But in Yoo's view, Jefferson's presidency was flawed because Jefferson believed that at moments of crisis the chief executive had to act beyond the Constitution. Sometimes, said Jefferson, there was "a law of necessity and self-preservation" that "rendered the salus populi supreme over the written law." According to Yoo, Jefferson needed to hold such a belief in order to justify the Louisiana Purchase and the arrest of the Burr conspirators-who had plotted to do something nefarious with territory in the southwestern United States-without granting them the right of habeas corpus. Since Yoo is interested in tracing the authority of the president within the Constitution, Jefferson's views have little significance for his argument.
WITH ANDREW Jackson, Yoo has a president after his own heart. Although over the past several decades Jackson has come under serious historical criticism, mainly for his treatment of the Indians, he did lay the foundations for the modern presidency. "Jackson," says Yoo, "remains one of the greatest American Presidents because he reconstructed the office into the direct representative of the American people." He claimed equal authority with the Supreme Court to interpret the Constitution, took on the Bank of the United States as a bastion of monied privilege, and used the veto as no president before him ever had, in effect making the president a permanent player in the legislative process. He established the presidency as "the primus inter pares of the national government." Of course, writes Yoo, "like other Presidents who have made broad claims of executive authority, Jackson was attacked as a tyrant or dictator." But his "reinvigorated understanding of the constitutional powers of the office" bequeathed to Lincoln a conception of the office that allowed Lincoln to preserve the Union when secession came.
LINCOLN'S POSITION in the nation's pantheon is beyond challenge, and his "greatness," says Yoo, "is inextricably linked to his broad vision of presidential power." Although critics have claimed that Lincoln had to exercise unconstitutional powers in order to save the Union, Yoo will have none of it: "His actions drew upon the same mix of executive authorities that had supported Washington, Jefferson, and Jackson." Lincoln challenged the legitimacy of the Supreme Court's Dred Scott decision, claimed that the president had as much right to interpret the Constitution as the Court and used his war powers to justify the Emancipation Proclamation.
Realizing, says Yoo, that "the normal process of law could not handle the unique nature of the rebellion," Lincoln suspended the writ of habeas corpus, extended martial law and used military commissions to deal with all those supporting the rebellion, including Northern civilians. These expansive actions, Lincoln declared, were necessary to save both the Constitution and the Union, and since they were political decisions, they were not reviewable by the Supreme Court. At the same time, writes Yoo, Lincoln "carefully argued that his exercise of extraordinary powers remained within the Constitution." Although scholars have long criticized Lincoln for going too far in his restrictions on civil liberties, no one doubts, claims Yoo, that he acted with the best of intentions in the most unprecedented sort of circumstances.
OF COURSE, admits Yoo, the example of Lincoln's successor Andrew Johnson, who just escaped the Senate's conviction by one vote after being impeached by the House of Representatives in 1868 for violating an act of Congress passed the previous year, shows that "not all Presidents who press their constitutional powers to the limits will prevail. . . . Johnson failed not because of his understanding of his constitutional powers, but because he misjudged when to use them."
Yoo seems to be making a crucial concession here, for he suggests that the president's constitutional authority is limited only by circumstances. If most of the president's contemporaries and later historians come to accept his actions as constitutional, then that acceptance becomes the criterion of constitutionality.
That was certainly the case with the presidency of Franklin D. Roosevelt. The crises of the Depression and the later fascist threat made possible FDR's unprecedented expansion of presidential power. Although the Supreme Court rejected much of the early New Deal as an unconstitutional enlargement of government authority, the overwhelming victory of Roosevelt and the Democrats in the 1936 elections eventually changed the Court's notion of just what was constitutional and just what was unconstitutional. The country, as if it were at war, wanted action, and Roosevelt was more than willing to comply and "to advance his own understanding of the Constitution." FDR and the New Deal Congress created an "administrative state" that sought to make the executive "the fount of legislative proposals" and "the locus of regulation-issued through agency rulemaking, rather than acts of Congress." Although the president had difficulty controlling the many regulatory agencies, he did make the White House the center of executive authority, thus reducing the power of the department heads in the cabinet. But Yoo remains doubtful whether Roosevelt's administrative state was worth the price paid in loss of liberty.
