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

by John Yoo

  ACKNOWLEDGMENTS

  THIS BOOK GREW out of an effort to reconcile personal experience with received teachings. As an immigrant from South Korea, I have long been conscious of President Harry Truman's use of his authority as Commander-in-Chief at the start of the 1950 Korean War. Were it not for his decision to send American troops immediately, I very well might have grown up in a real totalitarian dictatorship. The difference is strikingly illustrated by the satellite imagery of the thirty-eighth parallel at night, with the brilliantly lit cities of the South contrasting with the utter darkness of the North. Presidents throughout the Cold War pursued similar policies regardless of party, often risking their standing in the opinion polls steadily to contain the Soviet Union and to protect the Free World.

  The benefits of vigorous presidential action did not accord with the conventional wisdom toward executive authority, at least as revealed at Harvard College in the 1980s or Yale Law School in the 1990s. In the classrooms of those days, it was de rigueur to criticize the Reagan and Bush administrations' exercise of their constitutional powers, arguments that became muted once President Clinton assumed office, but returned with a vengeance during the second Bush administration. For me, it was at least worth considering whether the modern Presidency had achieved better outcomes for the nation, and for the liberty of millions around the world. As I studied and thought more, it seemed to me that the Presidency of the twenty-first century falls well within the boundaries of its constitutional origins and political history and tradition than scholars commonly believe today. This book is the product of my thinking about the Presidency first sparked in my student days.

  I have accumulated a number of intellectual debts in the course of writing this book. My greatest thanks go to colleagues and friends who have read and commented on some or all of the manuscript: Carlos Bea, Joseph Bessette, Jesse Choper, Robert Delahunty, Dan Farber, Mark Killenbeck, Sai Prakash, Dean Reuter, Ron Rotunda, Gary Schmitt, and Michael Uhlmann. I have also benefited from the excellent research assistance of Janet Galeria, Peter Gerra, Ben Peterson, Andrew Verriere, and Claire Yan. Dean Christopher Edley, Jr., provided financial support for summer research, and Dean John Eastman invited me to Chapman Law School for a semester when I put the finishing touches on the manuscript. Lynn Chu has been not just an agent, but a great editor and collaborator as well. Don Fehr of Kaplan has been a source of sage advice and editorial judgment.

  I have been blessed to have the support of my wonderful parents, Drs. John Hyun Soo Yoo and Sook Hee Lee Yoo, and brother, Dr. Christopher J. Yoo. It has been my equally good fortune to spend the years since college with my wife, Elsa Arnett. She has combined the smarts, support, and strength for which every writer (or husband) could wish. This book, once again, is dedicated to her.

  ENDNOTES

  INTRODUCTION

  1 Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to George Bush (1993).

  2 Marc Landy & Sidney M. Milkis, Presidential Greatness (2000).

  3 John M. Cooper, The Warrior and the Priest: Woodrow Wilson and Theodore Roosevelt 118 (1983).

  4 See, e.g., Sidney Milkis & Michael Nelson, The American Presidency: Origins and Development, 1776-2007 (5th ed. 2007); and Michael A. Genovese, The Power of the American Presidency: 1789-2000 (2000).

  5 For excellent examples of such works (representing several different perspectives on the Presidency) that have been helpful to this study, see James D. Barber, Presidential Character: Predicting Performance in the White House (4 th ed. 1992); James W. Caesar, Presidential Selection: Theory and Development (1979); Thomas E. Cronin, The Paradoxes of the American Presidency (2003); Fred I. Greenstein, The Presidential Difference: Leadership Style from FDR to George W. Bush (2004); Sidney M. Milkis, The President and the Parties: The Transformation of the American Party System since the New Deal (1993); Michael Nelson, The Presidency and the Political System; Skowronek, supra note 1; and Jeffrey K. Tulis, The Rhetorical Presidency (1988).

  6 Transcript of the third Nixon-Frost interview, N.Y. Times, May 20, 1977, p. A16.

  7 Richard E. Neustadt, Presidential Power from FDR to Carter xi (1980 ed.).

  8 Ibid. at 21.

  9 Greenstein, supra note 5.

  10 Woodrow Wilson, Congressional Government: A Study in American Politics (1885).

  11 Woodrow Wilson, Constitutional Government (1907).

  12 Clinton Rossiter, The American Presidency (1956).

  13 James MacGregor Burns, The Deadlock of Democracy 6 (1963); and James MacGregor Burns, Presidential Government (1965).

  14 Arthur M. Schlesinger, Jr., The Imperial Presidency viii (1973).

  15 Alexis de Tocqueville, Democracy in America, v. 1, ch. 8 (Henry Reeve trans., 1835). I am grateful to Sandy Muir for pointing me to Tocqueville's thought on this issue.

