On Presidential Power

Presidential power has always been controversial. Congress and the Judiciary have clashed with both Bush and Clinton administrations over matters of executive privilege, impeachment, and the war on terror. Almost all modern presidents have moved to expand their power. So it is an even bet that given the foreign policy challenges of Iraq, Afghanistan, Iran, and North Korea—not to mention the disruptions to the domestic economy of the credit crisis—Barack Obama will soon be drawing on the well of executive power every bit as deeply as his predecessors have.

But critics have recently insisted that it is unconstitutional for a President to make war policy without consulting Congress first, despite the Commander in Chief role assigned to that office by the Constitution. Others, critical of what they believe to be excessive secrecy, suggest that military and intelligence agencies ought to report jointly to Congress, not just to the President, as they do today. Presidents, they say, should generally refrain from acting unless they have obtained the express permission of Congress and the courts.

American history and law provides little support for this view. The Presidency’s role in war, national security, and policy both foreign and domestic has only increased ever since the founding of the nation. Presidents have deliberately sparked war, seeking congressional approval only later, as when James Polk ordered Zachary Taylor to move against Mexican forces on the Texas border in 1848, an act that made the United States the dominant power in North America. Harry Truman sent U.S. troops to fight in Korea. Bill Clinton launched a unilateral air war in Kosovo. George W. Bush terminated the ABM treaty and withdrew from the International Criminal Court. Congress never approved any of these exercises of presidential power. All these actions were based on legal precedents dating back to Abraham Lincoln, who himself, in the Civil War, ordered the detention of enemy combatants without criminal charges or access to civilian court. These legal precedents have been followed time and again by Presidents regardless of party.

The Constitution, American history, our legal precedents, and the demands of a modern society and economy—perhaps unfortunately—simply require presidents to exercise broad powers. These powers have only become all the more encompassing with the growth of America’s economic and military standing, and the complexity of its society. Luckily, those who designed the Constitution also designed the office of the Presidency to respond to change, to act with the energy and vigor to act swiftly, especially in times of national crisis and war.

Nevertheless, there is an important strain of scholarship, a libertarian strain both on the left and the right, that contends that the Framers intended Congress to play the lead role in policy in the American democracy—that Congress should lead, and the President merely execute Congress’s policy. Some say the eighteenth century ideas underlying the Constitution are simply outmoded and have little relevance to today’s issues. Books with titles like The New Imperial Presidency, The Terror Presidency, or Takeover: The Return of the Imperial Presidency all proceed from a common assumption that the Presidency has little significant constitutional authority of his own but should follow and defer to Congress.

To this one can only reply that the Louisiana Purchase, the Emancipation Proclamation, and American assistance to the British before Pearl Harbor were executive actions, and by no means anomalies in history. This essay is meant to explore the nature of executive power as the American Constitution conceived it, and the historic pattern of the growth of that power over the past 220 years.

Today’s debates are echoed in those which attended the nation’s first chief executive, George Washington. According to Stephen Skowronek, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt were the most transformative American presidents, and, according to Marc Landy and Sidney Milkis, the “greatest” for their profound effect on American politics. In fact, historians almost always judge to be “great” those presidents who have wielded presidential power the most boldly and expansively. Such Presidents as Martin Van Buren, William McKinley, or Woodrow Wilson, made lasting changes to the political system and to the structure or powers of their office. But it is FDR, Lincoln, and Washington, who confronted the nation’s greatest crises, who are considered great by most historians. As Theodore Roosevelt observed, “if Lincoln had lived in times of peace, no one would have known his name now.”

James Buchanan, Lincoln’s predecessor, or Herbert Hoover, struck by the Great Depression, and even Calvin Coolidge, whose laconic inaction has nevertheless been admired for its discreet charm, are generally not accounted great presidents.

Still, the fact is that Presidents draw upon a deep well of constitutional authority and historical precedent to act, should they so choose.

Congress by contrast usually finds itself unable to provide this particular sort of leadership. Its committee nature, and its bias toward the status quo, or factional dissention, pulls against change. The qualities that define the office of the executive – energy, speed, decisiveness, and secrecy, among others – are those most required in emergencies, and it was to perform this necessary function that the executive was created. The ordeals of the founding of the nation, the Napoleonic Wars, the nationalization of society, the Civil War, or World War II, were not met without the Presidents of the day making the broadest use of their constitutional powers.

Yet executive power is hardly unlimited. Congress and the Judiciary maintain powerful checks on the President. Congress controls legislation governing the size and shape of the government and military, its funding, and the substance and reach of the law—all crucially important parameters that hem in all Presidential action. The courts can refuse to support executive action, can acquit or release suspects, or can invalidate laws that violate the Constitution. Aggressive executive action, wise or unwise, can energize political parties to rise up in opposition. Andrew Jackson’s vigorous assertions of presidential authority divided the Democratic party and sparked the founding of the Whigs. Dramatic action can turn public opinion against a chief executive who might have been popular just a few years before. Unless Congress and the judiciary agree, or at least acquiesce, it is a given that Presidents cannot pursue their policies over the long term, under the American constitutional system. Washington and Jefferson hurried to their retirements, heartily glad to quit the nation’s capital. Two of our greatest presidents, Lincoln and FDR, died in office, spent and exhausted by their difficult role.

