CRISIS AND COMMAND.

The History of Executive Power from George Washington to George W. Bush.

by John Yoo.

INTRODUCTION.

CRISIS AND COMMAND completes a trilogy on the political, const.i.tutional, 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 const.i.tutional 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. completes a trilogy on the political, const.i.tutional, 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 const.i.tutional 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 const.i.tutional 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 The Powers of War and Peace, which explained my view of the original understanding of the Const.i.tution'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 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 Const.i.tution to give the President the primary direction of national security decisions, with Congress retaining ample authority to check executive policy. 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 Const.i.tution 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 Const.i.tution 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 t.i.tles like The New Imperial Presidency, The Terror Presidency The New Imperial Presidency, The Terror Presidency, or Takeover: The Return of the Imperial Presidency Takeover: The Return of the Imperial Presidency all proceed from the a.s.sumption that the President has no significant const.i.tutional authority of his own but is bound to follow Congress's directions, even during war or emergency. all proceed from the a.s.sumption that the President has no significant const.i.tutional 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 Emanc.i.p.ation Proclamation, or America's early a.s.sistance 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 Const.i.tution'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 cla.s.sified 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. 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 sh.e.l.ls. Chief executives can draw upon a deep well of const.i.tutional 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 const.i.tutional powers. 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 sh.e.l.ls. Chief executives can draw upon a deep well of const.i.tutional 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 const.i.tutional 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 const.i.tutional and inst.i.tutional 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. 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 const.i.tutional authorities of the office, and presidential success as measured by scholars of the Presidency. I examine how individual Presidents understood and used their const.i.tutional authorities to deal with challenges, successfully or not. Instead, I seek here to provide a different perspective: to describe the relationship between the const.i.tutional authorities of the office, and presidential success as measured by scholars of the Presidency. I examine how individual Presidents understood and used their const.i.tutional 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 const.i.tutional balance to restrain a truly out-of-control President, or misread active responses to unprecedented challenges as challenges to the Const.i.tution. The hyperbole in such rhetoric is manifest in overwrought yet commonplace invocations of "treason" or "tramplings" of the Const.i.tution. Has the Const.i.tution 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 hara.s.sment 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 d.a.m.ning 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 const.i.tutional powers of the office. It started with the Revolutionaries' effort to avoid executives who might become monarchs. By the time of the Const.i.tution's ratification, however, the Framers' views had evolved in favor of an independent, forceful President. The Const.i.tution 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, deeds that met national challenges, both foreign and domestic. Presidential power has grown with the nation's power, both in our const.i.tutional 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." 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 const.i.tutional 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 Const.i.tution." Scholars following Neustadt find presidential power in characteristics such as communicative and political skills, organizational ability, vision, cognitive style, and emotional intelligence. While Neustadt conceded that formal const.i.tutional 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 Const.i.tution." 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 const.i.tutional powers. Neustadt would recommend that Presidents rely upon these skills and avoid any invocation of their const.i.tutional 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 Const.i.tution. 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. 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 cla.s.sic Professor Clinton Rossiter, author of the cla.s.sic The American Presidency The American Presidency, identified several duties inc.u.mbent 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 Const.i.tution's original separation of powers divided the executive from the legislative far too well, creating paralyzed government as a result. 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 Const.i.tution'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." Presidential government, Burns observed, would "strengthen democratic procedures" and help achieve "modern liberal democratic goals."

For others, the problem is the reverse: the Const.i.tution 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 const.i.tutional 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 The Imperial Presidency, he claimed that a "shift in the const.i.tutional 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 Const.i.tution and by long historical practice to Congress."14Claims that the Presidency has violated the Const.i.tution'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 a.s.sume that the Framers of 1787 designed the original Presidency to be a weak office, and that circ.u.mstances 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 flexible. And so, from the beginning, Presidents have acted forcefully to respond to emergencies and unantic.i.p.ated events without consulting Congress. The Framers counted on politics to check and balance presidential initiative, not "parchment barriers." The Presidency could have evolved into a weak office whose occupants served as the Clerks-in-Chief to Congress. As it happened, the United States grew in size, population, and complexity, and the Presidency grew with it, in power and standing.

