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

489 Pages·2016·2.23 MB·English

by  John Yoo

CRISIS AND
COMMAND
The History of Executive Power
from George Washington
to George W. Bush
John Yoo
CONTENTS
Introduction
CHAPTER ONE: Beginnings
CHAPTER TWO: Creation
CHAPTER THREE: George Washington
CHAPTER FOUR: Thomas Jefferson
CHAPTER FIVE: Andrew Jackson
CHAPTER SIX: Abraham Lincoln
CHAPTER SEVEN: Franklin D. Roosevelt
CHAPTER EIGHT: The Cold War Presidents
CHAPTER NINE: The Once and Future Presidency
Afterword
Acknowledgments
Endnotes
Bibliography
Index
INTRODUCTION
CRISIS AND COMMAND completes a trilogy on the political, constitutional,
and legal controversies provoked by al Qaeda's September 11, 2001, terrorist
attacks on New York City and Washington, D.C. War acts on executive power
as an accelerant, causing it to burn hotter, brighter, and swifter. It may burn out
of control or it may flame out quickly. The American constitutional system has
struggled from the birth of the Republic to figure out the right balance between
energetic executive power and predictable, normal social activity; and the early
years of the twenty-first century have been no different. The unconventional
nature of the terrorist threat placed unprecedented stress on the Presidency and
its relationship to the other branches of government. Al Qaeda's decentralized
form demanded the reinterpretation of the rules of war, including the legitimate
grounds for war, surveillance, targeting, detention, interrogation, and trial.
I was an official in the Justice Department involved in developing national
security policy in the wake of the September 11 attacks. On the question of
waging war, the President's constitutional authority had historically been
paramount. Nonetheless, within weeks of the al Qaeda attacks, critics emerged
claiming that Congress, rather than the President, should be making policy. In
2005, I wrote The Powers of War and Peace, which explained my view of the
original understanding of the Constitution's foreign affairs power, and applied it
to post-9/11 questions about starting wars, entering treaties, and setting foreign
policy. War by Other Means followed the next year. It explained the logic and
legal authority behind the Bush administration's counterterrorism policies,
though criticizing its political strategies. Both books argued that the Framers
understood the Constitution to give the President the primary direction of
national security decisions, with Congress retaining ample authority to check
executive policy.
Some disagree with this reading of the original understanding. They object
that the Framers' decisions at the end of the eighteenth century should not affect
how we make national security policy at the beginning of the twenty-first. They
argue that the Framers intended Congress to play the predominant role in setting
national security and foreign policy and that legislative action invariably
overrides presidential decision-making. Other critics believe that the original
understanding of the Constitution has little or no application to contemporary
separation-of-power questions. Ideally, they say, Congress should make the
major peacetime policy decisions, the President execute them, and the courts
adjudicate the cases. Both theories race toward the same finish line. Books with
titles like The New Imperial Presidency, The Terror Presidency, or Takeover:
The Return of the Imperial Presidency all proceed from the assumption that the
President has no significant constitutional authority of his own but is bound to
follow Congress's directions, even during war or emergency.
These works, and the contemporary Zeitgeist they reflect, often overlook the
importance of events like the Louisiana Purchase, the Emancipation
Proclamation, or America's early assistance to Great Britain in World War II.
This book explores a factor seldom consulted in debates over executive power
today: history. A single volume cannot comprehensively examine the growth of
executive power throughout our Constitution's 220 years, but it can deepen our
understanding. I trace the genealogy of today's controversies back to the nation's
first chief executive, George Washington, then describe how Thomas Jefferson,
Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt used the powers of
their office in times of crisis. Stephen Skowronek has classified these men as the
most transformative Presidents, the ones who disrupted the existing political
order and replaced it with one of their own making.1 Marc Landy and Sidney
Milkis agree that these five Presidents are the "greatest" for their profound effect
on the American political system of the day.2
This is not a coincidence. These Presidents are considered great precisely
because of their boldness. Some made lasting changes to the political system;
others altered the structure and powers of their office. But this alone cannot
account for their success. Presidents such as Martin Van Buren, William
McKinley, or Woodrow Wilson also wrought noteworthy political changes.