Politics attends any dramatic exercise of a President’s constitutional authorities. By definition, dramatic executive action will offend powerful forces with a stake in the status quo. If a consensus already existed, after all, there would be no need to invoke power. Presidents forced to make a choice between a Scylla or Charibdis will always face criticism. But to protect the national interest, confront crisis, and to exploit opportunity is uniquely the Presidential role. Politics has been always been corrosive and intense, throughout our history.

Despite the politics that erupted some years after the fact over my own role in delineating the legal and historical parameters for Presidential action in the midst of a war crisis, this essay is not a brief on behalf of the Bush administration’s exercise of executive authority in the war on terror. It is about the constitutional and institutional history of the Presidency. Most studies of the Presidency focus on a single chief executive or depict the evolution of the office though a single frame. Rarely does one find any discussion of the constitutional authorities of the office, as structured by the Founders, at the outer limits of emergency and crisis. Ironically, the exercise of Presidential power at the margins strongly correlates with glowing praise and admiration from historians. Time must pass before strong conclusions can be drawn about whether any particular exercise of power, either by the President or by Congress, was to the nation’s benefit—if only because it takes the perspective of time to see the overall effects of those policies. New policies, or policy shifts driven by new conditions, often seem to stand in rebuke to past actions taken under other circumstances. All dramatic actions will spark strong views. The full context of an action is never entirely knowable from an outside perspective—at least not in the moment.

I had the honor to serve as general counsel of the Senate Judiciary Committee under the Chairmanship of Senator Orrin G. Hatch of Utah, a good and decent man as well as a steward of the Senate. I have the greatest respect for the awesome powers of Congress, and for the ways in which Congress and the broader political system works to check any chief executive. Like the President, Congress has its own unique constitutional authorities, which it can use to devastating effect. It was Congress that forced the resignation of Richard Nixon through hearings, political pressure, spending constraints, and ultimately impeachment. Today’s critics of the powers of the Presidency too often underestimate the power of politics to corral any branch of government that goes too far. Active responses to large challenges are not per se illegal, but claims of that kind can be an effective political weapon for those in opposition.

The Founding Fathers fully understood the dangers of tyranny and abhored it. And all “great” Presidents have been accused of abuse of power, whenever they used their constitutional authorities in ways they thought to be to the benefit of the nation. When crises subside, uses of presidential power recede, often going into remission under long periods of congressional leadership. Whenever misuse of power has come to light, the political system has frustrated, neutralized, or even forced out the President. No dictator has ever ruled in the United States, although charges and warnings of such have been sounded throughout history.

The evolution of presidential power through American history has been a story of consistent growth. The Framers intentionally left the constitutional boundaries of the presidency flexible and undefined. From the start, Presidents have acted as they saw fit, forcefully in response to unanticipated emergencies or fast-moving events, and without consulting Congress. Instead of “parchment barriers,” the framers counted on politics to check and balance the natural power of presidential charisma and initiative. Historians have noted the weaknesses of the presidency. It is for example true that the Founders wanted the office to be quite unlike that of a monarch. It is also true that a part of the function of the executive is to carry out congressional directives written into law. Standard texts like Arthur Schlesinger, Jr.’s Imperial Presidency observe how Presidents later used emergencies and war to expand their power to areas originally given, in theory, to Congress, the courts, or the states. Geoffrey Stone’s Perilous Times notes how Presidents of the past have often tended to go too far in abusing individual liberties during wartime, and observes that Congress and the courts have the duty to rein them in. Works by libertarian-conservative scholars shift the focus, to advocate limited executive power in peacetime—specifically, limits on the administrative state’s regulation of the economy and society.

There is some truth to both the liberal and conservative critique of the expansion in the powers of the Presidency. However, the executive is also an equal branch of government, one not meant to serve purely at the mercy of the other two. The Founders did not want the presidency to be a monarchy, but they also wanted it to be stronger than the state governors, who, they thought, were too hamstrung by the revolutionary states’ experiments in constitutional structuring.

John Locke, William Blackstone and Montesquieu believed that the executive encompassed management, discretion in the execution of the laws, foreign policy, and war. Prosecutors (an executive branch function), for example, do not ”enforce the laws” against every violator who comes to their attention. No state can pursue every known offense against the law, therefore only the most important or winnable cases are brought. This power of selection is a crucial component of executive and managerial control. Written laws passed by Congress also cannot anticipate everything. The Founders were well aware that good government could not be run entirely by a rulebook. This understanding is reflected in the familiar caution about the letter of a law conflicting with its spirit, requiring discretion in execution. (As Thomas Jefferson wrote after leaving the Presidency, “a scrupulous adherence to written law,” over the interests of self-protection, “would be to lose the law itself” and would “absurdly sacrifice[e] the end to the means.”)

