Authors: John Yoo
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Presidents achieve greatness for more than their reconstruction of the political system. Our best Chief Executives brought the nation safely through unprecedented crises and emergencies. Washington, Lincoln, and FDR remain the three greatest because they led the country through its birth, its rebirth, and its rise to great power status. Jefferson acquired the Louisiana territory, and Jackson started the drive toward the Pacific. Our Cold War Presidents patiently pursued the strategy of containment and eventually exhausted the Soviet Union. None of our great Presidents was a stranger to controversy. They relied heavily on their unique constitutional powers to take action -- the very same powers that, in other hands, could produce disaster. At the time, they were often accused of dictatorship, tyranny, and acting above the law. History has proven them right, but it has taken decades or even centuries of perspective for their vindication.
Examples of presidential greatness caution against going beyond the Constitution to restrict executive power. After Watergate, Congress enacted a series of laws, such as the War Powers Resolution, intended to restrain the "imperial presidency." But within a decade, Presidents of both parties had worked around many of these statutes, without much opposition from Congress, to restore the capabilities of their office. But suppose Congress turned serious about altering the Presidency's institutional abilities. It could attach funding cutoffs to any laws creating military units or national security functions; reenact the independent counsel law; downsize the size and scope of the White House staff; and terminate delegated authority. The powers that some Presidents have abused, however, can be the very same ones that have allowed other Presidents to become great. Reducing presidential power for fear of another Nixon or Bush (depending on one's political perspective) could also cripple another Lincoln or Roosevelt. Critics of executive power desire a risk-free Presidency, but by creating a system designed to ensure against the risks of presidential action, they would defeat the very purpose of the executive.
Efforts at reform ignore the robustness of the original constitutional design. We have had poor Presidents, perhaps more than we like to admit, and we have had abusive Presidents, though perhaps fewer than commonly assumed. Our political system allows even these bad Presidents to stymie Congress and the courts, but when it comes to an unconstitutional abuse of authority, our system has shown the capacity to respond. Andrew Johnson and Congress fought to a standstill on Reconstruction, and eventually the Radical Republicans prevailed through impeachment and the next election. A combination of Justice Department investigation, media reports, and impeachment forced Nixon to resign. Impeachment by a Republican Congress placed Bill Clinton on the defensive for his second term, while the 2006 midterm elections forced George W. Bush to compromise and negotiate with a Democratic Congress. Bush's ability to continue the war in Iraq in the face of vigorous opposition serves as a reminder both of the President's constitutional preeminence in war and Congress's political reluctance to use its power of the purse to stop him.
THE BUSH PRESIDENCY
GEORGE W. BUSH has sparked a resurgence in popular interest in presidential power. Many of our great and near-great leaders have been wartime Presidents, but war has also led others, such as Johnson or Nixon, to make critical errors of judgment and policy. Partisanship and poll ratings will give way to the passage of time, just as they did to the benefit of Harry Truman and to the detriment of John F. Kennedy. What this book shows is that the claims of dictatorship or of a President acting above the law are exaggerations no different from the attacks on other vigorous Presidents. On some questions, the Bush administration acted well within the example of past Presidents; in others, it even sought greater accommodation with the other branches. Today's conflict over presidential power does not truly arise over whether the authorities in question exist, but whether now is the right time to exercise them.
War power is the most immediate and obvious example. Like Presidents before him, Bush claimed the authority to use force to defend the national security. But unlike his predecessors, he did not use it. In the wake of the September 11, 2001, terrorist attacks, the administration sought and received from Congress an Authorization to Use Military Force (AUMF). It was sweeping, perhaps the broadest grant of war power by Congress since World War II. It authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks."
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The AUMF recognized that "the President has the authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." It was unlimited as to time or geography. Nor did Bush rely solely on his presidential power in Iraq. Again, the administration sought and received from Congress another AUMF, this time aimed at Iraq and Saddam Hussein. While not as broad as the September 11 resolution, it still granted significant power to the executive branch. Congress authorized the President to use the armed forces "as he determines to be necessary and appropriate" to achieve two objectives: "defend the national security of the United States against the continuing threat posed by Iraq" and "enforce all relevant United Nations Security Council resolutions regarding Iraq."
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Critics of the Iraq war have since claimed that the Bush administration provided misleading information to Congress. If it did so, it was nowhere as serious as President Polk's description of the events that led to the declaration of war against Mexico. But it is a mistake to think about the intelligence regarding Iraq in 2002 as the same in kind as the information about the Mexican-American War, Pearl Harbor, the Tonkin Gulf, or even Jefferson's war against the Barbary Pirates. In those conflicts, Presidents reported to Congress on events that had already occurred, and those facts either led Congress to authorize war or not. In contrast, the facts about Iraq involved prediction about the future. The decision on war did not focus on whether Iraq had aggressively acted to justify a military response, but whether the intentions and capabilities of its regime posed a sufficient threat to justify a preemptive attack. Such judgments will involve speculations, guesses, and estimates of future costs and benefits that may turn out to be wrong, but we should not confuse mistakes for a conspiracy.
If Congress were serious about claims that the executive branch deliberately misled it, it could have used its powers over funding, oversight, and legislation to influence the intelligence agencies. Select committees in the House and Senate had received classified briefings from the CIA on all covert operations and intelligence programs. If Congress believed that the executive branch deliberately manipulated information about Iraq, it could have restructured or cut funding for the national security agencies and programs. Or, ultimately, it could have impeached the President.
