Crisis and Command: A History of Executive Power from George Washington to George W. Bush (36 page)

Lincoln's Vice President, Andrew Johnson, shows the perils of exercising constitutional powers to bring on, rather than resolve, a crisis. A Tennessee Democrat, Johnson held sharply different views on Reconstruction than the Radical Republicans. Like Lincoln, he favored a quick restoration of the South to its normal status as part of the political community. Southerners only had to pledge an oath of loyalty to the Union, hold constitutional conventions, ratify the Thirteenth Amendment, repudiate the public debts borrowed by the Confederate government, and repeal secession. Under Johnson's plan, many Republican Congressmen believed, the Southern social and economic system would remain intact. Aside from former Confederate government officeholders and military officers, who could not receive amnesty, the Southern elites would remain in charge.
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Congressional Republicans wanted a far more radical reordering of the South. They wanted to grant to black freedmen, whose fate did not figure in Johnson's scheme, equality with whites in the economy, government, and society. They passed the Freedmen Bureau and Civil Rights Acts to continue economic assistance to the freed slaves and to guarantee their equal legal rights, and proposed the Fourteenth Amendment, which guaranteed the rights of due process and equal protection against the state governments. Congress had constitutional powers at its disposal that were the equal, if not greater, than those available to Johnson. While the President was the Commander-in-Chief over the military forces occupying the South, only Congress could determine whether Southern states could reassume their standing as political equals. If the Southern states had formally left the Union, the Constitution gave only Congress the right to admit new states. If the Confederate states had simply been taken over by disloyal conspiracies, but had never lost their status as states, Congress could refuse to seat the Southern Representatives and Senators until the South properly reconstructed their governments.
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Fundamental disagreement over Reconstruction policy prompted the battle between the executive and legislative branches after Lincoln's death. Johnson vetoed the Freedman and Civil Rights Bills for upsetting the proper balance between the powers of the national and state governments and urged the Southern states to reject the Fourteenth Amendment. He allowed rebel-dominated governments to exercise civil authority in the South and assured their leaders that he would push for quick readmission to the Union. Congress was furious. Johnson, who had the unfortunate combination of a terrible temper, political inflexibility, and a zealot's fervor, responded by attacking the Republicans just as angrily as he had once attacked the rebels. Both, the President said in January 1866, were traitors. Southerners stood "for destroying the Government to preserve slavery," while Republicans wanted "to break up the Government to destroy slavery."

Johnson joined forces with his old party, the Democrats, in the 1866 midterm elections, but the Republicans prevailed. In 1867, Congress overrode the vetoes of the Freedman and Civil Rights Bills and passed a Reconstruction Act that required the Confederate states to ratify the Fourteenth Amendment and repeal all racially discriminatory laws. Congress further required the Southern states to extend to the freedmen the equal right to vote. A supplementary Reconstruction Act swept away Johnson's Reconstruction and ordered new elections and constitutional conventions.
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Just as Congress blocked Johnson's policies, Johnson used his constitutional powers to frustrate Congress. In 1865, he appointed former rebels as provisional governors in the South, freely granted pardons at their recommendation, and gave federal offices to other former rebels. His Attorney General ordered federal prosecutors to drop cases that transferred the lands of rebel officers to the Freedman Bureau for the use of freed slaves. On April 2, 1866, he issued a proclamation that the insurrection had ended, which implied an end to occupation government. As the split with Congress worsened, Johnson used his power of removal to fire federal officials, including 1,283 postmasters, to bind the executive branch to his policies.

Even implementation of the Reconstruction Acts was up to the military, which served under the command of the President. Johnson declared the Reconstruction Acts to be "without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive to those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure."
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By summer 1867, he had adopted the legal position that the military governors could keep the peace and punish criminal acts, but not remove Southern officeholders nor enforce civilian laws such as the Civil Rights Act. Johnson had effectively declared that the military would not execute the Reconstruction Acts. He had set the nation toward his minimal Reconstruction policy solely by exercising his powers as Commander-in-Chief.

Angry Republicans believed Johnson was conducting a coup. They struck back in the February 1867 Tenure of Office Act. It prohibited the President from removing any appointed official while the Senate was in session until the Senate had confirmed his successor. It required the President to explain the reasons for any removal and required Senate approval before it became official. That summer, Congress enacted a third Reconstruction Act that restored the authority of the military governors to enforce civilian laws in the South. Johnson waited until the Senate went on recess and then replaced Stanton as Secretary of War with General Grant. He fired the military governors who had used their authority under the Reconstruction Acts to remove Southern officeholders. Johnson had completely blocked congressional Reconstruction. "Yet," observes Michael Les Benedict, "Johnson had broken no law; he had limited himself strictly to the exercise of his constitutional powers."
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A Congress determined to have its way had one tool left: impeachment. An initial drive to impeach Johnson in 1867 failed, even after his State of the Union message declared that he would not enforce the Reconstruction Acts. Congress tried again after Johnson violated the Tenure of Office Act. On February 24, 1868, the House overwhelmingly impeached Johnson for violating the Act, blocking implementation of the Reconstruction Acts, and publicly vilifying Congress. House managers argued that the President could not refuse to enforce an Act because he believed it to be unconstitutional. Such power would give him, they claimed, an absolute veto over all legislation. These legal grounds joined the unstated political motives for impeachment. The Senate refused to convict by only one vote, however, with seven Republican Senators voting in favor of Johnson (dramatically retold in John F. Kennedy's
Profiles in Courage)
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Both the President and Congress had exercised their legitimate constitutional powers. Johnson had the duty not to enforce laws he believed to be unconstitutional. He had only followed the example of past Chief Executives by using his powers of appointment and removal to promote his policies. Johnson was even correct on the merits. The Tenure of Office Act violated the Constitution's grant of the removal power to the President as part of its vesting of the executive power, the issue resolved in 1789 by the First Congress.
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Still, Congress had every right to pursue its own vision of the Constitution, and if it honestly disagreed with the President, it could remove him through impeachment. While the Senate failed to convict Johnson, the impeachment process rendered his administration a shambles and convinced him to end his confrontational ways. The 1868 elections soon replaced him with Grant, the hero of the Civil War.