The Framers had a love-hate relationship with executive power. Rejecting King George III does not mean that they were suspicious of all executive power. They were every bit as suspicious of legislatures, often accusing them of having too much power. Pennsylvania, for example, had no governor, but a 12-member committee appointed annually by the state assembly, and it was roundly condemned in the Constitutional Convention for having reduced the role of governors to “mere ciphers.” Actually, the Founders viewed all-powerful legislatures as a greater threat to liberty than unchecked executives. James Madison and Alexander Hamilton sought to contain the revolutionary legislatures with independent executives. As historian Gordon Wood has observed, the Constitution represented a Thermidorean reaction to rein in the unruly legislatures birthed by the Revolution.

The tension between the recognized dangers of both legislatures (special interest group legislation) and executives (tyranny) expressed itself in the Constitution’s parceling out of power in either broad and sweeping terms (in the case of the executive), or precise and enumerated (in the case of Congress). The President is “Commander-in-Chief of the Army and Navy of the United States” while Congress ”declares” war. The President can make treaties and appoint Supreme Court Justices, but only with the advice and consent of the Senate. By contrast, British constitutional practice vested in the Crown alone the power to make treaties and appointments.

There is no mention in the Constitution of a cabinet or power over the agencies, but the President is given the duty to “take Care that the Laws be faithfully executed.” While the Framers granted the bulk of power to Congress—most importantly the authority over domestic legislation and taxing and spending—it left the outer contours of the Presidency open-ended.

Broad phrasing inevitably became a legal vessel for new powers; as the nation grew and foreign affairs became more important, the President’s responsibilities grew too. It is a phenomenon criticized by many, but nonetheless a very real one.

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Early in his administration, Washington called on the first Congress for advice about treaty negotiations with the Indians. It was a hot day, and the windows were open in the small room that held the first Senate. Noise from the traffic outside drowned out Washington's voice. Unable to hear, the Senators repeatedly interrupted the President, and he couldn't get past his first question. The Senators soon began to squabble, in the middle of which Washington “started up in a violent fret,” reportedly muttering, as he left the Senate chamber, that “he would be damned if he ever went back there again.” Washington had a formidable temper, which he struggled all his life to control. He never returned to the Senate. From the day Washington stormed out, the Senate has never been formally included in treaty negotiations. The Senate’s advice and consent has been relegated to approval after the fact. And the President’s enhanced power over treaties has been treated as fixed precedent, one which has arisen not from any sharp disagreement over constitutional interpretation, but out of a moment of historical pique.

“Separation of powers” and “checks and balances,” are often used interchangeably. Though interrelated, they are in fact two separate concepts. The Constitution created a separation of powers, derived from ideas of John Locke and Montesquieu and never tested in reality, between the government functions of “executive,” “legislative,” or “judicial.” Checks and balances is the requirement that parts of government share in certain important decisions that arose from the British tradition of different classes of society being represented by different divisions of government, each having a check on the actions of the others. Placing “the executive power” and the “judicial power” into the presidency, and the Supreme Court, respectively, as the Constitution does, are examples of the separation of powers. The President’s conditional veto over legislation is an example of checks and balances.

The Framers had plenty of experience with checks and balances under the British constitution, which had served as the American constitution until the Revolution. But it was up to Presidents Washington and his successors to develop the concept of separation of powers in the world’s first representative democracy. They proceeded to do so, through history to come, by taking full advantage of the open-ended nature of the constitutional text on presidential power, a choice that may, perhaps, have reflected the Founders’ confidence in the unimpeachably trustworthy George Washington expected to serve as the nation’s first President.

The Founders also however believed that they were preserving the critical elements of the British constitution from the influence of the Crown, and from Parliament’s radical innovations. State constitutions drafted in the immediate wake of the Revolution, before the Constitutional Convention, had experimented with diluting executive power, but the drafters of the Constitution regarded the experiments as a failure.

Today, presidents have considered themselves free to negotiate treaties or choose Supreme Court nominees without consulting the Senate, then to present them for an up or down vote. Most modern Presidents even argue that the Senate is obliged, when presented with a fait accompli, to defer—and in actual practice, many Senators do opt to defer. Today’s critics often urge the Senate to be more assertive, more of an equal partner in treaties and appointments, and give more life to the ”advice and consent” role, as many believe was originally intended. This has led to a minority of Senators staging filibusters of judicial nominees, or protesting the withdrawal from international treaties such as Kyoto without enough “advice and consent.” Conflicts over American entry into the World Trade Organization, the North American Free Trade Agreement, and the Strategic Defense Initiative, are all debates grounded in differences in interpretation of the meaning of the advice and consent clause of the Constitution.

Should Presidents include Senators on diplomatic missions, or allow them to choose every other judge? President Washington at first took advice and consent to mean that the Senate was his advisory council, to be consulted before ordering ambassadors about the goals of their missions. Prior consent would have been more critical in that day—communications and transportation speeds were such that instructions given to ambassadors had to be finally binding. A nation was often honor bound to ratify treaties that fell within the bounds of the ambassadors’ instructions.

But after Washington walked out of the Senate chamber in a huff on that fateful day early in the nation’s history, impatient with their squabbling, the Senate’s advice and consent has been limited to approval after the fact. The Presidency’s power over treaties was functionally enhanced by that act. Ever since, it has been treated as precedent.