This insight can be traced at least as far back as Alexis de Tocqueville. In his cla.s.sic Democracy in America Democracy in America, he observed that the Presidency was a relatively weak office because the armed forces were tiny, the nation was protected from Europe by the oceans, and no natural enemies sat along its borders. "The President of the United States possesses almost royal prerogatives, which he has no opportunity of exercising; and the privileges that he can at present use are very circ.u.mscribed. The laws allow him to be strong, but circ.u.mstances keep him weak." That would change, Tocqueville predicted, as America grew. It is in foreign relations "that the executive power of a nation finds occasion to exert its skill and its strength." If the national security of the country "were perpetually threatened, if its chief interests were in daily connection with those of other powerful nations," Tocqueville continued, "the executive government would a.s.sume an increased importance in proportion to the measures expected of it and to those which it would execute."15 This book will trace the history of presidential power from the founding of the Republic up to today's debates over the war on terror. Understanding the growth and nature of executive power requires an interdisciplinary approach, including political science, history, and law. To combine these fields is too rare. The origins of the "unitary executive" go back to Alexander Hamilton and before him to Montesquieu, Blackstone, Locke, and Machiavelli. The unitary executive theory, like the text of the Const.i.tution, says that the President has the "executive power" of government -- that is, the authority to manage the agencies and exercise powers inherently "executive" in nature, in particular the conduct of foreign policy. This vesting of power contrasts with the Const.i.tution's grant of specified, or "enumerated," powers to Congress. Chapter 1 Chapter 1 will discuss the creation of the Presidency, beginning with the colonists' experience with executive power, the problems with legislative supremacy during the Revolution, and the establishment of a strong, independent executive by the Const.i.tution's Framers. will discuss the creation of the Presidency, beginning with the colonists' experience with executive power, the problems with legislative supremacy during the Revolution, and the establishment of a strong, independent executive by the Const.i.tution's Framers.

Following chapters will discuss individual Presidents and the use of their const.i.tutional powers. No single volume could comprehensively discuss every President's relationship with his const.i.tutional powers. Instead, Chapters 2 Chapters 2 through through 7 7 will focus on our great Presidents and contrast them with some of our worst leaders. In 2005, the will focus on our great Presidents and contrast them with some of our worst leaders. In 2005, the Wall Street Journal Wall Street Journal and the Federalist Society asked 130 prominent historians, political scientists, economists, and law professors from across the ideological spectrum to rank each American President on a scale of 1 to 5: and the Federalist Society asked 130 prominent historians, political scientists, economists, and law professors from across the ideological spectrum to rank each American President on a scale of 1 to 5:

GREAT.

George Washington George Washington 4.94 4.94.

Abraham Lincoln Abraham Lincoln 4.67 4.67.

Franklin Roosevelt Franklin Roosevelt 4.41 4.41.

NEAR GREAT.

Thomas Jefferson Thomas Jefferson 4.23 4.23.

Theodore Roosevelt Theodore Roosevelt 4.08 4.08.

Ronald Reagan Ronald Reagan 4.03 4.03.

Harry Truman Harry Truman 3.95 3.95.

Dwight Eisenhower Dwight Eisenhower 3.67 3.67.

James Polk James Polk 3.59 3.59.

Andrew Jackson Andrew Jackson 3.58 3.58 16 16.

Rather than put forward its own definition of greatness, this book will examine the growth of the powers of these Presidents and their effect on the nation's fortunes. All these Presidents believed that their office was equal, and not subordinate, to Congress or the courts and took for granted that the broad exercise of that authority was essential to their success. Several of these Presidents were, in fact, responsible for some of the most explosive const.i.tutional confrontations in American history. An enormous historical literature, indeed, trumpets their "great" or "near great" status precisely because they were so bold as to a.s.sert power with extraordinary vigor, and precisely in the most contested or doubtful circ.u.mstances.

Chapters 2 through through 7 7 will examine the history of some of America's best and worst chief executives to understand the outer limits and best uses of presidential power. Looking at the use of const.i.tutional power through a few Presidents may seem questionable to historians, who usually try to understand an individual leader by presenting him in his every detail -- hence the recent biographies examining the childhood, medical health, psychologies, and marital relations, among other things, of Presidents. I do not take issue with the broadening of presidential history, only here the focus remains on the intellectual, political, and legal development of the office. While important, the new social history does not provide as much useful context for an inquiry into const.i.tutional powers as do political, diplomatic, and economic histories. will examine the history of some of America's best and worst chief executives to understand the outer limits and best uses of presidential power. Looking at the use of const.i.tutional power through a few Presidents may seem questionable to historians, who usually try to understand an individual leader by presenting him in his every detail -- hence the recent biographies examining the childhood, medical health, psychologies, and marital relations, among other things, of Presidents. I do not take issue with the broadening of presidential history, only here the focus remains on the intellectual, political, and legal development of the office. While important, the new social history does not provide as much useful context for an inquiry into const.i.tutional powers as do political, diplomatic, and economic histories.

