Authors: John Yoo
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If Congress could enact legislation that successfully anticipated all possible circumstances that the nation might confront, or could act swiftly and decisively itself, a separate executive might be unnecessary. Those who wrote and ratified the Constitution, however, viewed untrammeled legislative power with deep suspicion. More often than not, the dominant state legislatures of the Revolution had failed to organize effective executives and had fallen into interest-group politics. The Continental Congress, which had no executive or judicial branch, suffered paralysis. Erecting an independent executive, and an independent judiciary, would allow the nation to act effectively and restore balance to its political system.
Use of presidential power does not signal failure -- otherwise, Presidents like Washington, Jefferson, Jackson, Lincoln, and FDR would not merit their reputations today. Nor does executive action guarantee success. Instead, it sets the foundation for a President's ability to achieve. Our greatest Chief Executives have all vigorously exercised the powers of their office to the benefit of the nation -- establishing the independence of the executive branch, purchasing Louisiana, blocking the politicization of the national bank, winning the Civil War, entering World War II, or containing the Soviet Union -- but only in times of crisis. A branch headed by a single person, as Alexander Hamilton recognized, can act swiftly and decisively because it is not subject to the crippling decentralization of Congress. Emergencies and foreign affairs sit at the core of the purpose of the executive, and no President has successfully responded by passively following Congress's lead and forsaking his right to independent action.
Presidents have often wielded their powers in the face of congressional silence, and sometimes they have acted contrary to Congress to advance what they perceived to be the national interest. Obviously, Presidents will find governing easier when their political party enjoys large majorities in Congress. Some scholars link the growth in the Presidency to its position as party leader, and attribute the loss of executive influence to efforts to govern through an administrative state instead.
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But even under unified government, Presidents have had to rely upon their constitutional powers when acting at odds with the wishes of their legislative supporters. Jefferson over-came constitutional qualms about the Louisiana Purchase; Lincoln rejected congressional Reconstruction plans; FDR tried to pack the Court and unseat leading Democrats in the South. Congress can still frustrate a President of the same party and doom him to failure, as was the case with Jimmy Carter and Herbert Hoover. Party government remains an important feature of the power of the modern Presidency, but it can act as a straightjacket just as easily as a lever.
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The same dynamic describes the relationship between the Presidency and the administrative state. Agencies facilitate the implementation of executive branch policy. Without the main cabinet departments, the President could not achieve priorities on finances, defense, law enforcement, or foreign policy, not to mention the broad array of decisions on economic and social issues delegated by Congress. On the other hand, the agencies create bureaucratic routines that hem in a President's ability to achieve swift change. While they are designed for rational, comprehensive planning, agencies and their processes inherently resist the ideas of a new President. The inertial weight, or even the outright opposition, of the bureaucracy -- composed, after all, of career civil servants who have their own policy interests -- is compounded by the emergence of powerful interest groups, congressional oversight committees, and a media culture focused on conflict. Presidents have responded by attempting to strengthen their control over the administrative state through their constitutional powers of removal, just as Congress has sought to keep agencies within its own political orbit.
While executive power is more general and open-ended than other powers in the Constitution, it is not undefined. Its general nature does not automatically subject it to congressional control, any more than the vesting of the "judicial power" in the federal courts makes judges the servants of Congress. The bulk of executive power rests in foreign affairs and national security, where it is most suited to effective action. During peacetime, the Constitution limits the Presidency to enforcing the law (which includes, as the highest law, the Constitution itself) and managing the executive branch. While executive power has grown throughout American history, its most vigorous use appears sporadically. Only crises and challenges call it forth.
World War II and the Cold War broke this pattern of peacetime quiet punctuated by presidential action in times of crisis. The postwar growth in presidential power is not the result of the inexorable and unwarranted aggression of an imperial executive, but America's changing place in the world and its new ambitions at home. Foreign policy has unquestionably become of vital importance to the nation. By the end of World War II, American leaders finally understood that events abroad dramatically affected the nation's security as advances in transportation, communication, and technology eliminated the distance and security that the oceans once provided. Committing to the defense of Western Europe and East Asia required the permanent mobilization of a large standing military. Containing the Soviet Union and maintaining a liberal international order based on free trade and democracy demanded the ability to exert military and diplomatic force along many dimensions. As the executive was designed to be continually "in being" and to have the leading constitutional role in foreign affairs, presidential power naturally increased to match the demands on the government. What marks the postwar period as a sharp break with the past is not presidential unilateralism; rather, it is the change in circumstances that demanded executive initiative. It was not the Presidency that became imperial, it was the United States that became an empire.
Rising expectations of government prompted a corresponding jump in presidential power at home. The New Deal's goal of guaranteeing economic security demanded a massive expansion of federal economic and social regulation. In the 1960s and 1970s, Congress broadened the role of the federal government into civil rights, the environment, consumer safety, poverty, housing, and crime. Extensive intervention called for bureaucratic resources that Congress simply does not have and would not want. Delegation to the executive branch agencies served multiple purposes. It allowed Congress to shift responsibility for decisions that are politically controversial, call for difficult choices based on technical and scientific information, and involve high but unpredictable stakes. Members of Congress could focus their limited time and energy on spending programs, earmarks, and tax breaks for constituents and interest groups who supported their reelection.