Modern Presidents claim and exercise almost complete authority over the conduct of American foreign policy—the country’s objectives, allies and enemies. Presidents lead in taking the nation to war, as had Truman in Korea, Reagan in Grenada, Bush 41 in Panama, and Clinton in Kosovo, to cite only the most recent examples. Presidents meet at summits with the heads of other countries, where great matters of state are settled, sometimes in secret—as in the disastrous summit between Kennedy and Khrushchev in Vienna, Nixon negotiating with Brezhnev, or Bush 41 meeting Gorbachev to settle the unification of Germany.

Many scholars today argue that presidential dominance of foreign policy is contrary to the original constitutional design. They advocate that Congress play a greater role. From the beginning, Presidents have always disagreed. The central foreign policy problem of the early republic was how to respond to the French Revolution and the Napoleonic Wars. Britain and France, the two superpowers of their day, had been locked in a titanic, world-wide struggle for supremacy. Weak and dependent on commercial and cultural ties with Great Britain, the United States was also committed to its 1778 treaties of mutual defense and alliance with France, whose ambassador, Citizen Genet, had been sent to America to buy supplies and drum up support from American mercenaries and privateers. Washington unilaterally proclaimed American neutrality in April, 1793, abrogating the 1778 treaties. He did this without consulting Congress, though after a heated debate between Hamilton and Jefferson within the cabinet as well as an abortive attempt to consult with the Supreme Court. Washington wound up making the right choice. He avoided alienating the British thus leaving the U.S. at the mercy of the British navy (as the War of 1812 would later vividly demonstrate). At any rate U.S. support then would have been little help to France.

Writing under the pseudonym “Pacificus,” Hamilton wrote newspaper articles arguing that the Constitution made the President “the organ of intercourse between the Nation and foreign Nations” because foreign relations was part of the “executive power” of the United States as understood by the British and state constitutions. Transfers of that authority to Congress or the Senate, he argued, were to be read narrowly. At Jefferson’s urging, Madison replied in the press as “Helvidius.” Reversing a position he had taken six years earlier, Madison argued that the President had little if any inherent authority by virtue of his executive power. The President was a “convenient organ” for diplomatic relations, he said, but matters of war and peace were fundamentally legislative in nature. Until recently, most historians have considered Hamilton to have had the better argument, and certainly presidential and congressional practice has favored executive control over foreign affairs ever since in American history.

Hamilton’s arguments expanded on a debate in the first Congress about the bureaucracy. Today, we are accustomed to a system in which cabinet secretaries serve at the pleasure of the President and work as subordinates to carry out his program, yet at the founding it was not at all clear that government need take this form. We might have adopted the British model, where ministers represent different factions within the ruling party in Congress and are in some sense competitors with rather than subordinates of the President. The most important power of the President under the Constitution so far as the bureaucracy is concerned is his power to fire officials. This “removal power” has often arisen in power struggles between the executive and Congress—in the Civil War, the New Deal, and the Reagan era, for instance. The Constitution sets out how officials are to be appointed, but not how they are to be removed. In creating the first great departments of State, War, and Treasury in 1789, Congress debated whether the President needed the advice and consent of the Senate before he could fire cabinet members, and, in what has become a controversial decision among historians and legal scholars, recognized the President’s power to fire heads of departments. In this debate, James Madison argued that the Constitution’s vesting of “the executive power of the United States” in the President implied an inherent power to fire which could not be controlled by Congress. Washington seized on this mandate and the foundations of our government have since rested upon it, so that today we assume as a matter of course that the President is the indisputable head of the executive branch, the members of the cabinet his subordinate officers, and their jobs to implement the President’s program rather than those of Congress or party factions.

Executive privilege and government secrecy will be at the center of many of the political confrontations between the President and Congress in the coming years. Executive privilege refers to the power of the President to refuse to disclose information to Congress and the courts. It dates back to the Napoleonic Wars. There, over Jefferson's strenuous opposition, George Washington tried to settle with the British, who had seized hundreds of U.S. merchant vessels trading with France. Washington sent Chief Justice John Jay to negotiate a treaty with the British in 1795, which was eventually approved by the Senate by the barest of margins. The House, where anti-British sentiment was strongest, insisted on inspecting the negotiating record of the treaty. Washington refused on grounds of harm to the national security. If anybody could see the papers, he said, it would be the Senate because of its role in treatymaking, not the House. The House accepted Washington’s claim of privilege. Ever since, Presidents have claimed a right to keep secret national security, military, and diplomatic information. Even in the midst of the Nixon scandals, the Supreme Court agreed in the Watergate tapes case that the President’s interest in protecting sensitive military and diplomatic information and encouraging candid advice and discussion within the government, justified secrecy over certain information.

Our greatest Presidents—Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt, and the Presidents of the Cold War—have built the institution and power of the presidency in coordination with their political parties. Jefferson was less forceful as an executive than Washington because he regarded himself first as leader of the Democrat party, in the manner of the British, the legal model most present to the minds of the politicians of the early republic. Democrats held substantial majorities in Congress throughout Jefferson’s tenure. Yet Jefferson also greatly advanced the powers of the presidency because he was aggressive in his initiation of legislation in contrast to Washington and Adams’s relatively hands-off attitude to Congressional affairs. Jefferson thought that because he was elected by the nation as a whole, he “command[ed] a view of the whole ground.” This, in his view, made him better qualified to develop laws for the nation at large than Congress. Hamilton spearheaded legislation to establish a national bank. But Jefferson made the executive branch the coordinator and initiator of the legislative process. Future Presidents, from Woodrow Wilson and his progressive agenda, to FDR and the New Deal, to Bush and his tax cuts, would draw on Jefferson’s example.

