Crisis and Command: A History of Executive Power from George Washington to George W. Bush (8 page)

The Federalists responded that to limit government power in emergencies would be foolhardy. These powers, Hamilton argued early in December 1787, "ought to exist without limitation."
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Echoing Locke, he observed that the nature and scope of emergencies were "impossible to foresee." Because the "circumstances that endanger the safety of nations are infinite," Hamilton warned, "no constitutional shackles can wisely be imposed on the power." Agreeing with his
Federalist
coauthor, Madison chimed in: "The means of security can only be regulated by the means and the danger of attack."
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Madison concluded, "It is vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than vain; because it plants in the Constitution itself necessary usurpations of power." A Constitution with a weak government and executive, some Federalists argued, posed an even greater danger of tyranny, for to survive in a dangerous world, the nation would be forced to resort to actions the Constitution forbade. Insecurity was ever-present in the Framers' minds, for the new republic was hemmed in to the North by the British and to the South and West by the Spanish.

This argument played into Anti-Federalist concerns about a centralized government that mingled specific powers. Federalists admitted that the Constitution did not fully separate legislative, executive, and judicial functions, but pointed to the British and state constitutions that granted the executive a veto over legislation. A better safeguard than complete separation, they argued, was to give each branch incentives and the authority to check each other. In
Federalist 51
, Madison wrote that power needed to align with self-interest: "Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place." Competition among the branches would present the best protection. "The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others."
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Madison's reliance on structural checks and balances was a 180-degree turn from the enthusiasms of the Revolution. As Wood has emphasized, the revolutionaries put their faith in legislatures as exemplars of popular sovereignty. The people could do no wrong, so why restrict the power of their representatives? By 1788, Federalists had come to see unlimited legislative power as presenting its own problems. In a democracy, James Madison wrote in
Federalist 48
, the legislature held broader powers and access to the "pockets of the people." He warned that "it is against the enterprising ambition of [the legislature], that the people ought to indulge all their jealousy and exhaust all their precautions."
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He had seen the "impetuous vortex" of the legislature in action in Virginia and Pennsylvania, and thought a strengthened executive was needed to guard against unwise popular passions acting through the legislature. "In republican government the legislative authority, necessarily, predominates." So, "the weakness of the executive may require, on the other hand, that it be fortified."

Hamilton followed Madison's contributions to
The Federalist
with a more detailed and sophisticated discussion of the executive branch. While the divisions within a legislature might encourage deliberation, they also tended to subject government decisions to "every sudden breeze of passion" or "every transient impulse," especially those created by the flattering "arts of men."
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Hamilton saw that legislative sovereignty had its drawbacks, when the legislature sold out the long-term common good for short-term popularity or political gain -- a conventional idea today, but a radical one then. This situation called for executive intervention. A vigorous executive could protect against those "irregular and high-handed combinations which sometimes interrupt the ordinary course of justice," and would provide a security against "enterprises and assaults of ambition, of faction, and of anarchy."
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An executive did not owe an unjustified and "unbounded complaisance" to every sudden breeze of popular passion, nor did he have obligations toward the "humours of the legislature." A popularly elected executive serving a set term in office could block "imperious," impetuous, or unwise legislative acts that merely catered to a popular mood. In his famous discussion of judicial review in
Federalist 78
, Hamilton used the same logic: each branch owed its ultimate constitutional responsibility to the people, not to the legislature, and could use its unique powers to negate unconstitutional actions of the other branches.

The revolutionary state constitutions had created obstacles to good government, persuading the Convention delegates that a strong executive and republican government were not incompatible but mutually reinforcing. "A feeble execution is but another phrase for a bad execution," Hamilton argued in
Federalist 70
, "and a government ill executed, whatever may be in theory, must be, in practice, a bad government."
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"Good government" required "energy in the executive," and a vigorous President was now seen as "essential to the protection of the community from foreign attacks" and "the steady administration of the laws."

Energy, in turn, depended on four pillars: unity, duration, financial support, and "competent powers." First was "unity" in office. Concentrating executive power in one person would bring "[d]cision, activity, secrecy, and dispatch," Hamilton wrote, echoing Machiavelli. To diffuse executive power among multiple parties, or to require the approval of a council of state, would endanger virtues needed for good government. Authority would be weakened, and confusion among many opinions would reign, frustrating the government's ability to respond to "the most critical emergencies of the state." A plural executive would "conceal faults and destroy responsibility," allowing blame for failure to be shifted and avoiding accountability of punishment by public opinion. A "cabal" within a council would "enervate the whole system of administration" and produce "habitual feebleness and dilatoriness." Hamilton pointed out, insightfully, that the British constitution had established a council precisely in order to hold ministers responsible for mistakes, to maintain the fiction that the King could do no wrong. Under a republican government, the buck should stop with the chief executive, who should not be hampered with divided responsibility, nor free to deflect blame onto a committee. "A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad and are almost always a cloak to his faults."
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Federalists in the state ratification conventions amplified Hamilton's appeal. In the Pennsylvania ratifying convention, James Wilson observed that "we well know what numerous executives are. We know there is neither vigor, decision, nor responsibility in them."
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The Constitution placed executive power in a "single magistrate," so as to bring "strength, vigor, energy, and responsibility" to the execution of federal law.
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Governor Randolph, who had disagreed in Philadelphia, now concurred in Virginia: "All the enlightened part of mankind agree that the superior dispatch, secrecy, and energy with which one man can act, renders it more politic to vest the power of executing the laws in one man."
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The second pillar of executive power was duration in office. In all but two of the revolutionary states, executives were chosen annually. "Where annual elections end, tyranny begins," went the revolutionary era slogan. Most states also placed term limits on their executives to prevent "the danger of establishing an inconvenient aristocracy," in the words of the Pennsylvania constitution. Federalists rejected the idea of term limits because short terms contributed to instability, leading to rule by the whim of the majority. In
Federalist 71
, Hamilton explained that a longer term would promote stability as well as "the personal firmness of the executive magistrate, in the employment of his constitutional powers." A longer term with the opportunity for reelection gave a President the time to "plan and undertake the most extensive and arduous enterprises for the public benefit." If his term were too short, popular opinion would sit foremost in the President's mind, and short-term political gain and hopes for reelection would come before the public interest. Longer terms created less rotation in offices and shifts in policy as new Presidents took office. A "change in men" would create "a mutability of measures."