  16 Presidential Leadership: Rating the Best and the Worst in the White House 11 (James Taranto & Leonard Leo eds., 2005).

  17 Dames & Moore v. Regan, 453 U.S. 654, 661 (1981).

  18 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring). For views on the power of precedent in constitutional decision-making by courts, see David A. Strauss, Common Law Constitutional Interpretation, 63 University of Chicago Law Review 877 (1996); and Michael J. Gerhardt, The Power of Precedent (2008).

  CHAPTER 1: BEGINNINGS

  1 Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 245 (1996).

  2 See, e.g., Bruce Ackerman, Congressional Leadership is Necessary and Proper, Los Angeles Times, Apr. 2, 2007, at www.latimes.com/news/opinion/la-op-dustup2apr02,0,3065343.story?coll=la-opinion-center.

  3 Federalist No. 70, at 471 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

  4 See Bernard Bailyn, Intellectual Origins of the American Revolution 31 (1967); Forrest McDonald, The American Presidency: An Intellectual History 4-5 (1994); and Gordon Wood, The Creation of the American Republic 1776-1789, at 10-18 (1969).

  5 J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975).

  6 Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Modern Executive Power 121-149 (1989).

  7 Ibid. at 135.

  8 Ibid. at 142.

  9 Federalist No. 70, at 472 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

  10 See, e.g., McDonald, supra note 4, at 46.

  11 John Locke, Two Treatises of Government SS145 (J. W. Gough ed., 3d ed. 1966) (1690). For Locke's development of the separation of powers and the definition of the executive power, see M. J. C. Vile, Constitutionalism and the Separation of Powers 60-61 (1967); and W. B. Gwyn, The Meaning of the Separation of Powers: An Analysis of the Doctrine from Its Origin to the Adoption of the United States Constitution 82-99 (1965).

  12 Locke, supra note 11, at SS 146.

  13 Ibid. at SS 147.

  14 Ibid. at SS 160.

  15 Charles Louis de Secondat, Baron Montesquieu, Spirit of the Laws, bk. 11, ch. 6 (Thomas Nugent trans., 1949) (1748). On Montesquieu's importance in the colonies, see Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 80 (1985).

  16 Donald S. Lutz, The Origins of American Constitutionalism 145 (1988).

  17 1 William Blackstone, Commentaries on the Laws of England 160.

  18 Ibid. at 249-50.

  19 Ibid. at 250.

  20 Ibid. at 244.

  21 McDonald, supra note 4, at 30-31.

  22 Bailyn, supra note 4, at 34-54.

  23 See ibid. at 36; see also Introduction to Cato's Letters (Ronald Hamowy ed., 1995) (1722).

  24 See, e.g., Arthur Bestor, Separation of Powers in the Domain of Foreign Affairs: The Intent of the Constitution Historically Examined, 5 Seton Hall Law Review 527, 568 (1974); and Raoul Berger, War-Making by the President, 121 University of Pennsylvania Law Review 29, 33 (1972).

  25 Andrew Rudalevige, The New Imperial Presidency 19 (2005).
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  26 John Marshall, "A Friend of the Constitution Essays," reprinted in John Marshall's Defense of McCulloch v. Maryland 159 (Gerald Gunther ed., 1969); see also Akhil R. Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Columbia Law Review 457, 465 (1994).

  27 On this point, see Jerrilyn Marston, King & Congress 297-309 (1987); Jennings B. Sanders, Evolution of Executive Departments of the Continental Congress 3 (1935); and Charles C. Thach, Jr., The Creation of the Presidency, 1775-1789, at 576 (1923).

  28 Articles of Confederation art. IX (1777).

  29 1 Works of Alexander Hamilton 209 (Henry Cabot Lodge ed., 1904).

  30 For discussion of the problems in American foreign policy during the critical period, see John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, at 73-79 (2005); McDonald, supra note 4, at 143-53; and Frederick Marks, Independence on Trial: Foreign Affairs and the Making of the Constitution (1986).