Jefferson was also the first to assert that he need not execute laws which he regarded as unconstitutional, an issue in the news today because Bush 43, too, has expressed this same sentiment by using signing statements reserving the President’s right to enforce laws consistent with his understanding of the Constitution. This precedent stems from the period of heightened war tensions with France of 1798, in which Congress enacted the egregiously chilling Alien and Sedition Acts, which made it a crime to criticize the government (with truth as a defense). Federalist judges upheld the law. Outraged by this incursion on the right to free speech and press, Jefferson, on taking office, blocked the Acts’ enforcement, ordering prosecutors not to bring charges, and releasing those already convicted. Jefferson wrote that, “the judges, believing [the sedition law] constitutional, had a right to pass a sentence of fine and imprisonment . . . But the executive, believe [ing] the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution.” Jefferson rejected the idea that judges were supreme in interpreting the Constitution, instead arguing that each of the “co-ordinate branches” had an equal say.

Jefferson took a strong hand in controlling the bureaucracy as well. When he took office, holders of federal office mostly supported the Federalist party. Rather than wait for turnover through attrition, Jefferson fired at least half of all significant federal officers and replaced them with members of his own party. His successors, particularly Andrew Jackson, would transform this into the “spoils system,” but Jefferson set the precedent for the idea that a President should have the right to appoint to federal office those who agree with his politics and policies. The executive branch, as Jefferson saw it, was to be more than a neutral, disinterested group of administrators.

After Jefferson, executive authority declined sharply, and drift was the order of the day. Congress increasingly took a hand in managing the nation's policy. It sought a solution to the slavery question. Andrew Jackson thought he represented the wishes of the American people better than Congress, and often appealed to the electorate directly over Congress's heads. He was the first president to veto legislation he deemed bad policy even though fully constitutional. Jackson challenged South Carolina’s effort to “nullify” federal legislation, outdoing even Jefferson in challenging the Supreme Court’s interpretation of the Constitution. He vetoed legislation to renew the national bank because thought it unconstitutional—despite the Court’s holding in McCulloch v. Maryland to the contrary—asserting that, “The opinion of the judges has no more authority over congress than the opinion of congress has over the judges, and on that point the president is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the congress or the executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”

The President's right to read the Constitution in a manner contrary to the understanding of the Supreme Court, or the states, originates in Jefferson's and Jackson's conception of the powers of their office.

Presidential power expanded during Abraham Lincoln’s presidency which was not to be seen again until FDR and the Cold War. Lincoln faced the direst threat our nation has yet experienced—secession and a civil war that caused more casualties than any other in American history. Lincoln transformed America’s understanding of the Union. It is due to him that the Declaration of Independence, with its noble promise of equality, and its identification of America as a nation rather than a compact of states, has become central to America's understanding of itself. In response to the shelling of Fort Sumter, Lincoln raised an army of 75,000 men, withdrew funds from the treasury, and suspended the writ of habeas corpus, all without any congressional authorization or appropriations as required by Article I of the Constitution. Lincoln sent troops to invade the South and the navy to blockade its ports, with no Congressional participation. Many critics and scholars then and since have, in fact, accused Lincoln of seizing dictatorial powers to win the Civil War.

Lincoln, like his predecessors, relied on the open-ended nature of the office’s constitutional powers. He sought after-the-fact approval from a special session of Congress, but, as the war persisted, relied more and more on his own authority, saying that it was necessary in order to fulfill his responsibility to “take Care that the Laws be faithfully executed.” He told Congress that emergency measures were necessary because federal laws in the South “were being resisted and failing of execution in nearly one-third of the States.” The Emancipation Proclamation was an edict that Congress neither authorized nor passed, issued solely under Lincoln’s commander-in-chief power, though the Constitution clearly says that Congress is to make all laws. Furthermore, the Bill of Rights requires compensation for takings of property, which, according to the Constitutional interpretation of the time, would have entitled slaveowners to compensation for the loss of their slaves. Lincoln regarded the Emancipation Proclamation as a war measure, required to deprive the South of a vital resource. Similarly, reconstruction was first undertaken under military orders from Lincoln, not by legislation from Congress.

Lincoln also famously suspended the writ of habeas corpus at the start of the Civil War. The “Great Writ,” as it is known, allows a citizen detained by the government to question his detention before a federal judge. The writ of habeas corpus is so basic a right, the Constitution places it in Article I along with the enumeration of Congress’s powers. Lincoln not only suspended this key civil liberty in time of war, he imposed military government in several regions. He also established military commissions to try enemy combatants and spies behind the lines. In 1861, a suspected Confederate saboteur detained in Maryland sued over Lincoln’s suspension of the writ, and won. Chief Justice Roger Taney ordered him released, saying Lincoln had violated the Constitution. Lincoln refused to obey the order and continued the detention. In justifying his actions to Congress, Lincoln said, “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?”

