by John Yoo
Despite low approval ratings, President Bush succeeded in defending many of his war priorities. In Iraq, the administration won continued funding from Congress for the surge of troops, without any strings attached, such as a withdrawal date or a mandated reduction in operations. In the Detainee Treatment Act of 2005 and the Military Commission Act of 2006, Bush won support for the use of military commissions and the exclusion of the Supreme Court from reviewing the detention of terrorists. Congress did set rules for the interrogation of prisoners held by the U.S. armed forces, but it did not extend those guidelines to the CIA. Similarly, President Bush went to Congress to seek support for his warrantless surveillance program. In the Protect America Act, Congress responded by giving its temporary blessing and providing immunity to telecommunications companies that had helped carry out the surveillance after the 9/11 attacks.15
Other exercises of executive power have simply been blown out of proportion. A salient example is the issue of presidential signing statements. In 2006, a media report claimed that President Bush had used signing statements to claim "the authority to disregard more than 750 laws enacted since he took office." The American Bar Association assembled a task force that concluded that such statements were "contrary to the rule of law and our constitutional system of separation of powers." The Senate Judiciary Committee followed with hearings criticizing them as a "grave threat to our constitutional system of checks and balances." These reports would lead a stranger to this land to think that by issuing a statement when signing a bill, even one that provided an interpretation of the law or found parts of it unconstitutional, President Bush had brought down republican government.16
Careful examination of the issue shows that nothing of the sort has happened. Presidents have issued statements to explain their reasons for approving or disapproving a bill, almost from the beginning of the Republic. Jackson's lengthy message explaining his veto of the Bank of the United States was little different in purpose from a signing statement. To be sure, Presidents did not use statements frequently until the twentieth century. Beginning with Truman, Presidents issued statements that they would interpret laws to avoid causing constitutional problems, refuse to obey provisions that they believed violated the Constitution, or explain their preferred interpretation of ambiguous statutory language. By the Clinton administration, an average of between 35 and 60 were issued a year. Many of the statements discuss policy or feature political rhetoric rather than interpret legislation or comment on its constitutionality. It does not appear that courts give these declarations much, if any, weight. A more careful study of the Bush administration's practices finds that it issued signing statements challenging statutory provisions at a rate within the historical norms for postwar Presidents, though it questioned the constitutionality of more provisions per bill.17
Signing statements themselves can present reasonable defenses against legislative encroachments. In many, for example, President Bush objected to laws that required the executive branch to propose legislation to Congress -- most would agree that Article II gives the President the discretion whether to do so. In others, Bush objected to congressional efforts to vest the power to appoint executive branch officers in people or entities outside the Appointments Clause. Sometimes the administration challenged provisions ordering it to take a certain diplomatic position, vote a certain way in an international organization, or limit the use of the armed forces abroad. While Bush received criticism for signing the Military Commission Act with the proviso that he would interpret it consistent with his Commander-in-Chief authority, President Clinton relied on the same ground in refusing to obey a congressional prohibition on placing American troops under foreign commanders. A recent study finds that President Clinton issued signing statements virtually identical in substance, though fewer in number, on all of these issues.18 President Obama has issued signing statements in his first few months in office that continue the Bush practice in form and function, especially in the area of foreign affairs.
Bush's use of signing statements has been exaggerated into a caricature. A desire to spin a story of an out-of-control President has overlooked their modest purposes. Signing statements are not really aimed at the courts, which do not take them into account, or even to Congress, which is not bound by them. Instead, they communicate presidential policy and interpretation to subordinate officers and agencies within the executive branch. Presidents can just as easily reach the same result by issuing a memorandum to cabinet secretaries and agency heads setting out the same instructions, minus the public transparency of a public statement. The President need not even declare that he believes a law violates the Constitution, the very move that stoked the controversy in the first place. As we have seen, the Constitution itself places the responsibility on the President to execute the laws -- and the Constitution is the supreme law. A presidential declaration that he will not enforce acts of Congress that violate the Constitution merely states a truism.
Some argue that the President has an obligation to veto an unconstitutional law, rather than sign it and decline to enforce it. To be true to his oath of office, the argument goes, the President cannot approve an unconstitutional act.19 This argument ignores laws that were enacted before a President assumed office (as with Jefferson and the Alien and Sedition Acts) or laws passed over his veto (as with Nixon and the War Powers Resolution). But even if such a principle applied to bills signed during a President's own administration, it fails to take note of changes in the legislative process. Gone are the days when Congress enacted laws of brevity and conciseness. Congress today enacts massive omnibus legislation that combines provisions on multiple subjects along with spending needed to keep the government open. A President who signs legislation to keep normal functions going cannot thereby have his right to interpret the Constitution taken away. Members of Congress have a parallel obligation not to vote for bills that contain unconstitutional provisions, but they do so anyway for the same reason as the President's -- they cannot vote against omnibus legislation containing vital appropriations. Today, it is not unusual to hear Congressmen declare that if part of a bill violates the Constitution, the Supreme Court should attend to the problems.
