Crisis and Command: A History of Executive Power from George Washington to George W. Bush (59 page)

RETURNING TO FIRST THINGS

BUSH'S REPUTATION WILL depend on whether future historians judge his exercise of presidential power to have been justified by the circumstances. If the September 11, 2001, attacks marked the emergence of a serious foreign threat to the nation's security, the invocation of broad presidential powers will have been appropriate. Presidents like Lincoln and FDR may have gone too far at times, but we forgive them their trespasses because they led us through the Civil War and World War II. If it turns out that the United States had overreacted to what was essentially an isolated event, the exercise of presidential power will prove to have been unnecessary and counterproductive. The difficulty in reaching a judgment now is that we are still living through the period of threat, and we cannot judge ex post whether the long-term reorientation of national security powers was necessary to meet it. This is not to argue that Bush is destined to rank among the great Presidents or even those considered above-average. It means that only when we have the benefit of distance will we know whether Bush's aggressive use of executive authority was too much, too little, or just right.

Understanding the contingency of our current circumstances brings us back to where we began, the purpose of the executive. As originally conceived, the need for the executive arose to respond to unforeseen dangers, unpredictable circumstances, and emergencies. It was given the virtues of speed, secrecy, vigor, and decisiveness to most effectively marshal society's resources in a time of crisis. The executive could correct for the instability, fractiousness, and inability to organize and decide (caused by what we today think of as transaction costs of a republican legislature) under time pressure. If the circumstances demand, the executive can even go beyond the standing laws in order to meet a greater threat to the nation's security.

It remains an open question whether the Constitution incorporated this prerogative. Hamilton believed that Article II's vesting of the executive power in the President necessarily included the ability to meet any challenge. To him, this power ought to "exist without limitation because" the "circumstances that endanger the safety of nations are infinite." There was no prerogative in the Lockean mold, only a President with open-ended powers in time of emergency. This broad conception of the executive underpinned the broader Hamiltonian program. A President of broad powers would guide the national government by developing proposals, managing legislation, and vigorously enforcing the law and setting foreign policy. In contrast, Jefferson believed that the President's ability to access the prerogative existed independent of the Constitution. To him, the natural right of self-preservation allowed the President to act beyond the Constitution itself when defending the nation. Whereas Locke believed that the executive would have to appeal to the heavens in the event of an exercise of the prerogative, Jefferson believed that an appeal to the nation was in order.

The prerogative allowed Jefferson to keep his devotion to a strict interpretation of the Constitution. If the prerogative could serve as a safety valve when emergency placed the government under stress, the Constitution would need no stretching. The government's powers would remain limited, rather than permanently extended, and individual liberty and hopefully state sovereignty would be preserved. The process for confirming the executive's use of the prerogative, an appeal to the people, advanced Jefferson's agenda to make the President the democratic representative of the nation as a whole. Jefferson did not believe that the approval of Congress or the courts alone was necessary, except insofar as they represented the will of the people.

History suggests that Hamilton had the better argument. The prerogative faces serious, perhaps fatal problems, chief of which is that it requires the executive to violate the Constitution. If the people bless executive lawbreaking, then they undermine the very purpose of the Constitution to bind future majorities. Although faced with the most serious threats to the nation's security, Lincoln and FDR did not claim a right to act outside the Constitution. While Lincoln suggested on several occasions that it might be necessary to violate the Constitution to save the nation, he never invoked the prerogative. In fact, he carefully argued that his every action, from using force against secession to the Emancipation Proclamation, was justified by his constitutional authorities. Roosevelt, too, never claimed the prerogative, and justified his actions by his authority as Commander-in-Chief. By the Cold War, the debate seemed to be over -- the Constitution accommodated the need to respond to extraordinary events through the President's executive power.

At first glance, it might appear that this understanding of the Constitution could only work to the benefit of the President. It allows him to claim a reservoir of power to meet any serious threat to the national security. But subordinating the prerogative to the law may have come with costs as well -- it has raised public expectations of the President to the point where no mere mortal can satisfy them. If the President has the constitutional authority to respond to any emergency, then the failure of the government to meet the latest national problem must be his fault.

A second effect may be the unwillingness of Presidents since FDR to challenge the Supreme Court. Presidents no longer claim an independent right to interpret the Constitution differently from the judiciary, giving up the inheritance of Jefferson, Jackson, Lincoln, and Roosevelt. There are understandable political reasons for this, but perhaps a deeper constitutional explanation lies in presidential adoption of the Hamiltonian theory of the executive. If the President accesses extraordinary power from the Constitution, he may seek judicial approval in order to address concerns that he is interpreting the Constitution solely for his own benefit. It is not clear whether this bargain is to the long-term benefit of the institution; abdicating the right to interpret the Constitution, in light of the President's obligation to enforce the laws, ultimately places the definition of his duties and powers solely in the hands of another branch. Presidents may have only won themselves the freedom to act in the short term, but they have left the long-term success in the hands of others.

The fundamental question of the prerogative lends presidential power a tragic quality. Due to the Constitution's design, the political system has great difficulty responding to unforeseen circumstances, fast-moving events, or decisions that require technical expertise or run high political risks. It will fall to the President to act at these times, which most often arise where the nation's foreign relations and national security are at stake. In exercising their constitutional powers, Presidents by definition act against the web of congressional statutes, court decisions, agency regulations, and interest groups that make up the political status quo. Invocation of executive authority is guaranteed to trigger a sharp response by the supporters of the governing regime.