In the desperate struggle of war, the priority, Lincoln believed, was the survival of the Union. In an emergency, even the constitution sometimes must make way. “I felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the nation,” Lincoln said, echoing John Locke’s theory of the executive’s prerogative to suspend or even violate standing laws when the public safety required it. As he wrote in an 1864 letter, “Was it possible to lose the nation and yet preserve the Constitution? … By general law, life and limb must be protected, yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb.” During the hostilities, Congress and the Supreme Court generally concurred with Lincoln’s actions, usually after the fact. Once the emergency had passed, Congress and the Court re-asserted their authority. Yet Lincoln always sought moderation in exercising his extraordinary wartime powers, and he consulted Congress when possible. He believed that all of his actions were justified by his responsibility, as Commander-in-Chief and Chief Executive, to protect the nation and enforce the law.

After Lincoln, the presidency fell into quiescence until two very different Presidents burst onto the scene—Teddy Roosevelt and Woodrow Wilson. The youthful, exuberant Roosevelt pursued popular reform policies not supported by Congress—for instance the prosecution of large industrial trusts. T.R. later declared in his autobiography that “the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under its Constitutional powers”— that is, that he, and any President, was free to exercise all the powers of the federal government that the Constitution did not specifically deny him. “I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it,” he explained. Instead, he proposed what has become known as the “stewardship” theory of the Presidency—that the President's job is to promote the “common well-being of all our people,” whether explicitly spelled out in laws or not. Roosevelt unilaterally expanded what would become the national park system on his own authority, sent troops abroad, helped Panama become independent to acquire the Canal, and expanded the Monroe Doctrine to keep Europe out of the Western Hemisphere.

Wilson chose to drive legislation much as Jefferson had, but, with only a plurality of the popular vote, Wilson was acting out of weakness rather than strength. A professor of political science and president of Princeton University, Wilson argued in his book, Congressional Government, that the Constitution’s eighteenth-century separation of powers made the national government unworkable for the twentieth century. Once in office, Wilson sought to turn his academic theory into reality by turning the Presidency into something like a prime minister. Wilson worked closely with Congress to enact sweeping legislation—regulating the national economy, setting up the Federal Reserve Banking system, putting a graduated income tax in place, and passing new antitrust laws. But in foreign affairs, Wilson, like his predecessors, operated alone. He sent troops to Mexico on a punitive expedition. He intervened in Latin America on a scale never before seen, and much deplored since. As World War I raged, Wilson guided the nation toward war with Germany, then set the agenda for the peace. Announcing that the United States would make the world “safe for democracy,” he issued the Fourteen Points for terms of peace and proposed a League of Nations. A minority of the Senate balked at that, and refused to adopt the Treaty of Versailles, whereupon the United States struck an isolationist course that would prevail all the way up until World War II. Wilson had used his powers aggressively—but in going it alone he also stirred up opposition that wound up handcuffing him politically.

Franklin Roosevelt is rightly considered the creator of the “modern” presidency, whose political reforms still govern the executive branch today. FDR vastly expanded the powers of the presidency beyond anything before seen. The New Deal expanded the federal government's authority over the economy in response to the emergency of the Great Depression. Less well known, FDR enhanced the executive branch’s power relative to Congress and the Court. This proved to be an expansion going far beyond “stewardship” or war emergency—sometimes very much at the expense of individual liberty. FDR worked closely with Democratic majorities in Congress to pass broad delegations of lawmaking authority to new federal agencies to exercise virtually all of Congress's lawmaking powers, subject sometimes to the requirement only that the agencies' decisions promote “the public interest.” As the size and scope of federal agencies grew more sprawling and complex, FDR sought to direct and control the bureaucracy. FDR’s efforts to reorganize the bureaucracy failed in Congress, but he was able to centralize policy in the White House through his control over appointments and over the budget, represented by the creation of a new Executive Office of the President.

This has led to the system we have today, in which most federal regulations are not passed by Congress, but are issued by the executive branch. While FDR claimed that this broke no new constitutional ground (and the Civil War and Progressive Eras had held important precursors), the New Deal centralized regulatory power in the executive branch to a degree not theretofore seen except in wartime. FDR made the "emergency state" a permanent feature of American government, shifting policymaking authority to the Presidency from Congress and the states. We see the results of this transformation today every day, when the executive branch, rather than Congress, decides whether the federal government will support stem cell research, or raise fuel efficiency standards for automobiles, or promote the participation of religious groups in social service programs.

FDR’s revolutionary effort to create a permanent administrative state qualifies him as one of the most significant Presidents in American history. But there was more. Tto neutralize potential opposition to his effort to shift power to the Presidency, Roosevelt took on the Supreme Court. At first, the Supreme Court had struck down several early New Deal laws as unconstitutional. In the 1936 elections, FDR castigated the Supreme Court for its “horse-and-buggy” era approach. Once back in office by a landslide, FDR proposed a “court-packing plan” to add six Justices who shared his agenda to the Supreme Court. He suffered a stunning defeat in Congress, but in the middle of the controversy, the Supreme Court shifted course, and began to uphold important New Deal laws regulating labor unions and working conditions anyway. Justices who had resisted the New Deal began retiring, and FDR replaced them with New Dealers. From 1937 on, the Court adopted an attitude of extreme deference to the President and to Congress. They would not strike down another federal law for going too far in regulating economic activity for the next sixty years. Though he lost a battle, FDR showed his political power by winning the war.