President Bush reached for a broad vision of executive power. Whether his claims ultimately have merit depends on whether they were used at the right moment. Our Framers designed the executive branch to be a government always in being that could respond quickly and with vigor to unforeseen emergencies and crises. Presidential power expands to meet them, and withdraws when they are over. During peacetime conditions, when there are few threats to the national security, the constitutional role of the President remains limited, and that of Congress is ascendant. During wartime, those roles are reversed, but that does not mean that the sudden expansion of presidential power in response to emergency ever occurs smoothly. Beginning with President Washington's declaration of neutrality in the European wars, the mobilization of the executive branch to meet crises has fallen under fire as dictatorial and tyrannical.
Two developments have contributed to the modern controversy over executive power. The first is the great expansion of economic and social regulation during the New Deal and postwar period. Critics of presidential power usually raise the specter of a massive executive branch that has broken free of its checks and balances, like a King Kong bursting his chains, but they are often silent when it comes to the changes that produced the massive bureaucracy of the New Deal state. If the executive branch has become a permanent establishment dwarfing Congress and the courts, it is in part because of Congress's delegation of power to the agencies to manage the economy and society. Those who worry about executive power often have no qualms about national education standards, pollution controls, or housing programs. If critics were to enforce the same standards about executive power in its domestic dimension that they would in foreign affairs, they would have to accept a return to a domestic regime of limited government and largely unregulated markets.
On t
he domestic front, the Bush administration's exercise of presidential power followed the path marked by its predecessors. Bush claimed privileges to shield discussions internal to the executive branch from Congress and private litigants, but he was not the first, nor even the most aggressive to do so. Eisenhower claimed a greater scope for secrecy, reaching down to anyone in the executive branch, while Clinton argued that it extended to activities that fell outside his official duties. Bush moved to make his mark on the judiciary by appointing Supreme Court Justices and lower court judges who shared his constitutional philosophy, but again, that made him no different from Presidents since at least Nixon. Bush used his position as Chief Executive and party leader to coordinate with his congressional majorities, but he was only following in the mold of Presidents since Jefferson. Like his predecessors, Bush sought to deepen his control so as to bring coherence and rationality to the administrative state. His exercise of power may have been different in amount, but not in kind.
The second, and sharper, area of controversy involved foreign affairs. President Bush's actions relied on broad claims of presidential power, but again they fell within the precedents set by earlier Presidents. President Bush, for example, terminated the Anti-Ballistic Missile Treaty with the Soviet Union without the approval of the House or the Senate, but Presidents have terminated treaties since at least President Lincoln. When Senator Barry Goldwater sued to block President Carter's decision to end the Mutual Defense Treaty with Taiwan, the federal appeals court in Washington, D.C., vindicated the President, and the Supreme Court refused to reach the merits. (Four Justices agreed that the case posed a political question that lay outside the judicial power.) President Bush declined to apply the Geneva Conventions' protections for prisoners of war to members of al Qaeda and the Taliban captured fighting in Afghanistan. He concluded that al Qaeda was not a signatory to the Conventions and that the Taliban did not meet the standards for lawful combatants, such as fighting in organized units with visible uniforms and arms in the open, while following the laws of war. Presidents have interpreted treaties since President Washington's proclamation of neutrality. President Clinton, for example, claimed that the ABM Treaty remained in existence even after the Soviet Union had collapsed into 15 independent states.20
Most of the opposition to the Bush administration's exercise of its powers focuses even more tightly not just on foreign affairs, but on the war on terrorism. The Framers vested the executive branch with a unitary design and broad authority precisely so it could respond to the demands of war. Structurally, a branch headed by a single person can process information more easily, analyze the situation and make decisions faster, and implement policies decisively and vigorously. In contrast, Congress's large numbers create severe transaction costs that prevent it from organizing and acting quickly, and the courts act slowly and address only issues that arise as a case or controversy under federal law. "Decision, activity, secrecy, dispatch will generally characterize the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number," Hamilton reminds us in Federalist 70, "and in proportion as the number is increased, those qualities will be diminished."21 The Framers vested the President with the executive power and the role of Commander-in-Chief so he could marshal the nation's military with speed and decision to defeat its external foes.