A related point is the importance of practice as a source of const.i.tutional meaning. When confronted with any legal question, lawyers will turn first to judicial opinions as an authoritative source of interpretation. Supreme Court opinions pa.r.s.e the const.i.tutional text in light of its original meaning, structure, history, and precedent. In separation-of-power questions, however, especially those involving foreign affairs and national security, judicial opinions are few and far between. There is no Supreme Court decision, for example, defining what the Senate may consider in giving its "advice and consent" to a treaty, or to a Supreme Court nomination, for that matter. The Supreme Court has never decided whether the President must receive a declaration of war or other form of congressional authorization before beginning military hostilities abroad. As then-Justice Rehnquist wrote for the Court in Dames & Moore v. Regan Dames & Moore v. Regan, "the decisions of the Court in this area have been rare, episodic, and afford little precedential value for subsequent cases."17 Historical practice has outsized importance because of this absence of judicial precedent or any other form of binding resolution of disputes among the branches of government. Practice reflects the understandings developed by the branches of government over time for reaching decisions in these areas. Presidents, for example, have never understood "advice and consent" to require personal consultation with the Senate before negotiating a treaty or choosing a Supreme Court nominee, and this because of a practice that began in George Washington's first year in office. Practice also represents the considered views of leaders of different branches over American history on separation-of-power questions. It is a record of the way in which government actors have adapted broad const.i.tutional principles to discrete questions over time. The c.u.mulative effect of their decisions may reveal st.u.r.dy truths about the way our government should best work within the system established by the Const.i.tution. Justice Felix Frankfurter put the point well in the Steel Seizure case, Youngstown Sheet & Tube v. Sawyer Youngstown Sheet & Tube v. Sawyer, in which the Court blocked President Truman's takeover of steel mills during the Korean War: "The Const.i.tution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Const.i.tution or legislation, but they give meaning to the words of a text or supply them."18 Studying practice closely may provide us with a quality of understanding similar to that enjoyed by courts. Judges usually avoid deciding questions until they arise in a real case, in part because the abstract principles are only tested in the context of actual parties, events, and facts. Similarly, it makes sense to examine executive power under these Presidents because the meaning of broad const.i.tutional principles becomes sharper and clearer in the context of the challenges that they confronted. During periods of peace and domestic tranquility, Presidents, Congresses, and courts will cooperate much of the time, and so no occasion for the definition of their respective const.i.tutional powers will arise. It is only during times of high stress on the political system when the principles of the const.i.tutional framework clearly emerge. Two cautions are in order, however. First, just because practice exists does not make it right -- the persistence of Jim Crow laws for almost 100 years does not, in my mind, make the separate-but-equal interpretation of the Reconstruction Amendments legitimate or correct. Second, practice may be wrong because earlier generations operated under poor information or did not confront the same types of circ.u.mstances that we do today.

These chapters on individual Presidents will show that the const.i.tutional powers of the Presidency grew along with the President's political position as party leader and representative of a national majority. These powers involve control over the administrative state, law enforcement, the conduct of foreign policy, national security, and to the extent the Const.i.tution is unclear, interpretation. The inst.i.tutionally independent, unified executive and its powers were built through our history, by the hands of Presidents who guided America through the shoals attending its birth, rebirth, and rise to global preeminence. Presidential power has expanded with each crisis and emergency, to keep the nation out of the Napoleonic Wars, to purchase Louisiana, to free the slaves, to bring the nation into World War II, and to contain and defeat the Soviet Union. At these times, our greatest chief executives have vigorously used their powers to benefit, even to save, the nation.

This is not to say that Presidents can act unilaterally for very long, or that success inevitably follows executive initiative. Emergencies may call upon a President to lead, and robust exercises of presidential power can jolt the political system into recognizing new realities. But resistance and opposition almost always arise in response. Congress and especially the courts may try to defend the status quo. Presidents need the help of congressional majorities, well-organized political parties, or a pa.s.sive judiciary for their policies to stay in place over the long term. Nonetheless, Presidents who hold narrow visions of their powers, or those who are overly deferential to Congress, such as James Buchanan, will experience failure in crisis. So, too, did Richard Nixon, who expanded presidential power in a time of war and foreign challenge but did so self-servingly against political opponents.

Nixon and Watergate prompted understandable concerns that the abuse of presidential power was a real threat to our democracy, yet permanently curbing executive power may prove even more damaging. The most radical critics of presidential power seek a return to an idealized system of government that has not existed for more than 100 years, ignoring the complexity of the world today. Congress is a large and unwieldy committee that rarely agrees on a single vision. Congress itself has chosen over the years to delegate enormous authority to the President -- to regulate the environment, education, welfare, the Internet, and many other areas -- precisely because it knows that the executive branch alone can bring management expertise to national problems. Our Const.i.tution designed the executive branch to wield power effectively and flexibly, and our history has favored forceful, not constrained, Presidencies.

CHAPTER 1.

Beginnings MOST JUDGES AND LAWYERS today do not hold the "originalist" view of Justices Clarence Thomas and Antonin Scalia that the Const.i.tution should be interpreted in accordance with the Framers' understanding of the text. Yet, most Americans do believe that what the Framers thought they were doing is still the key starting point for any discussion of the powers of the government and the Presidency. Hence, studies of the Presidency usually begin with the Const.i.tutional Convention of 1787.

