Crisis and Command: A History of Executive Power from George Washington to George W. Bush (3 page)

These chapters on individual Presidents will show that the constitutional 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 Constitution is unclear, interpretation. The institutionally 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 passive 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 Constitution 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 Constitution 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 Constitutional 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.
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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 Constitution.

Many scholars believe that the exercise of executive power today runs counter to the original constitutional 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.
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This view of the Presidency diminishes its constitutional 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 Constitution.

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 Constitution 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 Constitution, Alexander Hamilton responded, in
Federalist 70
, to the fears of the Anti-Federalists that "a vigorous executive is inconsistent with the genius of republican government."
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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 constitutions to the strong Presidency described by Hamilton?

What the drafters of the Constitution meant by executive power and how they viewed the Presidency require that we examine the constitutional 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.
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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
at its starkest. Machiavelli deserves better than his popular reputation; J. G. A. Pocock titled his work on the roots of republican government "The Machiavellian Moment" in recognition of Machiavelli's key role in the rebirth of classic republicanism.
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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.
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The rule of ancient consuls, emperors, and medieval kings did not rest on an idea of specialized function, but on a social class theory by which the royal class 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.
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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 constituted law. Machiavelli pointed to executive decisiveness and secrecy -- princes were "quick" to execute and acted "at a stroke,"
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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.
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Machiavelli challenged the thinkers who came after him to accommodate the executive's energy and decisiveness within the bounds of a formal constitutional order. Thomas Hobbes saw the executive as, ideally, an institution rather than a person. Hobbes believed sovereign authority should vest in one body, either a monarch or an assembly, and did not understand the executive and legislative functions to be distinct.
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John Locke, in his
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 institutions. 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."
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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."
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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."
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Locke's executive and federative functions were to be performed by the part of government that is always operational, swiftly adapting to new circumstances 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."

Unanticipated 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."
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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
inaccurately idealized the English constitution 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."
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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 classified 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.
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Blackstone transformed these theories into something resembling constitutional law. In his
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."
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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 class -- the King, Lords, and Commons represented different segments of society with their own attributes, such as power, wisdom, and virtue. Blackstone's mixed constitution protected liberty by ensuring that each social class participated in all government decisions.