Powers Resolution, intended to restrain the "imperial presidency." But within a decade, Presidents of both parties had worked around many of these statutes, without much opposition from Congress, to restore the capabilities of their office. But suppose Congress turned serious about altering the Presidency's institutional abilities. It could attach funding cutoffs to any laws creating military units or national security functions; reenact the independent counsel law; downsize the size and scope of the White House staff; and terminate delegated authority. The powers that some Presidents have abused, however, can be the very same ones that have allowed other Presidents to become great. Reducing presidential power for fear of another Nixon or Bush (depending on one's political perspective) could also cripple another Lincoln or Roosevelt. Critics of executive power desire a risk-free Presidency, but by creating a system designed to ensure against the risks of presidential action, they would defeat the very purpose of the executive.
Efforts at reform ignore the robustness of the original constitutional design. We have had poor Presidents, perhaps more than we like to admit, and we have had abusive Presidents, though perhaps fewer than commonly assumed. Our political system allows even these bad Presidents to stymie Congress and the courts, but when it comes to an unconstitutional abuse of authority, our system has shown the capacity to respond. Andrew Johnson and Congress fought to a standstill on Reconstruction, and eventually the Radical Republicans prevailed through impeachment and the next election. A combination of Justice Department investigation, media reports, and impeachment forced Nixon to resign. Impeachment by a Republican Congress placed Bill Clinton on the defensive for his second term, while the 2006 midterm elections forced George W. Bush to compromise and negotiate with a Democratic Congress. Bush's ability to continue the war in Iraq in the face of vigorous opposition serves as a reminder both of the President's constitutional preeminence in war and Congress's political reluctance to use its power of the purse to stop him.
THE BUSH PRESIDENCY
GEORGE W. BUSH has sparked a resurgence in popular interest in presidential power. Many of our great and near-great leaders have been wartime Presidents, but war has also led others, such as Johnson or Nixon, to make critical errors of judgment and policy. Partisanship and poll ratings will give way to the passage of time, just as they did to the benefit of Harry Truman and to the detriment of John F. Kennedy. What this book shows is that the claims of dictatorship or of a President acting above the law are exaggerations no different from the attacks on other vigorous Presidents. On some questions, the Bush administration acted well within the example of past Presidents; in others, it even sought greater accommodation with the other branches. Today's conflict over presidential power does not truly arise over whether the authorities in question exist, but whether now is the right time to exercise them.
War power is the most immediate and obvious example. Like Presidents before him, Bush claimed the authority to use force to defend the national security. But unlike his predecessors, he did not use it. In the wake of the September 11, 2001, terrorist attacks, the administration sought and received from Congress an Authorization to Use Military Force (AUMF). It was sweeping, perhaps the broadest grant of war power by Congress since World War II. It authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks."13
The AUMF recognized that "the President has the authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." It was unlimited as to time or geography. Nor did Bush rely solely on his presidential power in Iraq. Again, the administration sought and received from Congress another AUMF, this time aimed at Iraq and Saddam Hussein. While not as broad as the September 11 resolution, it still granted significant power to the executive branch. Congress authorized the President to use the armed forces "as he determines to be necessary and appropriate" to achieve two objectives: "defend the national security of the United States against the continuing threat posed by Iraq" and "enforce all relevant United Nations Security Council resolutions regarding Iraq."14
Critics of the Iraq war have since claimed that the Bush administration provided misleading information to Congress. If it did so, it was nowhere as serious as President Polk's description of the events that led to the declaration of war against Mexico. But it is a mistake to think about the intelligence regarding Iraq in 2002 as the same in kind as the information about the Mexican-American War, Pearl Harbor, the Tonkin Gulf, or even Jefferson's war against the Barbary Pirates. In those conflicts, Presidents reported to Congress on events that had already occurred, and those facts either led Congress to authorize war or not. In contrast, the facts about Iraq involved prediction about the future. The decision on war did not focus on whether Iraq had aggressively acted to justify a military response, but whether the intentions and capabilities of its regime posed a sufficient threat to justify a preemptive attack. Such judgments will involve speculations, guesses, and estimates of future costs and benefits that may turn out to be wrong, but we should not confuse mistakes for a conspiracy.
If Congress were serious about claims that the executive branch deliberately misled it, it could have used its powers over funding, oversight, and legislation to influence the intelligence agencies. Select committees in the House and Senate had received classified briefings from the CIA on all covert operations and intelligence programs. If Congress believed that the executive branch deliberately manipulated information about Iraq, it could have restructured or cut funding for the national security agencies and programs. Or, ultimately, it could have impeached the President.
Putting the justification for war to one side, much of today's controversy over presidential power has settled on the conduct, rather than the initiation, of war. Critics of the Bush administration attacked the "surge" strategy of sending more troops to Iraq to secure Baghdad and its surrounding provinces. They argued that the executive branch cannot detain prisoners in the war on terrorism at the U.S. naval base at Guantanamo Bay, Cuba. They challenged the use of coercive interrogation measures on al Qaeda leaders and the establishment of military commissions for the trial of terrorists. They claimed that the National Security Agency's surveillance of the communications of suspected terrorists without a warrant, inside the United States, violated federal law and the Fourth Amendment.
Critics went to Congress to cut off funds for the Iraq war, but failed. Proposals to restrict the warrantless surveillance of suspected terrorists went nowhere. The opposition found more success in its efforts to seek legislation regulating military interrogation and trials. Critics have won some successes in the Supreme Court, which extended its jurisdiction in 2004 to hear cases arising out of Guantanamo Bay, blocked portions of the military commission rules in 2006, and expanded the right of the judiciary to review military detention decisions in 2008.
President Bush initially undertook many of these policies under his powers as Chief Executive and Commander-in-Chief. To be sure, the administration made broad claims about its powers under the President's constitutional authorities, but this book shows that it could look to past Presidents for support. President
s have used force abroad without any legislative authorization at all, and several made the most important strategic decisions without any input from Congress. Lincoln and Roosevelt, for example, resisted or overrode efforts by Congress to interfere with their judgments about the steps necessary to protect the national security. The Emancipation Proclamation stands as a striking example of a presidential decision on the conduct of war -- to free the slaves and undermine the Confederacy's vital labor source -- which was inconsistent with Congress's preferences. Presidents have long exercised the widest discretion over the conduct of war and have fought jealously to defend their prerogatives. Congress, for the most part, has respected presidential discretion, and the times when it has not, as in the War of 1812 and the beginnings of World War II, it has done no better and sometimes much worse than the President. Congress simply does not have the ability to make effective, long-term national security decisions because of the difficulty in organizing 535 legislators and the political incentives that drive them toward short-term, risk-averse thinking.