  31 Wood, supra note 4, at 138.

  32 Pa. Const. SS XIX (1776), reprinted in 5 Francis N. Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies 3086-87 (1909).

  33 Thach, supra note 27, at 29.

  34 Thomas Jefferson, First Draft of the Virginia Constitution, art. II (1776), reprinted in 1 The Papers of Thomas Jefferson 337, 341 (Julian P. Boyd ed., 1950).

  35 The Constitution as Adopted by the Convention (1776), reprinted in 1 Ibid. at 377, 380. The Virginia constitution forbade the executive from exercising "any power or prerogative by virtue of any Law, statute, or Custom, of England." Va. Const. para. 9 (1776), reprinted in 7 Thorpe, supra note 32, at 3816-17.

  36 John Adams, Thoughts on Government (1776), reprinted in 4 Papers of John Adams 65, 89 (Robert J. Taylor ed., 1979).

  37 See Thach, supra note 27, at 34-35.

  38 N.Y. Const. arts. VIII & XVII (1777), reprinted in 5 Thorpe, supra note 32, at 2632. Although it did not establish a privy council, the New York constitution created two more specialized councils: the Council of Revision, which exercised the veto power, and the Council of Appointment, which advised on appointments. N.Y. Const. arts. III, XXIII (1777), reprinted in 5 Ibid. at 2628, 2633-34.

  39 During the Revolution, George Clinton, the state's first governor, sent the militia on his sole authority to reinforce General Gates's campaign against British forces. He later notified the legislature of the move in his first inaugural address. Throughout the war, Clinton (himself a military officer) worked closely with General Washington and his subordinates to coordinate operations against the British. Although it expressed its views when appropriating funds for the war effort, the legislature generally obeyed Clinton's wishes. See E. Wilder Spaulding, His Excellency George Clinton: Critic of the Constitution 95-98, 114-18 (1938).

  40 Thach, supra note 27, at 37.

  41 See Clinton Rossiter, 1787: The Grand Convention 59, 65 (1966); and Thach, supra note 27, at 34-38.

  42 Federalist No. 26, at 167 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

  43 Thach, supra note 27, at 43.

  44 2 The Records of the Federal Convention of 1787, at 35 (Max Farrand ed., 1911) (hereinafter "Farrand, Records").

  45 The important document revealing the Framers' thinking on the problem of state legislatures is Vices of the Political System of the United States (Apr. 1787), reprinted in 9 Papers of James Madison 349 (Robert A. Rutland et al. eds., 1975). See also Rakove, supra note 1, at 39-43; Charles F. Hobson, The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government, 36 Wm. & Mary Q. 215, 223-25 (1979) (discussing Madison's disillusionment with "turbulent majorities who ruled the state legislatures"). In examining Madison's thoughts during the Framing Period, I also have relied upon Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (1996); Drew R. McCoy, The Last of the Fathers: James Madison and the Republican Legacy (1989); and William Lee Miller, The Business of May Next: James Madison and the Founding (1992).

  46 The Essex Result, 1778, in The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, at 324-65 (Oscar Handlin & Mary Handlin eds., 1966).

  47 Wood, supra note 4, at 434.

  48 Ibid. at 446-53.

  49 Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era 271 (1980).

  CHAPTER 2: CREATION

  1 1 The Records of the Federal Convention of 1787, at 65 (Max Farrand ed., 1911) (hereinafter "Farrand, Records").

  2 Ibid. at 20-21.

  3 Ibid.

  4 Charles Thach, The Creation of the American Presidency, 1775-1789: A Study in Constitutional History 85 (1923).

  5 1 Farrand, Records, supra note 1, at 66.

  6 Ibid. at 65.

  7 Ibid.

  8 Ibid. at 65-66. Oddly, the notes of Rufus King of New York show Madison, rather than Pinckney or Wilson, raising the issue. King records Madison as saying that "executive powers ex vi termini, do not include the Rights of war & peace &c. but the powers shd. be confined and defined." Ibid. at 70.