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A second lesson of this book is that the notion of an unchecked executive, wielding dictatorial powers to plunge the nation into disaster, is a myth born of Vietnam and Watergate. Congresses have always possessed ample ability to stalemate and check an executive run amok. Congress regularly ignores executive proposals for legislation, rejects nominees, and overrides vetoes. It can use its power over legislation, funding, and oversight to exercise significant control over the administrative state. There would be no agencies, no delegated powers, and no rule-making without Congress's basic decisions to create the federal bureaucracy. It can use these authorities even at the zenith of presidential power: foreign affairs. Congress can cut off war funding, shrink the military, stop economic aid, and block treaties. It used its sole control of the purse to limit the Mexican-American War and to end the Vietnam conflict, for example.
Of course, cooperation between the President and Congress on national security policy is politically desirable, but it has never been constitutionally necessary. As we have seen, our greatest Presidents have, at times, acted contrary to Congress to protect the nation. It was their judgment that the Constitution did not require the government to sit on its hands until both the President and Congress agreed on every particular. It is no doubt correct that requiring legislative consent would promote greater deliberation and slow down hasty decisions. But the collective-action problems that make the legislature slow bear costs, too -- costs that can become acute when national security is involved, especially in light of technological change that has made weapons swifter and vastly more destructive. Expanding the numbers involved in decision-making does not guarantee that the results will prove more accurate. Congress makes mistakes just as the executive does, and the costs of national security paralysis might outweigh any marginal decrease in errors.
Political scientists are beginning to appreciate that the model of an institutionally weak executive cannot explain the growth of presidential power during the last half century. Recent works applying game theory to the separation of powers have recognized a large area for presidential action. According to these studies, the President will most often be able to succeed in areas where the stakes are high, the issues are complex and unpredictable, or political controversy means large portions of the electorate will disagree with any government decision. Congress has far more interest in awarding discrete benefits to constituents and supporting interest groups than in risking a serious mistake of national policy or generating political opposition. If the President acts first, Congress will have to take an affirmative step to overrule him. A presidential veto of that legislation will be sustained if more than one-third of the Senate agrees with him. Not surprisingly, legislative proposals to overrule executive orders rarely succeed.
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These approaches cannot work without a proper understanding of the President's constitutional authorities. Take the effort to model the President's role in the legislative process. During the 1980s and 1990s, political scientists developed rigorous frameworks to understand the movement of legislation through Congress. In these models, the role of the President was often an afterthought, an oversight since corrected by the work of the last decade. These scholars identify the conditions in which presidential vetoes, or even the threat of a veto, will win policy concessions from Congress.
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For that variable to be significant, the President must have the power to veto legislation on policy, rather than just constitutional, grounds. Without that change in the understanding of the President's veto power, his ability to influence legislation would be dramatically reduced. Scholars also observe that Presidents prevail more often in foreign affairs than any other significant area. As with the veto, this would not be possible without an understanding of the President's constitutional authorities. One singular reason that the President may win more often in foreign affairs is simply that his constitutional powers, and hence his freedom of action, are greater beyond the nation's borders.
Exercise of these constitutional powers does not guarantee presidential greatness or success. Progressive scholars of the first half of the last century believed that the President should the play the role of a political hero who would represent the people better than a Congress beset by special interest groups. Chief Executives would use their constitutional powers to restore democracy and expand the powers of a national government that would respond to the people's wishes. But Andrew Johnson, Lyndon Johnson, and Richard Nixon demonstrated that not everyone would rise to this vision of the reformer President. Executive power does not inexorably bring progress. Constitutional power may not be enough to help the President overcome the many demands and obstacles placed in his way by the modern political system, and it certainly does not prevent a President from making poor decisions.
Yet, executive power remains the wellspring of a President's ability to play a transformative political role, which remains a key distinction between the great and the merely good. Stephen Skowronek has persuasively argued that the Presidency's political authority moves in cycles. Certain Presidents are "reconstructive" -- they repudiate a vulnerable political order, often shown to be incompetent during times of crisis, and replace it with a new one. Other Presidents maintain the existing order and governing coalition, with their success declining rapidly if events have undermined the regime. A small set of Presidents come to office opposed to the existing political system, but that system is resilient, and efforts to preempt it will lead to conflict and often failure. A President's success depends on his matching his political "warrants" -- in other words, his electoral and political support -- to the circumstances of his day. According to Skowronek's retelling of presidential history, a deep structure generates recurring cycles of reconstruction, maintenance, and ultimately collapse. As the nation becomes institutionally richer, more populous, and more sophisticated, it becomes difficult for Presidents to overthrow the existing political order.
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The executive's constitutional powers provide the foundations for this dynamic. Skowronek's list of reconstructive Presidents is the same as this book's: Jefferson, Jackson, Lincoln, and FDR. Both lists track the Presidents usually rated as the greatest, and those elections considered pivotal in American history.
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This book examines constitutional, rather than political, authority, but it is significant that the Presidents who established new governing regimes, some lasting almost 70 years (Lincoln), were also those who wielded their constitutional powers in the broadest ways. Because these Presidents came at the head of parties elected to sweep away a discredited political regime, their constitutional powers were critical to replacing the existing order. Executives dependent on Congress would find it far more difficult to establish the durable political orders of the Jeffersonian, Jacksonian, Republican, or New Deal periods. Congressional efforts to limit presidential power often represent the efforts of a status quo regime to prevent the rise of its successor.