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

Page 44

by John Yoo


  RETURNING TO FIRST THINGS

  BUSH'S REPUTATION WILL depend on whether future historians judge his exercise of presidential power to have been justified by the circumstances. If the September 11, 2001, attacks marked the emergence of a serious foreign threat to the nation's security, the invocation of broad presidential powers will have been appropriate. Presidents like Lincoln and FDR may have gone too far at times, but we forgive them their trespasses because they led us through the Civil War and World War II. If it turns out that the United States had overreacted to what was essentially an isolated event, the exercise of presidential power will prove to have been unnecessary and counterproductive. The difficulty in reaching a judgment now is that we are still living through the period of threat, and we cannot judge ex post whether the long-term reorientation of national security powers was necessary to meet it. This is not to argue that Bush is destined to rank among the great Presidents or even those considered above-average. It means that only when we have the benefit of distance will we know whether Bush's aggressive use of executive authority was too much, too little, or just right.

  Understanding the contingency of our current circumstances brings us back to where we began, the purpose of the executive. As originally conceived, the need for the executive arose to respond to unforeseen dangers, unpredictable circumstances, and emergencies. It was given the virtues of speed, secrecy, vigor, and decisiveness to most effectively marshal society's resources in a time of crisis. The executive could correct for the instability, fractiousness, and inability to organize and decide (caused by what we today think of as transaction costs of a republican legislature) under time pressure. If the circumstances demand, the executive can even go beyond the standing laws in order to meet a greater threat to the nation's security.

  It remains an open question whether the Constitution incorporated this prerogative. Hamilton believed that Article II's vesting of the executive power in the President necessarily included the ability to meet any challenge. To him, this power ought to "exist without limitation because" the "circumstances that endanger the safety of nations are infinite." There was no prerogative in the Lockean mold, only a President with open-ended powers in time of emergency. This broad conception of the executive underpinned the broader Hamiltonian program. A President of broad powers would guide the national government by developing proposals, managing legislation, and vigorously enforcing the law and setting foreign policy. In contrast, Jefferson believed that the President's ability to access the prerogative existed independent of the Constitution. To him, the natural right of self-preservation allowed the President to act beyond the Constitution itself when defending the nation. Whereas Locke believed that the executive would have to appeal to the heavens in the event of an exercise of the prerogative, Jefferson believed that an appeal to the nation was in order.

  The prerogative allowed Jefferson to keep his devotion to a strict interpretation of the Constitution. If the prerogative could serve as a safety valve when emergency placed the government under stress, the Constitution would need no stretching. The government's powers would remain limited, rather than permanently extended, and individual liberty and hopefully state sovereignty would be preserved. The process for confirming the executive's use of the prerogative, an appeal to the people, advanced Jefferson's agenda to make the President the democratic representative of the nation as a whole. Jefferson did not believe that the approval of Congress or the courts alone was necessary, except insofar as they represented the will of the people.

  History suggests that Hamilton had the better argument. The prerogative faces serious, perhaps fatal problems, chief of which is that it requires the executive to violate the Constitution. If the people bless executive lawbreaking, then they undermine the very purpose of the Constitution to bind future majorities. Although faced with the most serious threats to the nation's security, Lincoln and FDR did not claim a right to act outside the Constitution. While Lincoln suggested on several occasions that it might be necessary to violate the Constitution to save the nation, he never invoked the prerogative. In fact, he carefully argued that his every action, from using force against secession to the Emancipation Proclamation, was justified by his constitutional authorities. Roosevelt, too, never claimed the prerogative, and justified his actions by his authority as Commander-in-Chief. By the Cold War, the debate seemed to be over -- the Constitution accommodated the need to respond to extraordinary events through the President's executive power.

  At first glance, it might appear that this understanding of the Constitution could only work to the benefit of the President. It allows him to claim a reservoir of power to meet any serious threat to the national security. But subordinating the prerogative to the law may have come with costs as well -- it has raised public expectations of the President to the point where no mere mortal can satisfy them. If the President has the constitutional authority to respond to any emergency, then the failure of the government to meet the latest national problem must be his fault.

  A second effect may be the unwillingness of Presidents since FDR to challenge the Supreme Court. Presidents no longer claim an independent right to interpret the Constitution differently from the judiciary, giving up the inheritance of Jefferson, Jackson, Lincoln, and Roosevelt. There are understandable political reasons for this, but perhaps a deeper constitutional explanation lies in presidential adoption of the Hamiltonian theory of the executive. If the President accesses extraordinary power from the Constitution, he may seek judicial approval in order to address concerns that he is interpreting the Constitution solely for his own benefit. It is not clear whether this bargain is to the long-term benefit of the institution; abdicating the right to interpret the Constitution, in light of the President's obligation to enforce the laws, ultimately places the definition of his duties and powers solely in the hands of another branch. Presidents may have only won themselves the freedom to act in the short term, but they have left the long-term success in the hands of others.