FDR followed in his predecessors' footsteps in foreign affairs. As the world headed toward a second global conflagration, Congress sought to enforce strict U.S. neutrality by passing the Neutrality Acts. FDR wanted to block Germany's drive for hegemony over Europe instead, and set out to skirt or outright violate Congress’s laws establishing American neutrality. On his own authority, FDR ordered the transfer of 50 destroyers to Great Britain in exchange for naval bases. He sent the U.S. Navy to protect convoys to Britain, and waged undeclared war against German submarines. He also vigorously attempted to force Japan to withdraw from China, brought about a rapproachment with the Soviet Union, and ordered the warrantless wiretapping of anyone in the United States deemed a subversive threat to national security. The very same Supreme Court Justices who had opposed Roosevelt's domestic policies as an intrusion on individual liberty now heartily agreed with his expansion of presidential power over national security. In a 1936 decision, the Court declared that the President was the “sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress.” The Court said that presidential discretion would be permitted over national security matters which would be impermissible solely in domestic affairs. Congress only grudgingly cooperated with FDR's effort to make the United States the “arsenal of democracy,” as FDR assisted Great Britain and the Soviet Union, and prepared the nation for war against the Axis powers. Pearl Harbor marked America's entry into World War II, but FDR had already so maneuvered the United States into position on the side of the Allies that American entry would certainly have occurred, sooner or later, even without the Japanese attack. FDR’s actions, while clearly in the best interests of the nation in retrospect, gave rise to the same “imperial presidency” that would later be attacked in the Vietnam War.

The postwar period has taken place within the outlines established by FDR. Individual presidents have expanded executive power in some areas, but lost it in others. Truman, Kennedy, Johnson, Reagan, Bush, and Clinton continued to rely on the President’s primacy over foreign affairs to launch wars without congressional approval other than funding support, including an enormous standing army and intelligence bureaucracy without precedent in American history, basing troops abroad on a virtually permanent basis—mostly with the full agreement of Congress. Presidents have relied on national security to develop an intricate system of clearances and classification to keep ever more information secret. Presidents, most notably Presidents Reagan and Clinton, have sought to exercise ever greater control over the bureaucracy by exercising the power of removal, and claims to issue binding orders on all executive branch officials. And Congress has delegated ever more power to the administrative state.

Our chief executives have become the center of power of their political parties, to the point where Presidents decide their parties’ platforms, run the nominating conventions, and assemble coalitions. Throughout the postwar period, we have witnessed a hyperactive Presidency that has justified its exercises of power by the needs of a newly complex economy, and the existential threat posed by the spectre of nuclear Armageddon—first Soviet, and now from terrorists.

And yet the expansion of executive power during this period, for the most part, has, in my view, been both a natural evolution which seemed then and now to be necessary, and, overall, to the benefit of the country. It has allowed our nation to move swiftly and decisively to address both domestic and foreign challenges. Congress, it is true, reacted to the expansion of the Presidency of the 1970s by enacting a series of laws, such as the War Powers Resolution, the Foreign Intelligence Surveillance Act, and the Budget and Impoundment Act—all written in overreaction to one president, Richard Nixon. These laws did not address any true structural need to re-balance the political system.

The expansion of congressional power during this period of our history has not, I think, resulted in good policy. Five hundred-and-thirty-five members of Congress simply cannot develop specific day-to-day policy in the national interest. Only the executive branch can do this. A legislature’s function nationally is to draft the laws of the land guiding the conduct of individuals, to set goals for legislative programs, and to spend taxpayer revenues in the national interest. Presidents make policy more effectively because they have greater access to expertise through the resources of the unified executive branch. They also tend to pursue the common, national interest more closely because, as Jefferson first reasoned, they are elected by the entire country. This is not the case for individual members of Congress, or at least, far less so. Members of Congress tend instead to avoid difficult policy decisions, to shift responsibilities to agencies and courts, and to funnel spending or tax breaks to special interest groups.

This is not to say that Presidents do not make mistakes of judgment. When they do, they suffer the consequences at the voting booth. But it is much better for the executive branch, not Congress, to keep the upper hand in management of policy, particularly in matters of foreign policy and war. Recent Presidents such as Bush or Clinton have exercised the powers of their office energetically not because they are power-hungry, but because it is in the clear best interests of the nation to have coherent policy in the government’s day to day operation. And more often than not, Congress goes along with a great deal of the President's policy decisions. While naturally jealous of their own prerogatives, Congress often recognizes the value of giving our executives broad discretion. Witness the effort of the Republican Congress to give President Clinton the power to veto specific spending projects, only to be blocked by the Supreme Court.