Rather, our greatest Presidents became great by leading the nation through
crises. "[I]f Lincoln had lived in times of peace," Theodore Roosevelt observed,
"no one would have known his name now."3 There is a significant, but
misunderstood, link between the vigorous exertion of executive power and
presidential greatness. By themselves, crises don't produce presidential
excellence -- just look at James Buchanan, Lincoln's predecessor, or Herbert
Hoover, FDR's predecessor. Both responded to emergency -- secession in one
case, depression in the other -- by withdrawing feebly into their shells. Chief
executives can draw upon a deep well of constitutional authority when they act
in the face of peril. Some may respond by bowing to Congress and respecting
the status quo, but that course might perpetuate the very policies that failed in
the first place. The qualities that define the executive -- energy, speed,
decisiveness, and secrecy, among others -- are indispensable in emergency
situations. The ordeals of the nation's founding, the Napoleonic Wars, the Civil
War, or World War II were not overcome without Presidents of the day making
use of the very broadest reach of their constitutional powers.
Some may read this book as a brief for the Bush administration's exercise of
executive authority in the war on terrorism. It is not. It is a book about the
constitutional and institutional history of the Presidency. It is not meant to be as
comprehensive as histories that scour the life and times of a single Chief
Executive.4 I do not attempt to trace the evolution of the Presidency in a single
frame, say, as a political actor, from Washington's patriot king to Teddy
Roosevelt's rhetorical leader to today's campaign-in-being.5 Instead, I seek here
to provide a different perspective: to describe the relationship between the
constitutional authorities of the office, and presidential success as measured by
scholars of the Presidency. I examine how individual Presidents understood and
used their constitutional authorities to deal with challenges, successfully or not.
This book is also written out of respect for Congress as well as the President. I
have had the honor to serve as general counsel of the Senate Judiciary
Committee under the chairmanship of Senator Orrin G. Hatch of Utah, a good
and decent man as well as a steward of the Senate. I have the greatest respect for
the awesome powers of Congress and the ways in which Congress and the
broader political system can check any chief executive. It was Congress that
forced the resignation of Richard Nixon through hearings, political pressure,
spending constraints, and ultimately, the threat of impeachment. Today's critics
of the Presidency underestimate the power of politics to corral any branch of
government that goes too far. They give too much credit to appeals to abstract
notions of constitutional balance to restrain a truly out-of-control President, or
misread active responses to unprecedented challenges as challenges to the
Constitution. The hyperbole in such rhetoric is manifest in overwrought yet
commonplace invocations of "treason" or "tramplings" of the Constitution. Has
the Constitution indeed been trampled on? History provides us with a guide.
Certainly, the fear that a President might abuse power for personal gain or to
maintain his or her position has haunted America from her birth. Executive
power, as the Founding Fathers well knew, always carries the possibility of
dictatorship. In their own day, the great Presidents were all accused of wielding
power tyrannically. Yet, they were not dictators. They used their executive
powers to the benefit of the nation. Once the emergency subsided, presidential
power receded and often went into remission under long periods of
congressional leadership. When chief executives misused their powers, the
political system blocked or eventually ejected the President. No dictator has ever
ruled in the United States, yet critics of contemporary presidential power wish to
work radical change in current practice out of fear of impending dictatorship.