The Framers thought long and hard about the question of executive power. In the words of historian Jack Rakove, creating the Presidency was "their most creative act." It was also their most ambiguous. Details of this new Presidency were left open, sparking controversy from the beginning.1 In Europe, executive power had been the province of kings, not elected officials. Its exercise had caused social turmoil, revolution, and civil war. In the Framers' native Great Britain, restoration of the monarchy had followed. Taming executive power within a republican form of government became a central aim of the Framers of the new American Const.i.tution. In Europe, executive power had been the province of kings, not elected officials. Its exercise had caused social turmoil, revolution, and civil war. In the Framers' native Great Britain, restoration of the monarchy had followed. Taming executive power within a republican form of government became a central aim of the Framers of the new American Const.i.tution.

Many scholars believe that the exercise of executive power today runs counter to the original const.i.tutional design. This group argues that the Revolution against King George III was part of a larger rejection of executive authority and that the Presidency was intended to be a narrow, limited office. The Framers would never have intended to resurrect the same royal prerogatives that they had just fought a war to overthrow.2 This view of the Presidency diminishes its const.i.tutional authority and independence to that of a Clerk-in-Chief whose main duty is to execute Congress's laws. This interpretation profoundly misreads the political developments around the founding of America and the drafting of its Const.i.tution. This view of the Presidency diminishes its const.i.tutional authority and independence to that of a Clerk-in-Chief whose main duty is to execute Congress's laws. This interpretation profoundly misreads the political developments around the founding of America and the drafting of its Const.i.tution.

It is true that the Revolutionaries rebelled against King George III and his perceived oppressions of the colonies, but it does not follow that they opposed the idea of executive power. To most who gathered in Philadelphia in the summer of 1787, post-Revolutionary efforts by the states to allow only weak executives with fragmented functions and powers had largely failed. Undermining the integrity of the executive branch had led to unstable, oppressive legislatures. The drafters of the Const.i.tution came to Philadelphia in large part to restore the independence and unity of the executive branch -- a republican, not a royal restoration.

EXECUTIVE POWER AND POLITICAL THOUGHT.

EXECUTIVE POWER HAS always presented a conundrum: how to make the executive strong enough to promote the common good, but not so strong as to risk despotism. This problem remained vivid in the minds of the Framers. During the ratification of the Const.i.tution, Alexander Hamilton responded, in Federalist 70 Federalist 70, to the fears of the Anti-Federalists that "a vigorous executive is inconsistent with the genius of republican government."3 But in the very same paragraph, Hamilton went on to declare that "energy in the executive is a leading character in the definition of good government." How did the Framers go from the weak executives of their revolutionary state const.i.tutions to the strong Presidency described by Hamilton? But in the very same paragraph, Hamilton went on to declare that "energy in the executive is a leading character in the definition of good government." How did the Framers go from the weak executives of their revolutionary state const.i.tutions to the strong Presidency described by Hamilton?