In their own time, our greatest Presidents have been the subject of terrible attacks, ranging from accusations of personal immorality to the formation of opposition political parties. Nevertheless, our greatest Presidents have had to act because they have judged their actions necessary to benefit the nation or protect it from harm. Presidential power takes on a tragic dimension when our Chief Executives exercise their constitutional powers knowing that it could lead to their political ruin or damage their historical reputations. But as we have seen, presidential power moves in cycles, change is no doubt certain, and it is change that can bring out greatness in our Presidents.

AFTERWORD

"YOU NEVER WANT a serious crisis to go to waste," Rahm Emanuel, the new White House Chief of Staff, said in the early months of the Obama administration.
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Barack Obama's election as America's forty-third President was historic for many reasons. Obama entered office amid what may be the worst economic recession since the Great Depression. Gross domestic product estimates nose-dived a stunning 6.3 percent in the fourth quarter of 2008 and fell another 5.7 percent in the first three months of 2009.
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The stock market fell about one-third in 2008, destroying trillions in private wealth.
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The unemployment rate leapt from 4.6 percent to 7.1 percent in 2008 -- 2.7 million Americans lost their jobs, General Motors and Chrysler went bankrupt, while industrials like Alcoa and DuPont announced mass layoffs. Unemployment continued to rise after the inauguration, continuing upward to more than 9 percent by the middle of 2009.
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Only the recessions of 1974-75 and 1982-83 threw a higher fraction of postwar Americans out of work.
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Obama's assumption of office in the midst of trying economic times recalled the transitions between Hoover and FDR and between Carter and Reagan.

Foreign dangers also greeted the new President. Obama took the oath of office while the nation fought wars in Iraq and Afghanistan. Al Qaeda, which, along with its Taliban allies, continues to destabilize nuclear-armed Pakistan, remains a threat.
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North Korea, the most brutal totalitarian dictatorship on the planet, successfully tested a nuclear weapon and continues its quest for a long-range ballistic missile capable of reaching the United States.
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And Iran, another consistent foe of the United States, continued its own efforts to acquire nuclear weapons and ballistic missile technology in defiance of international sanctions.
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The United States transferred power between the two major political parties during the Cold War, but it did not elect new regimes during any previous "hot" war except for the elections of Eisenhower during the Korean War and Nixon during the Vietnam conflict.

But as Emanuel's quip recognizes, crisis presents opportunity. Obama is the first African American elected to the nation's highest office, giving many hope of a post-racial future. His election might also portend, in the view of some, one of those rare realignments in American politics that have accompanied the elections of several of the great Presidents studied in this book -- Washington, Jefferson, Jackson, Lincoln, FDR, and Reagan. Not only did Obama win the 2008 election decisively, by 52-46 percent of the popular vote and 365-173 in the Electoral College, but Democrats picked up 6 seats in the Senate and 20 in the House of Representatives. After the Minnesota Supreme Court declared Al Franken the winner of a Minnesota Senate seat in June 2009, Democrats gained a filibuster-proof majority in the Senate, in addition to their already secure 254-173 majority in the House.
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Obama, however, has a difficult course to chart. While he and his party won large majorities, he must navigate between overreaching and timidity. Americans of all stripes celebrated that the United States had elected the first African American to the Presidency. But Obama should resist the temptation to view his victory as a fundamental realignment of the political system. Obama is only the second Democratic presidential candidate to win more than 51 percent of the vote since FDR in 1944, and the first since Lyndon Johnson's landslide (Carter won in 1976 with only 50.1 percent). One of the Electoral College's effects is to magnify the political legitimacy of the winner beyond that bestowed by the popular vote alone. For example, even though he never won a popular majority, Bill Clinton won the 1992 election by 370 electoral votes to 168 for President George H. W. Bush, and four years later he won 379-159 over Senator Bob Dole.
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Realignments take more than a victory at the polls; they only occur after a critical election that represents a sea change in the nation's politics. Only two have occurred in the twentieth century: the elections of FDR in 1932 and Ronald Reagan in 1980. FDR's election rejected the laissez-faire philosophy of the Republican Party that had dominated politics since the Civil War. The 1932 realignment introduced the liberal New Deal state at home and an interventionist foreign policy abroad. The Reagan vote signaled skepticism of activist government, the rise of free market economics, and a focus on tax cuts, but maintained a muscular approach to foreign affairs. The only other realignments that scholars can agree upon occurred in 1800, 1828, and 1860.
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Misreading an electoral realignment can cause a President to over-reach without sufficient political support. FDR thought the results of the 1932 landslide justified his efforts to pack the Supreme Court and to challenge incumbent Southern senators in the midterm elections. The New Deal stalled, and the economy would not recover until World War II. President Nixon believed that he represented a silent majority against a hostile, liberal Congress; he mistakenly turned to executive authority against his domestic political opposition. More recently, President Clinton read his 1992 election as a mandate to pursue higher taxes and a national health care plan that proved deeply unpopular, sparking the Republican takeover of Congress in 1994.