  The fundamental question of the prerogative lends presidential power a tragic quality. Due to the Constitution's design, the political system has great difficulty responding to unforeseen circumstances, fast-moving events, or decisions that require technical expertise or run high political risks. It will fall to the President to act at these times, which most often arise where the nation's foreign relations and national security are at stake. In exercising their constitutional powers, Presidents by definition act against the web of congressional statutes, court decisions, agency regulations, and interest groups that make up the political status quo. Invocation of executive authority is guaranteed to trigger a sharp response by the supporters of the governing regime.

  In their own time, our greatest Presidents have been the subject of terrible attacks, ranging from accusations of personal immorality to the formation of opposition political parties. Nevertheless, our greatest Presidents have had to act because they have judged their actions necessary to benefit the nation or protect it from harm. Presidential power takes on a tragic dimension when our Chief Executives exercise their constitutional powers knowing that it could lead to their political ruin or damage their historical reputations. But as we have seen, presidential power moves in cycles, change is no doubt certain, and it is change that can bring out greatness in our Presidents.

  AFTERWORD

  "YOU NEVER WANT a serious crisis to go to waste," Rahm Emanuel, the new White House Chief of Staff, said in the early months of the Obama administration.1 Barack Obama's election as America's forty-third President was historic for many reasons. Obama entered office amid what may be the worst economic recession since the Great Depression. Gross domestic product estimates nose-dived a stunning 6.3 percent in the fourth quarter of 2008 and fell another 5.7 percent in the first three months of 2009.2 The stock market fell about one-third in 2008, destroying trillions in private wealth.3 The unemployment rate leapt from 4.6 percent to 7.1 percent in 2008 -- 2.7 million Americans lost their jobs, Genera
l Motors and Chrysler went bankrupt, while industrials like Alcoa and DuPont announced mass layoffs. Unemployment continued to rise after the inauguration, continuing upward to more than 9 percent by the middle of 2009.4Only the recessions of 1974-75 and 1982-83 threw a higher fraction of postwar Americans out of work.5 Obama's assumption of office in the midst of trying economic times recalled the transitions between Hoover and FDR and between Carter and Reagan.

  Foreign dangers also greeted the new President. Obama took the oath of office while the nation fought wars in Iraq and Afghanistan. Al Qaeda, which, along with its Taliban allies, continues to destabilize nuclear-armed Pakistan, remains a threat.6 North Korea, the most brutal totalitarian dictatorship on the planet, successfully tested a nuclear weapon and continues its quest for a long-range ballistic missile capable of reaching the United States.7 And Iran, another consistent foe of the United States, continued its own efforts to acquire nuclear weapons and ballistic missile technology in defiance of international sanctions.8 The United States transferred power between the two major political parties during the Cold War, but it did not elect new regimes during any previous "hot" war except for the elections of Eisenhower during the Korean War and Nixon during the Vietnam conflict.

  But as Emanuel's quip recognizes, crisis presents opportunity. Obama is the first African American elected to the nation's highest office, giving many hope of a post-racial future. His election might also portend, in the view of some, one of those rare realignments in American politics that have accompanied the elections of several of the great Presidents studied in this book -- Washington, Jefferson, Jackson, Lincoln, FDR, and Reagan. Not only did Obama win the 2008 election decisively, by 52-46 percent of the popular vote and 365-173 in the Electoral College, but Democrats picked up 6 seats in the Senate and 20 in the House of Representatives. After the Minnesota Supreme Court declared Al Franken the winner of a Minnesota Senate seat in June 2009, Democrats gained a filibuster-proof majority in the Senate, in addition to their already secure 254-173 majority in the House.9

  Obama, however, has a difficult course to chart. While he and his party won large majorities, he must navigate between overreaching and timidity. Americans of all stripes celebrated that the United States had elected the first African American to the Presidency. But Obama should resist the temptation to view his victory as a fundamental realignment of the political system. Obama is only the second Democratic presidential candidate to win more than 51 percent of the vote since FDR in 1944, and the first since Lyndon Johnson's landslide (Carter won in 1976 with only 50.1 percent). One of the Electoral College's effects is to magnify the political legitimacy of the winner beyond that bestowed by the popular vote alone. For example, even though he never won a popular majority, Bill Clinton won the 1992 election by 370 electoral votes to 168 for President George H. W. Bush, and four years later he won 379-159 over Senator Bob Dole.10

  Realignments take more than a victory at the polls; they only occur after a critical election that represents a sea change in the nation's politics. Only two have occurred in the twentieth century: the elections of FDR in 1932 and Ronald Reagan in 1980. FDR's election rejected the laissez-faire philosophy of the Republican Party that had dominated politics since the Civil War. The 1932 realignment introduced the liberal New Deal state at home and an interventionist foreign policy abroad. The Reagan vote signaled skepticism of activist government, the rise of free market economics, and a focus on tax cuts, but maintained a muscular approach to foreign affairs. The only other realignments that scholars can agree upon occurred in 1800, 1828, and 1860.11

  Misreading an electoral realignment can cause a President to over-reach without sufficient political support. FDR thought the results of the 1932 landslide justified his efforts to pack the Supreme Court and to challenge incumbent Southern senators in the midterm elections. The New Deal stalled, and the economy would not recover until World War II. President Nixon believed that he represented a silent majority against a hostile, liberal Congress; he mistakenly turned to executive authority against his domestic political opposition. More recently, President Clinton read his 1992 election as a mandate to pursue higher taxes and a national health care plan that proved deeply unpopular, sparking the Republican takeover of Congress in 1994.