What the drafters of the Const.i.tution meant by executive power and how they viewed the Presidency require that we examine the const.i.tutional thinking of the revolutionary and early national period in some detail. As intellectual historians Bernard Bailyn, Forrest McDonald, and Gordon Wood have shown, the writings of John Locke, Montesquieu, and Sir William Blackstone, set within the context of eighteenth-century British political history, had a profound effect on the Framing generation.4 Political theory about the tensions between executive power and republican government go back at least as far as Niccolo Machiavelli, who is thought to have had little influence during his own lifetime but has become synonymous in the modern mind with coldhearted Political theory about the tensions between executive power and republican government go back at least as far as Niccolo Machiavelli, who is thought to have had little influence during his own lifetime but has become synonymous in the modern mind with coldhearted realpolitik realpolitik at its starkest. Machiavelli deserves better than his popular reputation; J. G. A. Poc.o.c.k t.i.tled his work on the roots of republican government "The Machiavellian Moment" in recognition of Machiavelli's key role in the rebirth of cla.s.sic republicanism. at its starkest. Machiavelli deserves better than his popular reputation; J. G. A. Poc.o.c.k t.i.tled his work on the roots of republican government "The Machiavellian Moment" in recognition of Machiavelli's key role in the rebirth of cla.s.sic republicanism.5 Machiavelli invented the modern idea of the executive as the arm of government that both executes the laws and acts to protect the public welfare.6 The rule of ancient consuls, emperors, and medieval kings did not rest on an idea of specialized function, but on a social cla.s.s theory by which the royal cla.s.s held power by divine right. Breaking with Aristotelian and Christian theories of political science, Machiavelli "liberated," in the words of Harvey C. Mansfield, Jr., the executive from both natural law and religion. The rule of ancient consuls, emperors, and medieval kings did not rest on an idea of specialized function, but on a social cla.s.s theory by which the royal cla.s.s held power by divine right. Breaking with Aristotelian and Christian theories of political science, Machiavelli "liberated," in the words of Harvey C. Mansfield, Jr., the executive from both natural law and religion.7 The executive was, rather, the servant of necessity, bound to act in accordance with, in the absence of, or in extraordinary emergencies, in defense of the republic, even contrary to regularly const.i.tuted law. Machiavelli pointed to executive decisiveness and secrecy -- princes were "quick" to execute and acted "at a stroke," The executive was, rather, the servant of necessity, bound to act in accordance with, in the absence of, or in extraordinary emergencies, in defense of the republic, even contrary to regularly const.i.tuted law. Machiavelli pointed to executive decisiveness and secrecy -- princes were "quick" to execute and acted "at a stroke,"8 unlike fractious senates. Acting " unlike fractious senates. Acting "uno solo," the successful executive's ambition will be turned to the common good, or else he will be held accountable for his failures -- a concise early statement of today's idea of the unitary executive. Hamilton's description of the Presidency as able to act with "decision, activity, secrecy, and dispatch" echoes Machiavelli.9 Machiavelli challenged the thinkers who came after him to accommodate the executive's energy and decisiveness within the bounds of a formal const.i.tutional order. Thomas Hobbes saw the executive as, ideally, an inst.i.tution rather than a person. Hobbes believed sovereign authority should vest in one body, either a monarch or an a.s.sembly, and did not understand the executive and legislative functions to be distinct.10 John Locke, in his John Locke, in his Second Treatise of Government Second Treatise of Government, gave birth to the modern separation of powers, dividing the executive from the legislative power and vesting these powers in different inst.i.tutions. According to Locke, in the state of nature, every man holds the power to execute the laws of nature but gives up some of that power when joining the commonwealth. Locke saw the executive as primarily the servant of the laws. Because legislatures could not always remain in session, society requires "a Power always in being, which should see to the Execution of the Laws that are made, and remain in force."11 The legislature held the "Supream [sic] Power" to set the rules of conduct, Locke said, while the executive remained subordinate in implementing the laws. The legislature held the "Supream [sic] Power" to set the rules of conduct, Locke said, while the executive remained subordinate in implementing the laws.

Locke envisioned a dominant legislature balanced by an independent executive with certain key lawmaking powers: the veto, the right to call or dissolve Parliament, and "federative" power over "war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth."12 Though the federative and executive were "really distinct in themselves," Locke observed that "they are almost always united" because the former "is much less capable to be directed by antecedent, standing positive laws." Though the federative and executive were "really distinct in themselves," Locke observed that "they are almost always united" because the former "is much less capable to be directed by antecedent, standing positive laws."13 Locke's executive and federative functions were to be performed by the part of government that is always operational, swiftly adapting to new circ.u.mstances or dangers. Locke did not recommend separating the functions, which he predicted would lead to "disorder and ruin," by dividing "the force of the public" into "different commands." Locke's executive and federative functions were to be performed by the part of government that is always operational, swiftly adapting to new circ.u.mstances or dangers. Locke did not recommend separating the functions, which he predicted would lead to "disorder and ruin," by dividing "the force of the public" into "different commands."

Unantic.i.p.ated threats were to be dealt with by prerogative, which, stripped of its royal origins, nevertheless allowed the executive, in an emergency, "to act according to discretion for the public good, without the prescription of the law, and sometimes even against it."14 Like the federative power, the prerogative operated in a zone that general, antecedent laws could not address. "Many things there are which the law can by no means provide for, and those must necessarily be left to the discretion of him that has the executive power in his hands." The legislature was "too slow for the dispatch requisite to execution." Unlike the royal prerogative, the executive's authority had to be exercised in the public interest and for the common good. The existence of such power still raised the "old question" of how to resolve conflicts between emergency power and the standing laws. To Locke, there were no preexisting answers to this problem, and there was "no judge on earth" who could resolve it. Defining the executive prerogative's full scope beforehand would be simply impossible. Like the federative power, the prerogative operated in a zone that general, antecedent laws could not address. "Many things there are which the law can by no means provide for, and those must necessarily be left to the discretion of him that has the executive power in his hands." The legislature was "too slow for the dispatch requisite to execution." Unlike the royal prerogative, the executive's authority had to be exercised in the public interest and for the common good. The existence of such power still raised the "old question" of how to resolve conflicts between emergency power and the standing laws. To Locke, there were no preexisting answers to this problem, and there was "no judge on earth" who could resolve it. Defining the executive prerogative's full scope beforehand would be simply impossible.