WHAT WAS worth some sacrifice of liberty was World War II. According to Yoo, "FDR's claim to greatness lies not in the New Deal, but his defeat of one of the greatest external threats our nation has faced, fascist Germany and Japan." Roosevelt used a broad understanding of his constitutional powers in order to move the country toward war. He creatively interpreted the Neutrality Acts-passed in the 1930s by an isolationist Congress-that prohibited the United States from selling arms to belligerents, made executive agreements with Great Britain that bypassed the House and Senate, and in general took a very expansive view of his powers as commander in chief in order to check German and Japanese aggression. When the war came, FDR created military commissions on his own authority to try enemy agents, established detention centers for American citizens suspected of disloyalty and ordered electronic surveillance of anyone suspected of subversive activities.
Although Yoo questions the internment of a hundred thousand Japanese-American citizens, he generally endorses most of Roosevelt's unilateral actions that brought the country into a war that was successfully waged. "A President who viewed his constitutional authorities as narrowed to executing the will of Congress," he writes, "might well have lost World War II."
OF THE Cold War presidents, to whom Yoo devotes a chapter, Truman was the most important in expanding the constitutional authority of his office. Not only did he announce the Truman Doctrine, promising support to Greece and Turkey in 1948 against a Communist takeover and engineering the Berlin airlift in 1948 without prior Congressional authorization, Truman also intervened militarily in Korea in 1950 and deployed four combat divisions in Europe in 1951 to offset the enormous Soviet advantage in conventional forces, again without consulting Congress. Although Republican Senator Robert Taft criticized most of these actions as usurpations of authority, Truman defended his decisions on the grounds that he was commander in chief of the armed forces. Because Congress never seriously resisted his actions, Truman, according to Yoo, effectively and legitimately expanded the constitutional power of his office. This in turn made possible his successors' eventual triumph over the Soviet Union in the Cold War. "Without recognizing broad constitutional powers in the presidency," concludes Yoo, "the United States could not have prevailed."
UNSURPRISINGLY, NIXON'S behavior as president was disastrous for the powers of the office. Although "the problem with Watergate was not the Presidency itself, but the man who used the powers of the office to advance and protect his personal interests," the Watergate abuses nevertheless provoked a series of laws in the 1970s designed "to bind the executive branch, to narrow its discretion, to slow its decisions, to force it to act within congressional preferences, and to allow public inspection of its operations." Because "these acts undermined the very character of executive power," subsequent presidents generally opposed them and continued to act unilaterally, assuming that the failure of Congress to resist implied congressional acquiescence. What Watergate did change dramatically was the president's relationship with the courts. The modern president, says Yoo, seems to have accepted the idea that the Supreme Court has the sole authority to interpret the Constitution, a claim of judicial supremacy that earlier presidents had never conceded.
A FINAL chapter deals with the administration of George W. Bush. Yoo's carefully constructed history of the presidency convincingly shows that all of Bush's controversial actions following the 9/11 terrorist attack-including detaining prisoners at Guantánamo, conducting warrantless surveillance, using coercive interrogation measures, and establishing military commissions for the trial of terrorists-can be constitutionally justified by the actions of previous presidents. "Whether his claims [of constitutional authority] ultimately have merit," Yoo admits, "depends on whether they were used at the right moment." In other words, future events and the judgment of later historians will determine the legitimacy of Bush's actions. "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 counter-productive." Again, it seems that the measure of a president's constitutional authority is simply circumstances. If the crisis turns out to be really serious, then he can get away with almost anything. Washington's contemporaries weren't wrong when they said that the framers had created an elective monarch.Essay Types: Book Review