John Yoo, Crisis and Command: A History of Executive Power from George Washington to George W. Bush (New York: Kaplan Publishing, 2010), 544 pp., $29.95.
[amazon 1607145553 full] ARTICLE II of the United States Constitution is very vague on the extent of the president's power. All it says is that "the executive power shall be vested" in the president and that "the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States." Since we now have a very powerful modern presidency, it has been the historical experience of the past two centuries that has clarified and filled out the brief words of the article.
John Yoo has set out to explain what has happened to presidential power since its beginnings in 1789. Yoo is a professor of law at Berkeley and the author of some controversial memos as a member of the Office of Legal Counsel in the Department of Justice in the administration of George W. Bush. Since Yoo's robust view of presidential power is well-known, any history of the presidency written by him might initially seem suspect and agenda driven. He realizes only too well that his book is apt to be read "as a brief for the Bush administration's exercise of executive authority in the war on terrorism." But if it is a brief for an expansive understanding of presidential authority, it is a remarkably persuasive one.
Although Yoo has mastered an extraordinary number of historical and political science studies of the American presidency, his book is not a full-blown account of the presidency from its beginnings to the present, including all its personal and political aspects; that would make for a far bigger and different book. Instead, Yoo's account is a highly focused and nicely compressed constitutional history of the office. Like most scholars, Yoo favors those presidents-such as Washington, Jackson, Lincoln and FDR-who aggressively asserted and expanded their constitutional authority, especially at times of challenge and crisis. These are the presidents whom most historians lump among the greatest. In other words, for Yoo, executive power is not a problem that has to be explained away or denied; instead, it is a fact of history, a fact that has great constitutional legitimacy. "Presidential power," he says, "has grown as the nation's power has grown, both in constitutional law and in prestige and substantive power."
AMERICANS IN 1789 had little knowledge of what the office of the presidency might become. Despite being colonial subjects of the British monarchy, they had never really experienced a single national executive. They were familiar with the king's authority largely through his many vicegerents, the several royal governors. Indeed, with independence, they initially rejected any semblance of a single national executive.
Following the break from Great Britain, the thirteen separate states formed a treaty called the Articles of Confederation, something resembling the present-day European Union. Under the Articles, the Continental Congress, in which each state had an equal voice, became the nation's executive. The Congress actually replaced the king in the empire: it possessed most of the former king's prerogative powers, including the right to determine peace and war, maintain armed forces, send and receive ambassadors, settle disputes between states, establish post offices and regulate the value of coins. Precisely because the British king could not tax or regulate trade without the consent of Parliament, the Congress likewise was unable to do so. Congress had a president, but he was not an independent executive, merely the presiding officer.
When the framers, in the Convention of 1787, came to create the executive in the new Constitution, they had little to go on except the model of the British monarch. In April of that year, when George Washington asked James Madison what plans he had for the executive, Madison replied that he had "scarcely ventured as yet to form my own opinion either of the manner in which [the executive] ought to be constituted or of the authorities with which it ought to be cloathed." Through much of the convention, Madison and most delegates assumed that the powers of appointment of ambassadors and judges, and the conduct of war making and foreign affairs, would belong not to the president, but to the Senate, which Madison hoped would be proportionally representative and not under any state influence.
However, following the Connecticut Compromise-which gave each state two senators elected by the state legislators-nationalists like Madison decided that some of the powers of the now state-dominated Senate needed to be taken away and given to the president. So, in the end the Senate would only share in the appointment of officials and treaty making, and the presidency emerged as a latently very powerful office; indeed, chosen by electors independent of the legislature, with a four-year term, no hindering privy council and a limited veto, the president was more powerful than any of the state governors at the time. Perhaps some framers even assumed that the president had inherited all those prerogative powers that the king had formerly held, except for those explicitly given to Congress in Article I, Section 8, including the power to erect post offices, create courts and declare war.
THE PRESIDENTIAL office was bound to remind Americans of the king they had just cast off. John Rutledge, a delegate and former governor of South Carolina, warned the Convention that "the people will think we are leaning too much towards Monarchy." But the Convention resisted such warnings and went on to make the new chief executive so potentially strong, so kinglike-only because the delegates expected George Washington to be the first president.
Without Washington's determination to give the office energy and independence, as Yoo points out, the presidency could have developed very differently. During Washington's first term, the Senate came close (Vice President John Adams broke a tie) to requiring executive officers appointed with its consent to be removed only with its approval. If Senate consent for the removal of executive offices had been established, it would have led to a quasi-parliamentary system. Instead, Washington made clear that he was the sole chief executive, and one with substantive powers. Not only did he believe that he had the right to determine the constitutionality of legislation, which in his mind was the rationale for vetoing laws, but he assumed that his responsibility to "take Care that the Laws be faithfully executed" included the power to direct all officials, even state governors, to enforce federal laws.
He centralized decision making in his office and treated all subordinates as part of a unitary executive branch with himself at the top. Keenly aware that he was setting precedents for the future, he worked hard to make the president the dominant figure in the government.
That was especially true in international affairs. After several futile efforts to get the Senate's advice on drafting a treaty with some Indian tribes in 1789, he gave up and thereafter simply sent negotiated treaties to the Senate for their consent only. When he came to issue his Proclamation of Neutrality in 1793, which kept America out of the French Revolutionary Wars, he did not even bother consulting the Senate, and thus further established the president as the central authority in the conduct of international relations. When the House of Representatives in 1796 called on the president to send it all the papers involved in the Jay Treaty (ensuring a peaceful relationship with Britain after the Revolution) that had been ratified by the Senate and signed by the president, Washington refused. Recognition of any role for the House, he declared, not only would create "a dangerous precedent," but would also be unconstitutional. "Washington's decision," says Yoo, "would provide the foundations for future presidents to expand their right to keep from Congress and the Courts any information whose disclosure would harm the national interest."
Once Congress had created an army to deal with hostile Indians, Washington assumed that he had the authority to decide whether and how to use it. Although he did ask for Congress's support each time he wanted to enlarge the military force, he never sought a declaration of war or even statutory authorization for his offensive operations in the northwest. In a variety of ways, writes Yoo, "Washington set an example of executive leadership upon which future Presidents would draw."
ALTHOUGH OUR third president, Thomas Jefferson, believed deeply in limited government, especially at the national level, he did not necessarily favor a weak chief executive. Drawing on recent scholarship that makes this point, Yoo develops the various ways by which Jefferson enhanced the power of the presidency.
First of all, he made the presidency more powerful by making it more popular. As the head of the Democratic-Republican Party, he saw himself speaking for the great majority of the American people. He duplicated Washington's style of leadership, with all of his cabinet reporting directly to him. Although he deferred to Congress as an institution, he used his personal charm and his many congressional dinner parties to influence the legislature. He held that the president had equal authority with the other branches of government to determine the constitutionality of governmental actions. Although he believed that only Congress could declare war, once the United States was at war, for example with the Barbary Pirates, then the commander in chief could conduct offensive maneuvers as he saw fit, even conducting covert operations without Congress's knowledge.Essay Types: Book Review