Montesquieu reinforced Locke's ideas with a unique twist. His 1748 Spirit of Laws Spirit of Laws inaccurately idealized the English const.i.tution but became famous for the maxim that "when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty." inaccurately idealized the English const.i.tution but became famous for the maxim that "when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty."15 Montesquieu defined the legislative power as controlling domestic policy, taxing and spending, and establishing private rules of conduct. Following Locke, he viewed the executive power as enforcing the laws and conducting foreign relations. Montesquieu added a third branch of government, the judiciary, which Locke had cla.s.sified as a law enforcement function. Apart from inventing the independent judiciary, Montesquieu did not fundamentally alter Locke's approach. Cited more than any other philosopher by Federalists and Anti-Federalists alike, Montesquieu was the prime exponent for the colonists of the idea of separating powers to safeguard liberty. Montesquieu defined the legislative power as controlling domestic policy, taxing and spending, and establishing private rules of conduct. Following Locke, he viewed the executive power as enforcing the laws and conducting foreign relations. Montesquieu added a third branch of government, the judiciary, which Locke had cla.s.sified as a law enforcement function. Apart from inventing the independent judiciary, Montesquieu did not fundamentally alter Locke's approach. Cited more than any other philosopher by Federalists and Anti-Federalists alike, Montesquieu was the prime exponent for the colonists of the idea of separating powers to safeguard liberty.16 Blackstone transformed these theories into something resembling const.i.tutional law. In his Commentaries on the Laws of England Commentaries on the Laws of England, which was widely read in the colonies, Blackstone retained Locke and Montesquieu's distinctions among lawmaking, execution, and foreign affairs. The "making of the laws is entirely the work of a distinct part, the legislative branch, of the sovereign power."17 It was a "sovereign and uncontrollable authority" on all domestic matters. Parliament could "do everything that is not naturally impossible." Blackstone's separation of powers, however, was based not on function but on social cla.s.s -- the King, Lords, and Commons represented different segments of society with their own attributes, such as power, wisdom, and virtue. Blackstone's mixed const.i.tution protected liberty by ensuring that each social cla.s.s partic.i.p.ated in all government decisions. It was a "sovereign and uncontrollable authority" on all domestic matters. Parliament could "do everything that is not naturally impossible." Blackstone's separation of powers, however, was based not on function but on social cla.s.s -- the King, Lords, and Commons represented different segments of society with their own attributes, such as power, wisdom, and virtue. Blackstone's mixed const.i.tution protected liberty by ensuring that each social cla.s.s partic.i.p.ated in all government decisions.

Blackstone had much in common with Montesquieu and Locke. He defined the executive's primary job as prosecution of the laws and praised the British const.i.tution's concentration of executive authority in a "sole magistrate of the nation" because it produced "unanimity, strength, and dispatch."18 In words that would be repeated during the Philadelphia Convention (though often without attribution), Blackstone criticized the idea of dispersing the executive power among different officials. "Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in government." For that reason, Blackstone concluded, the British const.i.tution made the King of England "not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him." In words that would be repeated during the Philadelphia Convention (though often without attribution), Blackstone criticized the idea of dispersing the executive power among different officials. "Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in government." For that reason, Blackstone concluded, the British const.i.tution made the King of England "not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him."19 Blackstone located the foreign affairs power in the Crown because the King represented the nation, and large bodies could not successfully conduct foreign affairs. "The king [had] also the sole prerogative of making war and peace," exclusively exercised the treaty power, could raise armies and navies on his own, and was "generalissimo, or the first in military command, within the kingdom." Blackstone also recognized executive prerogative but limited it to the "discretionary power of acting for the public good," which, if it "be abused to the public detriment" would be "exerted in an unconst.i.tutional manner."20 Unlike Locke and Machiavelli, Blackstone believed that Parliament could "lop off" or more "clearly define" the prerogative; in other words, the prerogative could only operate when the laws were silent, and not when they were in opposition. This legislative check, however, was more apparent than real, because the King possessed an absolute veto over legislation -- restricting executive prerogative could happen only with the Crown's consent. Unlike Locke and Machiavelli, Blackstone believed that Parliament could "lop off" or more "clearly define" the prerogative; in other words, the prerogative could only operate when the laws were silent, and not when they were in opposition. This legislative check, however, was more apparent than real, because the King possessed an absolute veto over legislation -- restricting executive prerogative could happen only with the Crown's consent.21 The colonists' understanding of British political history also influenced American const.i.tutional thought during this period. Struggle between the Stuart Kings and Parliament produced the Civil War, Oliver Cromwell's Interregnum, the brief Restoration of the Stuarts, and then the Glorious Revolution and ultimate settlement. While the political, economic, and social causes of this turmoil were complex, the const.i.tutional lessons were well known. Charles I refused to call Parliament into session for 11 years and sought to run foreign policy and the military without legislative funding. His efforts to evade Parliament led to his downfall. During the Restoration, the monarchy again tried to govern without Parliament, and again failed. After the 1688 Glorious Revolution, the monarchy and Parliament reached a settlement that clarified the latter's control over legislation, funding, and support of the military.