  9 Ibid. at 64-65; see also Ibid. at 65 (comments of John Rutledge); Ibid. at 65-66 (comments of James Wilson).

  10 Ibid. at 244.

  11 Ibid.

  12 As James Wilson declared on June 26, the "Senate will probably be the depositary of the powers concerning" relations "to foreign nations" because of senators' longer terms in office. 1 Ibid. at 426. See also John C. Yoo, The Judicial Safeguards of Federalism, 70 Southern California Law Review 1311, 1366-74 (1997) (discussing dual role of the Senate).

  13 2 Farrand, Records, supra note 1, at 56-57.

  14 2 Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 261-62 (1996).

  15 2 Farrand, Records, supra note 1, at 171-72.

  16 2 Ibid. at 300-01.

  17 2 Ibid. at 299-300.

  18 2 Ibid. at 318.

  19 2 Ibid. at 319.

  20 Ibid.

  21 See John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, at 149-52 (2005). For contrary views, see Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by "Declare War," 93 Cornell Law Review 45 (2007); and Michael Ramsey, Textualism and War Powers, 69 University of Chicago Law Review 1543 (2002). For my responses, see Robert J. Delahunty & John Yoo, Making War, 93 Cornell Law Review 123 (2007); John Yoo, War and the Constitutional Text, 69 University of Chicago Law Review 1639 (2002).

  22 Articles of Confederation art. IX (1777).

  23 2 Farrand, Records, supra note 1, at 392.

  24 Jack N. Rakove, Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study, 1 Perspectives in American History 233, 240-41 (1984).

  25 See Yoo, Powers of War and Peace, supra note 21, at 182-214; and Saikrishna Prakash & Michael Ramsey, The Executive Power over Foreign Affairs, 111 Yale Law Journal 231 (2001). For a contrary view, see, e.g., Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Michigan Law Review 545, 637-41 (2004); Harold H. Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair (1990); and Michael Glennon, Constitutional Diplomacy (1990).

  26 See, e.g., James W. Ceaser, Presidential Selection: Theory and Development 43 (1979).

  27 Federalist No. 68, at 460-61 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

  28 2 Farrand, Records, supra note 1, at 540.

  29 Federalist No. 68, at 460 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

  30 1 Farrand, Records, supra note 1, at 29.

  31 2 Farrand, Records, supra note 1, at 540-41.

  32 Clinton Rossiter, The American Presidency 67 (1956).

  33 Edward S. Corwin, The President: Office and Powers, 1787-1984, at 201 (Randall W. Bland et al. eds., 1984).

  34 2 Farrand, Records, supra note 1
, at 648.

  35 See Forrest McDonald: The American Presidency: An Intellectual History 181 (1994).

  36 See, e.g., Arthur Schlesinger, Jr., The Imperial Presidency 1-12 (1973); and Michael Genovese, The Power of the American Presidency, 1789-2000, at 12-13 (2001).

  37 See, e.g., Donald L. Robinson, "To the Best of My Ability": The Presidency and the Constitution 87-95 (1987); and Thach, supra note 4, at 139-40.

  38 For excellent accounts of the political events and leaders of the ratification process, see Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1986); Forrest McDonald, We the People: The Economic Origins of the Constitution (1991); and Forrest McDonald, E Pluribus Unum (1979).

  39 See Glenn Phelps, George Washington and American Constitutionalism (1994).

  40 3 Farrand, Records, supra note 1, at 301-02.

  41 George Mason, Objections to the Constitution (Oct. 7, 1787), reprinted in 13 Documentary History of the Ratification of the Constitution 349 (John P. Kaminski & Gaspare J. Saladino eds., 1986) (hereinafter "Documentary History"). Mason's objections were known to have been published in at least 27 newspapers from Maine to South Carolina and served as a sounding board for numerous Federalist and Anti-Federalist essays. See Ibid. at 348. As the influential Anti-Federalist "Federal Farmer" complained before the start of the Pennsylvania ratifying convention, "[I]n this senate are lodged legislative, executive and judicial powers..." Letter III from the Federal Farmer (Oct. 10, 1787), reprinted in 14 Ibid. at 32. The Letters from the Federal Farmer were published as 40-page pamphlets for sale, rather than as articles in newspapers. Apparently thousands of copies were sold throughout the states, and they appeared in Pennsylvania, New York, and Massachusetts before their ratifying conventions concluded. See John P. Kaminski & Gaspare J. Saladino, Editors' Note to Ibid. at 14-18. They are considered to be "one of the most significant publications of the ratification debate." Ibid. at 14.