Every President since World War II has consistently argued that the Constitution gives him the right to use force abroad to protect the nation's security and interests. Presidents have consistently refused to obey the War Powers Resolution, and Congress has often recognized the President's right to use force, not just in the 2001 Authorization to Use Military Force, but in its acquiescence to the numerous presidentially led interventions abroad. Even the Youngstown case, much beloved by supporters of congressional authority, does not take away the President's powers abroad. Youngstown held that the regulation of the steel mills in wartime remained within Congress's power to legislate on domestic affairs. It did not address the scope of the President's authority over the armed forces in the theater of war, nor did it address the Commander-in-Chief's power to set military strategy or tactics, direct the military, or gather intelligence. Youngstown even acknowledges that if Congress attempts to limit presidential action, the executive could prevail by relying on "his own constitutional powers minus any constitutional powers of Congress over the matter."22
The Bush administration's claims of executive authority in the war on terrorism fell into the tactical and strategic decisions appropriate to the Commander-in-Chief. Commanders have long set the standards for the capture and treatment of enemy prisoners. The executive branch has played the leading role in the development and enforcement of the laws of armed conflict. The Lincoln administration issued the first code of the laws of war. The Wilson administration found that unrestricted submarine warfare was a casus belli. FDR approved the strategic bombing of Germany and Japan, even when hundreds of thousands of civilians were killed -- a position put on stark display by President Truman's decision to drop the atomic bomb. President Reagan refused to adopt an international agreement extending the Geneva Conventions to irregular fighters because it would have given terrorists the same status as regular troops. While Congress has the power over funding, creation of the military, and the authority to pass laws for the "Government and Regulation of the land and naval Forces," it has never sought to prevent the President from making the critical decisions about the best means to prevail on the battlefield.
Even the Bush administration's domestic pursuit of al Qaeda terrorists, while controversial, followed the example of past Presidents confronted with grave security challenges. The military has detained hundreds of al Qaeda terrorists at Guantanamo Bay without access to civilian courts, and has established military commissions to try dozens of them for war crimes. Bush designated several U.S. citizens and permanent resident aliens as enemy combatants and ordered their detention without criminal trial as well. While not punitive, as is imprisonment in the civilian justice system, the detentions seek to prevent a member of the enemy from returning to the fight. President Bush ordered the warrantless interception of electronic communications involving suspected terrorists coming into or out of the United States. Like detention, the warrantless Terrorist Surveillance Program does not seek information to use in convicting terrorists in court. It only intercepts communications that would allow the intelligence agencies or armed forces to take action to prevent an attack on the United States.
Earlier Presidents used similar means on the home front. President Lincoln detained thousands of citizens behind the Union lines, used military commissions to try suspected Confederate agents, and suspended habeas corpus. When the federal courts today have sought to extend habeas to broader classes, such as non-U.S. citizens held outside the United States at Guantanamo Bay, Congress and the President have joined together to overrule them, sparking yet another round of struggle with the courts.23 FDR used military commissions to try U.S. citizens who had joined the Axis powers, interned 120,000 Japanese-American citizens, and instituted a sweeping surveillance program that intercepted all electronic communications within the nation's borders. This is not to argue that Bush's counterterrorism policies stand out because they reduced civil liberties less than these historical examples. Instead, the record of practice shows that the United States has always had to balance civil liberties and security interests and that in wartime, liberties will be narrowed to give the government broader freedom to win a war. Unless the government is to be prevented from making any adjustment in the trade-off between security and liberty, the executive will be the branch that often must strike that balance in wartime.
The war on terrorism provides a cautionary tale about current proposals to rein in executive power. Despite the executive's constitutional powers, Congress always has the ability to counter the President. Trying to force the President to assume less initiative may make the office more comfortable for the risk-averse, but it may also prevent
the executive branch from rising to the great challenges confronting the nation. After Watergate, Congress embarked on a similar mission by passing a horde of statutes intended to hamstring future Presidents.
Some of the new statutes had little effect, some had a large one. One of those, the Foreign Intelligence Surveillance Act, required that Presidents obtain a warrant from the federal FISA court before they could pursue domestic wiretapping for national security purposes. The courts and the Justice Department read the law to prohibit the sharing of the fruits of such intelligence with domestic law enforcement officials. As American security agencies attempted to track down al Qaeda agents who had entered the country in the summer of 2001, FISA prevented the CIA from informing the FBI about the identities and photographs of some of the 9/11 hijackers already in the country. FISA was passed with the best of intentions, to prevent another Richard Nixon from ever using the intelligence agencies to harass his domestic opponents, but it also blocked the executive branch from taking the swift action necessary to prevent a devastating attack on the American homeland.24
No one wants another Nixon to abuse his powers to attack his political enemies, but the restraints necessary to prevent another Nixon or Andrew Johnson may sap the executive of those unique qualities that allow it to act decisively when the nation's security is at stake. The flexibility necessary for an energetic executive can serve bad as well as good ends. For the bad, our constitutional system seems up to the job. It has adequately handled the abusive Presidents with political resistance or by forcing them from office. While the poor Presidents have cost the nation dearly, Washington, Lincoln, and FDR brought the nation much more benefit, including national survival. If allowing Presidents to exercise their constitutional powers freely risks executive abuse, it also brings with it the promise of flexibility and energy to meet national emergencies and crises.