In the mid-eighteenth century, Britain was evolving from an executive branch personally centered on the King toward a cabinet system. The King ruled through a privy council usually composed of handpicked advisers and confidants. Parliament maintained its check on the executive through the power of the purse and its enactment of legislation. After the Glorious Revolution, the system developed into a nascent cabinet, whose members were chosen based on their ability to convince Parliament to adopt Crown policies, and ministers resorted to bribery and patronage to build legislative coalitions. In the mid-eighteenth century, for example, apparently one-third of all members of the House of Commons held offices appointed by the King, and another 5 percent benefited from government contracts. Patronage was the 1700s' version of today's congressional earmarks. Favors held legislators together when party discipline did not yet exist.

Change in the British political system had a profound impact on the colonists. The Revolutionary generation viewed these events through the lens of opposition ideology, which excoriated the Hanoverian Kings' efforts to manipulate Parliament, the permanent executive ministries, the new financial system backing the British Empire, and the spread of patronage and bribery throughout Parliament.22 Corruption, standing armies, constant wars, and a large public debt sapped the British const.i.tution's checks and balances and a.s.saulted the rights and liberties of the British people. Corruption, standing armies, constant wars, and a large public debt sapped the British const.i.tution's checks and balances and a.s.saulted the rights and liberties of the British people. Cato's Letters Cato's Letters, a tract of 144 much-quoted essays written by John Trenchard and Thomas Gordon, disseminated such ideas widely in the colonies -- half of the private libraries of the day held a copy.23 The American Revolution was more than just a revolt against the idea of monarchy. Historians have puzzled over why the Framers rebelled when they were loyal British citizens, enjoying prosperity and growth, and victorious against France in the Seven Years' War. But victory brought a permanent military presence in the colonies and the need for heavier taxation, as well as trade regulation and monopolies imposed by Parliament. This contrasted sharply with London's previous policy of benign neglect, which had permitted the colonies to control their internal affairs and finances. Americans viewed the new taxation and regulation as nothing less than the overthrow of the checks and balances of the ancient const.i.tution, and rebelled, not so much in an effort to curb executive power, but to maintain the historic balance between the Crown and Parliament on the one hand and the state a.s.semblies on the other.

EXECUTIVE POWER IN THE CRITICAL PERIOD.

INDEPENDENCE PUT AMERICAN theories of governance to the test, and they failed miserably. The Revolutionaries established one national charter, the Articles of Confederation, which soon proved crippled from lack of executive organization and leadership. The revolutionists wrote their state const.i.tutions to undermine the structural integrity of the executive branch, and the results were legislative abuse, special-interest laws, and weak governments. Dissatisfaction with this state of affairs, even in a postwar time of relative peace and prosperity, led American nationalists to draft a new Const.i.tution that would create a stronger, more independent executive branch within a more powerful national form of government. They would become known as the Federalists.

Scholars often misunderstand the Articles of Confederation. Drafted in 1777 and ratified in 1781, the Articles established the first American national government. Some have concluded that a power was legislative, such as the power to make war, simply because the Articles of Confederation granted it to the Continental Congress.24Andrew Rudalevige is one such critic of presidential power who believes that the Articles lacked an independent executive branch.25This view mistakes the Articles of Confederation as creating a legislature, which it did not. As Chief Justice John Marshall recognized, the "confederation was, essentially, a league; and Congress was a corps of amba.s.sadors."26 It had no power of taxation nor power of internal legislation, and it was not chosen on the basis of popular representation. It had as much real legislative power in the United States then as the United Nations has today. It had no power of taxation nor power of internal legislation, and it was not chosen on the basis of popular representation. It had as much real legislative power in the United States then as the United Nations has today.

Rather, the Articles of Confederation created America's national executive, which inherited the Crown's imperial powers in the colonies, while the states retained their legislative powers.27 It kept "the sole and exclusive right and power of determining on peace and war," entering into treaties, and conducting foreign relations. It kept "the sole and exclusive right and power of determining on peace and war," entering into treaties, and conducting foreign relations.28 It had the power to appoint committees and officers to administer federal law, the central function of the executive. Congress's problem was not a lack of executive power, but the way that power was organized and supported. Initially, Congress created committees to carry out decisions, a design that proved disastrous with troops in the field fighting the British. In 1781, Congress replaced committees with executive departments headed by individual secretaries, an improvement, but Congress continued to try to micromanage policy, and the executive still lacked "method and energy," in the words of a young Alexander Hamilton. It had the power to appoint committees and officers to administer federal law, the central function of the executive. Congress's problem was not a lack of executive power, but the way that power was organized and supported. Initially, Congress created committees to carry out decisions, a design that proved disastrous with troops in the field fighting the British. In 1781, Congress replaced committees with executive departments headed by individual secretaries, an improvement, but Congress continued to try to micromanage policy, and the executive still lacked "method and energy," in the words of a young Alexander Hamilton.29 The states, which continued to control supply and internal legislation, failed to supply revenue to the national government or comply with its requests. This experience led General Washington to forever favor placing responsibility for executive action in a single, accountable leader. The states, which continued to control supply and internal legislation, failed to supply revenue to the national government or comply with its requests. This experience led General Washington to forever favor placing responsibility for executive action in a single, accountable leader.

