Crisis and Command: A History of Executive Power from George Washington to George W. Bush (2 page)

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."
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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.
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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.
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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.
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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."
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Claims 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 flexible. And so, from the beginning, Presidents have acted forcefully to respond to emergencies and unanticipated 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 classic
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 circumscribed. The laws allow him to be strong, but circumstances 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 assume an increased importance in proportion to the measures expected of it and to those which it would execute."
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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 Constitution, 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 Constitution's grant of specified, or "enumerated," powers to Congress.
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 Constitution's Framers.

Following chapters will discuss individual Presidents and the use of their constitutional powers. No single volume could comprehensively discuss every President's relationship with his constitutional powers. Instead,
Chapters 2
through
7
will focus on our great Presidents and contrast them with some of our worst leaders. In 2005, the
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:

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 constitutional confrontations in American history. An enormous historical literature, indeed, trumpets their "great" or "near great" status precisely because they were so bold as to assert power with extraordinary vigor, and precisely in the most contested or doubtful circumstances.

Chapters 2
through
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 constitutional 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 constitutional powers as do political, diplomatic, and economic histories.

A related point is the importance of practice as a source of constitutional meaning. When confronted with any legal question, lawyers will turn first to judicial opinions as an authoritative source of interpretation. Supreme Court opinions parse the constitutional 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
, "the decisions of the Court in this area have been rare, episodic, and afford little precedential value for subsequent cases."
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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 constitutional principles to discrete questions over time. The cumulative effect of their decisions may reveal sturdy truths about the way our government should best work within the system established by the Constitution. Justice Felix Frankfurter put the point well in the Steel Seizure case,
Youngstown Sheet & Tube v. Sawyer
, in which the Court blocked President Truman's takeover of steel mills during the Korean War: "The Constitution 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 Constitution or legislation, but they give meaning to the words of a text or supply them."
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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 constitutional 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 constitutional powers will arise. It is only during times of high stress on the political system when the principles of the constitutional 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 circumstances that we do today.