Johnson's example modifies the lessons of the Lincoln Presidency in several important respects. Not all Presidents who press their constitutional powers to the limits will prevail. Johnson today is ranked as one of the worst Presidents because of his racist views and his efforts to block a Reconstruction that sought to guarantee equality for the black freedmen. Eric Foner views Reconstruction as a shining moment when the South could have been remade into a racially harmonious and egalitarian society.
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Johnson set that vision back at least four years, and perhaps a century, but he could not have been so successful an obstacle without the same vigorous understanding of presidential power shared by his predecessor. When it came to the questions about the power of removal and non-enforcement of unconstitutional laws, Johnson even had the better of the constitutional arguments.

Johnson failed not because he misunderstood the scope of his constitutional powers, but because he misjudged when to use them. It could be argued that Johnson simply could not overcome congressional opposition, but what made Johnson's defeat profound was his effort to use his constitutional powers in a way that triggered his impeachment. Earlier Presidents had invoked their constitutional powers during times of great national challenge and opportunity: establishing a new government, charting a course between the Napoleonic wars, winning Louisiana and the Southwest. With Reconstruction, the great emergency that had forced Lincoln to draw on a robust vision of the Commander-in-Chief role was waning, not beginning. With complex questions about the nature of restoring the Union at hand, and with little need for swift and decisive action, the demand for the unique qualities of the executive was less evident. If Johnson had limited his opposition to political measures, without invoking his constitutional authority, Congress would have prevailed, but impeachment would have been unnecessary.

Reconstruction reaffirms another lesson about executive power: even at its greatest height, the other branches always have ample authority of their own to counter it. Johnson could block congressional policy, but he could get nowhere on his own. Congress could not choose the generals in charge of the occupation, but it could grant them broader powers over the Southern governments. Even if Johnson would not enforce the Reconstruction Acts, Congress could refuse to readmit the Southern states to the Union. If Congress disagreed so sharply over the executive branch's definition and use of its constitutional powers, it could resort to the ultimate remedy of impeachment.

Johnson failed to understand that Congress was just as wedded to its principles as he was to his. Instead of triggering a constitutional confrontation with no good outcome, he should have cooperated with Congress. The Reconstruction crisis was not an external one confronting the government, but one of his own making. The former demands that Presidents exercise their powers decisively for the benefit of the nation; the latter does not.

CHAPTER 7
Franklin D. Roosevelt

WITH WASHINGTON and Lincoln, Franklin D. Roosevelt is considered by most scholars to be one of our nation's greatest Presidents. Roosevelt confronted challenges simultaneously that his predecessors had faced individually. Washington guided the nation's founding when doubts arose as to whether Americans could establish an effective government. Roosevelt radically reengineered the government into the modern administrative state when Americans doubted whether their government could provide them with economic security. Lincoln saved the country from the greatest threat to its national security, leading it through a war that cost more American lives than any other. Roosevelt led a reluctant nation against perhaps its most dangerous foreign foe, an alliance of fascist powers that threatened to place Europe and Asia under totalitarian dictatorships. To bring the nation through both crises, FDR drew deeply upon the reservoir of executive power unlike any President before or since -- as demonstrated by his unique status as the only Chief Executive to break the two-term tradition.
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Roosevelt came to the office in the midst of the gravest challenges to the nation since the Civil War. The most obvious and immediate crisis was the Great Depression. FDR placed the President in the role of legislative leader and produced a dramatic restructuring of the national government, even though the Depression, as a breakdown of the domestic (and global) economy, fell within the constitutional authority of Congress. Large Democratic majorities in Congress expanded federal regulation of the economy beyond anything before seen in peacetime. Regulation of prices and supply, product quality, wages and working conditions, the securities markets, and pensions became commonplace where they had once been rare. Social Security was not just one of the New Deal's most important planks, but the expression of the whole platform. The federal government would declare its responsibility to coordinate and regulate economic activity to provide stability. It had always exercised broad economic powers during wartime, but FDR made management of the economy by a bureaucracy of experts a permanent feature of American life. While the Republican Presidents who had dominated elections since the Civil War had left economic decisions to the market, FDR placed the federal government in the role of providing economic as well as national security.