Putting the justification for war to one side, much of today's controversy over presidential power has settled on the conduct, rather than the initiation, of war. Critics of the Bush administration attacked the "surge" strategy of sending more troops to Iraq to secure Baghdad and its surrounding provinces. They argued that the executive branch cannot detain prisoners in the war on terrorism at the U.S. naval base at Guantanamo Bay, Cuba. They challenged the use of coercive interrogation measures on al Qaeda leaders and the establishment of military commissions for the trial of terrorists. They claimed that the National Security Agency's surveillance of the communications of suspected terrorists without a warrant, inside the United States, violated federal law and the Fourth Amendment.
Critics went to Congress to cut off funds for the Iraq war, but failed. Proposals to restrict the warrantless surveillance of suspected terrorists went nowhere. The opposition found more success in its efforts to seek legislation regulating military interrogation and trials. Critics have won some successes in the Supreme Court, which extended its jurisdiction in 2004 to hear cases arising out of Guantanamo Bay, blocked portions of the military commission rules in 2006, and expanded the right of the judiciary to review military detention decisions in 2008.
President Bush initially undertook many of these policies under his powers as Chief Executive and Commander-in-Chief. To be sure, the administration made broad claims about its powers under the President's constitutional authorities, but this book shows that it could look to past Presidents for support. Presidents have used force abroad without any legislative authorization at all, and several made the most important strategic decisions without any input from Congress. Lincoln and Roosevelt, for example, resisted or overrode efforts by Congress to interfere with their judgments about the steps necessary to protect the national security. The Emancipation Proclamation stands as a striking example of a presidential decision on the conduct of war -- to free the slaves and undermine the Confederacy's vital labor source -- which was inconsistent with Congress's preferences. Presidents have long exercised the widest discretion over the conduct of war and have fought jealously to defend their prerogatives. Congress, for the most part, has respected presidential discretion, and the times when it has not, as in the War of 1812 and the beginnings of World War II, it has done no better and sometimes much worse than the President. Congress simply does not have the ability to make effective, long-term national security decisions because of the difficulty in organizing 535 legislators and the political incentives that drive them toward short-term, risk-averse thinking.
Despite low approval ratings, President Bush succeeded in defending many of his war priorities. In Iraq, the administration won continued funding from Congress for the surge of troops, without any strings attached, such as a withdrawal date or a mandated reduction in operations. In the Detainee Treatment Act of 2005 and the Military Commission Act of 2006, Bush won support for the use of military commissions and the exclusion of the Supreme Court from reviewing the detention of terrorists. Congress did set rules for the interrogation of prisoners held by the U.S. armed forces, but it did not extend those guidelines to the CIA. Similarly, President Bush went to Congress to seek support for his warrantless surveillance program. In the Protect America Act, Congress responded by giving its temporary blessing and providing immunity to telecommunications companies that had helped carry out the surveillance after the 9/11 attacks.
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Other exercises of executive power have simply been blown out of proportion. A salient example is the issue of presidential signing statements. In 2006, a media report claimed that President Bush had used signing statements to claim "the authority to disregard more than 750 laws enacted since he took office." The American Bar Association assembled a task force that concluded that such statements were "contrary to the rule of law and our constitutional system of separation of powers." The Senate Judiciary Committee followed with hearings criticizing them as a "grave threat to our constitutional system of checks and balances." These reports would lead a stranger to this land to think that by issuing a statement when signing a bill, even one that provided an interpretation of the law or found parts of it unconstitutional, President Bush had brought down republican government.
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Careful examination of the issue shows that nothing of the sort has happened. Presidents have issued statements to explain their reasons for approving or disapproving a bill, almost from the beginning of the Republic. Jackson's lengthy message explaining his veto of the Bank of the United States was little different in purpose from a signing statement. To be sure, Presidents did not use statements frequently until the twentieth century. Beginning with Truman, Presidents issued statements that they would interpret laws to avoid causing constitutional problems, refuse to obey provisions that they believed violated the Constitution, or explain their preferred interpretation of ambiguous statutory language. By the Clinton administration, an average of between 35 and 60 were issued a year. Many of the statements discuss policy or feature political rhetoric rather than interpret legislation or comment on its constitutionality. It does not appear that courts give these declarations much, if any, weight. A more careful study of the Bush administration's practices finds that it issued signing statements challenging statutory provisions at a rate within the historical norms for postwar Presidents, though it questioned the constitutionality of more provisions per bill.
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Signing statements themselves can present reasonable defenses against legislative encroachments. In many, for example, President Bush objected to laws that required the executive branch to propose legislation to Congress -- most would agree that Article II gives the President the discretion whether to do so. In others, Bush objected to congressional efforts to vest the power to appoint executive branch officers in people or entities outside the Appointments Clause. Sometimes the administration challenged provisions ordering it to take a certain diplomatic position, vote a certain way in an international organization, or limit the use of the armed forces abroad. While Bush received criticism for signing the Military Commission Act with the proviso that he would interpret it consistent with his Commander-in-Chief authority, President Clinton relied on the same ground in refusing to obey a congressional prohibition on placing American troops under foreign commanders. A recent study finds that President Clinton issued signing statements virtually identical in substance, though fewer in number, on all of these issues.
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President Obama has issued signing statements in his first few months in office that continue the Bush practice in form and function, especially in the area of foreign affairs.