Eligibility for reelection would allow the nation to gain from the experience and qualities of successful executives. The two-term tradition took hold with Washington and was only codified after Franklin Roosevelt's unprecedented four victories. For the Federalists, the prospect of reelection would encourage the chief executive to pursue policies in the broader public interest. Influenced by David Hume, the authors of
The Federalist
designed a system of government that would harness private interest to the national benefit.
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This was nowhere more true than in the design of the Presidency. Hamilton described "the love of fame" as "the ruling passion of the noblest minds." Pursuit of fame would encourage Presidents to confront difficult challenges, but only if they could win reelection and their labors be rewarded.

The third pillar was "adequate provision for its support." The Constitution removed the President's salary as a tool of legislative gamesmanship by prohibiting its change during his term. An irreducible salary and lifetime appointment are regarded as the foundation for the independence of federal judges. The Framers wanted the President to be accountable to the people, but they also wanted the President to be as independent of Congress as the courts. "The Legislature," Hamilton warned, "with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will, as they might think proper to make him."
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Congress has more such authority over judges, as it could theoretically raise judges' pay in exchange for favorable decisions, or punish the courts by never raising salaries during a judge's lifetime. A President's guaranteed salary for a four-year term gives him somewhat greater freedom from congressional control.

The fourth pillar of the Presidency was "competent powers," both enumerated and explicit, and unenumerated and inherent. In beginning his discussion of the President's powers in
Federalist 72
, Hamilton observed that the "administration of government" falls "peculiarly within the province of the executive department." It included the conduct of foreign affairs, the preparation of the budget, the expenditure of appropriated funds, and the direction of the military and "the operations of war." Officers who exercised these powers were assistants to the President who should be appointed by the executive and "be subject to his superintendence." Both, however, were constructions that came from no specific grant of authority in the constitutional text, only Article II's vesting of the general executive power in the President.
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Chief among the President's enumerated powers was law enforcement. "The execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate,"
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Hamilton observed. The general grant of the executive power and the duty to "take Care that the Laws be faithfully executed" both restrict and empower the President. They make clear that the President cannot suspend the law of the land at his whim, as British kings had, but they also give the President authority both to enforce the law and to interpret it. Enforcing the law gives the President the right to compel the obedience of private individuals, and even states, to the Constitution, treaties, and acts of Congress. At critical times in American history -- the Washington and Jefferson administrations, the Civil War, the civil rights revolution -- Presidents have even called on military force to fulfill this constitutional obligation.

Enforcement implies interpretation. In order to carry out the laws, an executive must determine their meaning. Sometimes those laws will be clear, as when the Constitution sets the minimum age for a President, but more often than not, the laws are ambiguous or delegate decision-making to the executive. Judicial review usually arises after a law's passage and enforcement, and it requires that a case be brought. The executive must often interpret the laws before a dispute reaches the courts. In situations where a law creates no private right to sue, or the constitutional issue involves a political question immune from judicial review, the courts may never even be able to take up a case that raises the right question, effectively giving the executive or Congress the final say. With the current move to judicial supremacy and the decline of the political question doctrine, the courts are, however, choosing to address more such issues of law.

Hamilton regarded the gravest threat to the separation of powers to be the "legislature's propensity to intrude upon the rights and to absorb the powers of the other departments."
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Skeptical of "a mere parchment delineation of the boundaries," Federalists believed instead that each branch needed "constitutional arms for its own defence." For the executive, that weapon is the veto. Today, Presidents often veto bills on policy grounds, needing the support of only 34 Senators to prevail. More often than not, constitutional objections are left to the courts. This is almost the reverse of the Framers' expectations. In
Federalist 73
, Hamilton explained that the veto would allow the President to deflect "an immediate attack upon the constitutional rights of the executive." Blocking an act of Congress would have been regarded at the time as aggressive for courts, but not Presidents. Between 1789 and 1861, Presidents vetoed roughly two dozen bills for constitutional reasons; the Supreme Court struck down only two.
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Jefferson even doubted whether he could veto a law for anything but constitutional reasons. Under this view, if a bill only made bad policy, a President had no choice but to sign it. This problem did not trouble Publius. The veto would not just serve as a "shield to the executive" but would "furnish[] an additional security against the enaction of improper laws." For him, the President could veto laws because they were too partisan, too hasty, or "unfriendly to the public good."
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