Exercises of presidential power can go badly wrong, of course. Richard Nixon
is the most salient example of presidential authority used for ill. He ordered the
covert surveillance of political opponents, the infiltration of anti-war groups, and
the harassment of critics -- all on grounds of national security that were strained
at best, and criminally deceitful at worst. He used executive privilege to conceal
information from criminal investigators in the Watergate scandal, fired special
Justice Department prosecutors, and ultimately resigned before his almost
certain impeachment by the House of Representatives. After he left office,
Nixon defended his actions in a television interview with David Frost, claiming
in a damning over-generalization: "[W]hen the president does it, that means that
it is not illegal."6
The broad exercise of presidential power is not confined to the twentieth or
twenty-first centuries but represents the necessary expansion over 200 years of
the constitutional powers of the office. It started with the Revolutionaries' effort
to avoid executives who might become monarchs. By the time of the
Constitution's ratification, however, the Framers' views had evolved in favor of
an independent, forceful President. The Constitution devotes more of its
attention to listing the powers of Congress, but it deliberately paints the
President's powers in broad strokes. Our greatest Presidents, from George
Washington on, have filled in these sketchy outlines with deeds, deeds that met
national challenges, both foreign and domestic. Presidential power has grown
with the nation's power, both in our constitutional law and in prestige and
substance.
These conclusions are at odds with the prevailing scholarly accounts of the
White House. Richard Neustadt, author of the most influential book on the
Presidency of the last half-century, views the story of modern chief executives as
a story of "presidential weakness."7 Presidential power, Neustadt famously
argued, is "the power to persuade." After examining Truman's firing of General
Douglas MacArthur and his seizure of the steel mills during the Korean War,
and Eisenhower's use of troops to desegregate the Little Rock schools, Neustadt
concluded that resorting to formal presidential orders was "suggestive less of
mastery than failure."8 While Neustadt conceded that formal constitutional
authority was part of a President's personal influence, he made clear that "the
probabilities of power do not derive from the literary theory of the Constitution."
Scholars following Neustadt find presidential power in characteristics such as
communicative and political skills, organizational ability, vision, cognitive style,
and emotional intelligence.9 Neustadt would recommend that Presidents rely
upon these skills and avoid any invocation of their constitutional powers.
A long-standing tradition in political science views executive power as a
problem, not a solution. Woodrow Wilson, while still a young scholar, argued
that the Framers had designed a defective Constitution. In 1885, he famously
pressed for "congressional government" in which the President would be, in
effect, a prime minister, at the head of the executive branch and the majority
party in Congress. Wilson believed this the only way to coordinate both
branches of government and overcome the debilitating effects of the separation
of powers.10 But by 1907, Wilson had changed his mind, putting his hopes in a
President who would act as a powerful leader in national affairs.11 Professor
Clinton Rossiter, author of the classic The American Presidency, identified
several duties incumbent on the chief executive, from "Protector of the Peace" to
"Manager of Prosperity."12 Rossiter worried that if the President did not use all
of his formal and informal powers to lead the nation, the government would
become "weak and disorganized." This view, echoed most recently by James
MacGregor Burns, argues that the Constitution's original separation of powers
divided the executive from the legislative far too well, creating paralyzed
government as a result.13 Presidential government, Burns observed, would
"strengthen democratic procedures" and help achieve "modern liberal democratic
goals."
For others, the problem is the reverse: the Constitution checks presidential
power too little, not too much. After abuses of executive authority under
Kennedy, Johnson, and Nixon, scholars argued that the political checks on
presidential behavior had grown too weak and that a return to constitutional
principles was necessary. Arthur Schlesinger, Jr., for example, who had praised
the exercise of presidential power in his celebrated biography of Andrew
Jackson, then as court historian to Kennedy, changed his tune after Vietnam. In
The Imperial Presidency, he claimed that a "shift in the constitutional balance
[of power]" between Congress and the President had occurred, one marked by
"the appropriation by the Presidency, and particularly by the contemporary
Presidency, of powers reserved by the Constitution and by long historical
practice to Congress."14Claims that the Presidency has violated the
Constitution's original design continues to characterize the work of some of the
nation's leading law professors, such as Bruce Ackerman, John Hart Ely,
Michael Glennon, and Harold Koh.
Both approaches assume that the Framers of 1787 designed the original
Presidency to be a weak office, and that circumstances have expanded executive
power far beyond its intended limits. One side welcomes this development; the
other seeks to return to an eighteenth-century version of the Presidency. I believe
that both sets of scholars underestimate the Framers' intentional desire to create a
Presidency with broad, rather open-ended powers in specific areas, such as
foreign affairs and national security. They meant to leave these boundaries