  Current economic woes have brought comparisons with the Great Depression. FDR presents a worthy model of a Presidency more institutionally independent of Congress and more liberated from the political parties than ever before. Using every constitutional authority of the Presidency, FDR brought unprecedented leadership to the legislative process and led the nation through World War II. But Obama may make a fundamental mistake if he believes that he enjoys a mandate like FDR's. We still live in the era of Reagan -- Obama himself campaigned on a platform of tax cuts and deficit reduction.12 Any regulation of the financial system will be driven by a panicked response to the collapse of the credit markets, not a new philosophical dedication to an activist state. Obama may propose new spending on infrastructure, but only to stimulate the economy out of a recession, not because the American people have a newfound love of bigger federal government. Obama asked for a massive stimulus program in the first weeks after taking office "not because I believe in bigger government -- I don't."13

  To take just one sign that the election may not have ushered in a new political consensus, California voted for Obama by an amazing 61-37 percent.14 But the bluest of blue states also prohibited samesex marriage by 5 percent, enacted a crime victims' rights initiative by 7 percent, and defeated a proposal to limit minors' free access to abortions by only 4 percent.15 Obama himself opposed gay marriage during the campaign16 and called for the Supreme Court to overrule its decision banning the death penalty for child rapists.17

  Obama would be better served by moving swiftly to cure the recession and then focus on moderate, bipartisan policies in areas such as education, spending, and entitlement reform. He might even pick a fight or two with a Congress that moves too far and too fast to nationalize health care or interfere with the free market. His picks of Hillary Clinton for Secretary of State and General James Jones as National Security Adviser, along with his decision to keep Robert Gates as Secretary of Defense, signal that he sees the virtues of a pragmatic foreign policy. Drawing down American forces in Iraq on the same timetable set by the Bush administration, and even increasing combat forces in Afghanistan, suggests that Obama intends no radical departures from national policy in these vital arenas.18 While the new President has made diplomatic overtures to Iran and North Korea, these nations have shown no long-term desire to reach a permanent settlement of tensions with the United States.19 If his feelers are rebuffed, Obama may well have to pursue the same policies as his predecessors toward these rogue nations. The realities of international power politics do not change on the timetable of American elections.

  While avoiding the Scylla of overconfidence in his mandate, Obama almost must skirt the Charybdis of Congress. His victory over Hillary Clinton in the Democratic primaries raised the possibility that he might be beholden to congressional leaders, many of whom have decades more experience in Washington. One of the least understood aspects of the Democrats' primary system was the extraordinary role of the "superdelegates." Neither Obama nor Clinton could win their party's nomination through the allocation of delegates by direct election, because 795 superdelegates, all party insiders, held votes at the convention, far more than any one state. The important Pennsylvania primary on April 22, 2008, for instance, had only 158 delegates at stake.20 Due to the closeness of the popular vote, the real battlefield in the Clinton-Obama contest moved from the voting booth to the superdelegates.

  Democratic primary reforms in 1982 gave superdelegates about 20 percent of convention votes -- precisely so that party graybeards could stop a popular, but politically extreme, candidate from seizing the nomination.21 The Democrats deliberately rejiggered the rules to head off insurgent candidates like a George McGovern or a Jimmy Carter who might be crushed in the
general election. Congressmen and other party leaders have more than twice the votes of the richest state prize, California.22 If the popular vote is close, as it was in 2008, the superdelegate rules effectively give congressional incumbents a veto over the nomination.

  The Framers did not envision this delegate dissonance. As we have seen, they believed that letting Congress choose the President was a dreadful idea. Without direct election by the people, the executive would lose its independence and vigor and become a mere servant of the legislature. They had the record of revolutionary America to go on. Recall Gouverneur Morris's explanation: if Congress picked the President, he "will not be independent of it; and if not independent, usurpation and tyranny on the part of the Legislature will be the consequence." Choosing the President would result from the "work of intrigue, of cabal, and of faction."23 After weeks of debate, the Framers vested the Presidency with its own base of popular support by establishing a national election, so the President could represent the views of the entire people, not the wishes of Congress.

  They kept the same rule when considering presidential reelection. Alexander Hamilton wrote in Federalist 68 "that the executive should be independent for his continuance in office on all, but the people themselves," for otherwise, the President might "be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence."24 The Framers were deeply concerned that a President chosen by Congress would keep his eye only on the happiness of legislators, turning our government into a parliamentary system like those of Europe today.

 

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