Both the media and academia have contributed to a deep misunderstanding of the Presidency. Media attention has transformed Presidents into celebrities, making their every move seem to be central to the political universe without explaining the very real limits on their constitutional powers, which include some recently created laws of fairly recent vintage and uncertain application or constitutionality. For about three decades, the political science study of the presidency has fallen in with a President-as-cult-of-personality theory. Richard Neustadt’s classic Presidential Power and the Modern Presidents argued that the presidency was an inherently weak office, beset by foreign and domestic events and the demands of domestic interest groups, party members, and other institutions. At the same time, the public expects Presidents to guarantee national security and economic growth and represent national values. This combination of institutional weakness and large popular expectations means that “[p]residential power is the power to persuade,” not the power to command. Scholars who have followed Neustadt—most recently Fred Greenstein in The Presidential Difference—have sought to root the President’s power in characteristics such as communicative and political skills, organizational ability, vision, cognitive style, and emotional intelligence. For the leading school of thought in political science, a President who resorts to unilateral action based on his constitutional powers has failed, not succeeded.

Legal scholarship does little better in its particular narrow gauge view. Most books on constitutional law make only passing reference to presidential power. We all tend to mark political time by presidential administration, and attribute great importance to the decisions Presidents make. Presidents head their political parties, manage the bureaucracy, and play a significant role in the legislative process. They nominate officials, execute the laws, veto legislation, and command the armed forces of the United States. Yet the leading books on constitutional law used in American schools, such as the most recent edition of Constitutional Law by Geoffrey Stone, Louis Seidman, Cass Sunstein, and Mark Tushnet, devotes only 100 out of 1560 pages to conflicts between the powers of the President and Congress. Current legal scholarship on the presidency focuses almost exclusively on the meaning of Article II’s vesting of the “executive [p]ower” in a single President, and whether that gives the President the power to fire executive branch officials for any reason. Political scientists obsess too much on the personal details. Lawyers focus too much on the personnel details.

The idea behind the “executive power,” which traces its origins from Alexander Hamilton and the first Washington administration, to thinkers such as Machiavelli, Locke, Montesquieu, and Blackstone, requires the perspectives of many disciplines: law, history, and political science. In the 20th century, the idea of presidential power has taken full advantage of the broad language of the Constitution and expanded to include management of the agencies and other powers inherently “executive” in nature—in contrast with the Constitution’s grant of specified, or "enumerated," powers to Congress. Presidential power also grew through the development of the President as party leader. Lastly, it grew in response to pressing challenges to the nation through its history.

Claims of an out-of-control executive have been much bandied about lately. Most are overblown, aimed at a campaign season and audience. The Bush administration went to Congress twice for authorization for foreign combat. Congress has always has full power to cut off or roll back any military operations it chooses—however, it often does not so choose, and this fact makes no headlines. The political effort to curb the President's power over judicial appointments today has been heated: filibusters withholding Senate approval, for example, have proliferated to the point of judicial system paralysis. Judicial nominees are kept in limbo or subjected to smear campaigns, and this, at least theoretically, encourages a talent deficit in the judiciary. The national interest requires executive and legislative branches to cooperate politically. Congress can be eager to micromanage the executive branch, but whenever it addresses difficult subjects on which there is no consensus, it tends to pass ambiguous laws—sometimes bad law, incorporating contradictory goals—in its effort to placate warring interest groups and to seem to be doing good. I believe there is a current power imbalance that checks presidential action in matters of national security that were misguidedly enacted during the nation's over-reaction to Watergate and Vietnam and which have, ever since, hindered the executive branch's ability to do its job effectively—including to address dangers from terrorist networks about which many workers in government knew, as these individuals have since disclosed in scores of books. Many sensed the need to prevent the nation from attacks such as that which occurred on 9/11, but were paralyzed into inaction due to legal concerns that were sometimes overdrawn.

Some of the critics of presidential power today seem to seek to return the nation to an idealized system of government that has not existed in this country for more than 100 years. The world is far too complex, and the management decisions of modern government require too much information and expertise, to be left entirely to the hands of a legislature. Congress is a large and unwieldy committee which rarely comes together over any coherent vision. It is subject to news cycles and special interest lobbies. It readily and routinely delegates sweeping authorities to the President: to regulate the environment, education, welfare, the internet, and many other issues. Members of Congress are well aware that Presidents are directly accountable to the national electorate and that the executive branch can marshal greater expertise and information than it can. Less well understood is that the Framers of the Constitution insightfully designed the executive this way—to wield executive power, the power of action rather than rule, effectively and flexibly. For not everything is able to be addressed by rules. Foresight is simply not that perfect, and the meaning of language can be uncertain, after the fact. One might add that it is precisely those Presidents who used and expanded power most dramatically, that historians, political scientists, and law professors have always regarded as great. Though this may be a function of the human attraction to celebrity, and to drama.

Race is a good example of aggressive presidential leadership that we all applaud. President Lincoln relied on his power as Commander-in-Chief in the Civil War to unilaterally free the slaves. President Truman did the same in desegregating the armed forces. President Kennedy on his own authority prohibited government contractors from discriminating on the basis of race.

It is worth remembering that Congress did not authorize Presidents to take any of these actions.

© 2008 by John Yoo. All rights reserved c/o Writers' Representatives LLC. reprint requests, contact lynn@writersreps.com