Once peace arrived, Congress proved utterly incapable of handling its executive duties. It could not establish even a small military to protect northern forts near the Canadian border, which the British refused to hand over, in violation of the 1783 peace treaty.30 Britain and France imposed harmful trading rules against American ships, while Spain closed the critical port of New Orleans to American commerce. American amba.s.sadors could do nothing because Congress had no authority over commerce with which to threaten retaliation. It could not even approve an agreement with Spain, negotiated by John Jay, to reopen New Orleans and thereby the Mississippi, the chief route for American farm exports. Dissatisfaction with congressional weakness climaxed with Shays' Rebellion in August 1786. A mob of 1,500 men blocked the Ma.s.sachusetts legislature from meeting, though the discontents soon scattered after a brief confrontation with state volunteers. Nationalists like Henry Knox and George Washington exaggerated the threat into 12,000 soldiers who had planned to rob banks and overthrow the state government. Congress's dismal record and the looming threat of chaos and disorder augured by Shays' Rebellion were at the forefront of the minds of the delegates as they met in Philadelphia. Britain and France imposed harmful trading rules against American ships, while Spain closed the critical port of New Orleans to American commerce. American amba.s.sadors could do nothing because Congress had no authority over commerce with which to threaten retaliation. It could not even approve an agreement with Spain, negotiated by John Jay, to reopen New Orleans and thereby the Mississippi, the chief route for American farm exports. Dissatisfaction with congressional weakness climaxed with Shays' Rebellion in August 1786. A mob of 1,500 men blocked the Ma.s.sachusetts legislature from meeting, though the discontents soon scattered after a brief confrontation with state volunteers. Nationalists like Henry Knox and George Washington exaggerated the threat into 12,000 soldiers who had planned to rob banks and overthrow the state government. Congress's dismal record and the looming threat of chaos and disorder augured by Shays' Rebellion were at the forefront of the minds of the delegates as they met in Philadelphia.

Experimentation with the executive went to extremes in the states. Some eliminated the independence of the governor's office. In all but one state, the a.s.sembly elected the governor, making clear who served whom. Some states tried executive committees or required the governor's decisions to be approved by a council of state appointed by the legislature. As Professor Gordon Wood has observed, the councils often made the governors "little more than chairmen of their executive boards."31 States limited the governor's term and eligibility. Most states either provided for the annual election of the governor, restricted the number of terms a governor could serve, or both. Pennsylvania tested the farthest reaches of radicalism by replacing the single governor with a 12-man executive council elected annually by the legislature. States limited the governor's term and eligibility. Most states either provided for the annual election of the governor, restricted the number of terms a governor could serve, or both. Pennsylvania tested the farthest reaches of radicalism by replacing the single governor with a 12-man executive council elected annually by the legislature.32 The Revolution had occurred because the colonists wanted to maintain the independence of their legislatures from the control of the British King-in-Parliament. Their cure was to make the executive subordinate to the a.s.semblies. The Revolution had occurred because the colonists wanted to maintain the independence of their legislatures from the control of the British King-in-Parliament. Their cure was to make the executive subordinate to the a.s.semblies.

Some of the revolutionaries wanted to restrict the substance as well as the structure of executive power. Thomas Paine's Common Sense Common Sense not only attacked the British monarchy, but it also called for an end to executives in the colonies. Paine proposed to his fellow Americans that they adopt governments run by legislatures, which would have only a presiding officer. not only attacked the British monarchy, but it also called for an end to executives in the colonies. Paine proposed to his fellow Americans that they adopt governments run by legislatures, which would have only a presiding officer.33 Thomas Jefferson's draft for the Virginia const.i.tution merely gave the governor the t.i.tle merely of the "Administrator." Thomas Jefferson's draft for the Virginia const.i.tution merely gave the governor the t.i.tle merely of the "Administrator."34 Jefferson enumerated the powers the executive Jefferson enumerated the powers the executive could not could not exercise: He could not dismiss the legislature, regulate the money supply, set weights and measures, establish courts or other public facilities, control exports, create offices, or issue pardons. The Administrator could not "declare war or peace, issue letters of marque or reprisal, raise or introduce armed forces, or build armed vessels...forts or strongholds." Although the draft ceded to the Administrator any remaining "powers formerly held by the king," there wa