The Accountable Presidency

by Jack Goldsmith | February 1, 2010

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

By John Yoo

(Kaplan, 544 pp., $29.95)

Bomb Power: The Modern Presidency and the National Security State

By Garry Wills

(Penguin, 288 pp., $27.95)

 

I.

In December 2008, Chris Wallace asked Vice President Cheney, “If the president, during war, decides to do something to protect the country, is it legal?” Cheney’s answer included a reference to a military authority that President Bush did not exercise. “The President of the United States,” he said, “now for fifty years is followed at all times, twenty-four hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States.” The vice president added that the president “could launch the kind of devastating attack the world has never seen” without checking with Congress or the courts, and noted also that “he has that authority because of the nature of the world we live in.” And then he shifted to the war on terrorism: “It’s unfortunate, but I think we’re perfectly appropriate to take the steps we have.”

Garry Wills and John Yoo have written books that, in very different ways, analyze the conception of presidential power inherent in Cheney’s statement. Wills does not like what Cheney and his boss did with the presidency after September 11. But perhaps in reaction to Cheney’s statement, which he reproduces in his introduction, Wills has looked back and determined that the problem lies less with the Bush administration, which he blames plenty, than with the institution of the presidency, which became too powerful when it was given control of the bomb in the 1940s. Yoo, a legal architect of many of the Bush administration counterterrorism policies that Wills detests (and some of which I had a hand in revising), also looks to history to explain the Bush presidency, but he takes a longer arc. He analyzes the origins and subsequent growth of presidential power, with emphasis on how presidents have used their powers aggressively in crisis, and concludes that the Bush administration actions “fell within the precedents set by earlier Presidents.”

These books nicely frame the debate about the Bush administration’s place in constitutional history. On the surface, Wills’s and Yoo’s arguments are unsurprising. Since the 1970s, and especially since September 11, we have grown accustomed to liberals arguing against, and conservatives arguing for, broad presidential power. But their arguments become more interesting, and revealing, when placed in their broader context. During the century from the end of the Civil War to the middle of the Vietnam war, liberals in the United States mostly supported, and conservatives mostly opposed, a powerful presidency. Among the many remarkable aspects of these two books is that Yoo appropriates the mid-twentieth-century liberal case for a strong national-security presidency, while Wills articulates mid-twentieth-century conservative concerns about an out-of-control one.

 

Liberals at the dawn of the Progressive era believed that the traditional American system of checks and balances--with its mechanisms of indirect democracy, and its dispersion of power among state and federal governments and between Congress and the president--led to corrupt, inefficient, and unaccountable government that was unsuited to the social and economic challenges of post–Civil War industrial society. “There has been a vast alteration in the conditions of government,” Professor Woodrow Wilson argued in 1885, and “the checks and balances which once obtained are no longer effective.”

These alterations changed the “living” Constitution, Wilson later argued, for “the underlying understandings of a constitutional system are modified from age to age by changes of life and circumstance and corresponding alterations of opinion.” The contemporary Constitution, properly understood, should centralize power in national administrative institutions under the control of an agenda-setting president who alone, in virtue of his national election, embodied the national interest. “The President is at liberty, both in law and conscience, to be as big a man as he can,” Wilson declared. “His capacity will set the limit; and if Congress be overborne by him, it will be no fault of the makers of the Constitution.”

Formal centralization of presidential power and agenda-setting unilateral presidential action: these were the tenets of the executive power that guided progressive thinking from Theodore Roosevelt to Lyndon Johnson, not only in domestic affairs but also in military and foreign affairs. “The initiative in foreign affairs, which the President possesses without any restriction whatever, is virtually the power to control them absolutely,” wrote Wilson in 1908, capturing the presidential philosophy of the incumbent Roosevelt and anticipating his own attitude in office.

Much more significant were the aggrandizing military acts of our two greatest war presidents. Lincoln met the secession crisis by exercising Congress’s power to raise armies, spend federal money, and suspend habeas corpus, and by detaining thousands without charge or due process, in defiance of the chief justice of the Supreme Court. Franklin D. Roosevelt, too, exercised broad prerogative powers before and during World War II. Liberals approved or tolerated the theories of presidential power on which these acts rested, because that power had been used to preserve and extend liberty and equality.

They continued to approve when the Soviet threat and the broader Cold War led to permanent and still underappreciated expansions in the constitutional powers of the president. Rather than fully demobilize, as in past wars, the government maintained a multimillion-person peacetime standing army for the remainder of the Cold War, and in 1947 it established new institutions--including the Office of the Secretary of Defense, the Joint Chiefs of Staff, and the National Security Council--to manage the peacetime military bureaucracy. These and similar institutions concentrated unprecedented authority in the president, which Harry Truman was quick to exercise. Most momentously, in 1950, without congressional authorization or consultation, he dispatched American troops to defend South Korea from North Korean attack and announced his intention to send four divisions (about 100,000 men) to a NATO force in Europe.

In a famous speech in the Senate in January 1951, Senator Robert Taft, the mid-century leader of the Republican Party, blasted Truman and the emerging Cold War presidency. Taft was a foe of the New Deal, a critic of Roosevelt’s aggrandizing pre-war maneuvers, and an isolationist by reputation, but these positions were grounded in an obsessive concern about the concentration of too much power in the executive. In 1951, he charged that Truman had “simply usurped authority, in violation of the laws and the Constitution, when he sent troops to Korea.” Taft was, if anything, more upset about the troop deployment to Europe, which he said lacked authorization and would require a peacetime military buildup that would “result in turning the United States into a garrison state.” The matter, he argued, “must be debated and determined by Congress and by the people of this country if we are to maintain any of our constitutional freedoms.” But far from consulting Congress, Truman here and elsewhere had engaged in a “general practice of secrecy in all the initial steps of foreign policy,” which had deprived Congress of its constitutional powers.

 

Liberal intellectuals, notably Arthur Schlesinger Jr. and Henry Steele Commager, were quick to attack Taft and to defend Truman. Schlesinger called his arguments “demonstrably irresponsible,” and noted that presidents “have repeatedly committed American armed forces abroad without prior congressional consultation or approval.” Taft was “rewriting American history,” Schlesinger concluded, and trying to “foist off … current political prejudices as eternal American verities.” Commager recounted many instances when presidents had involved the nation in war without consulting Congress, and added that Truman was on even firmer ground because “treaties are laws” and the U.N. Charter and the North Atlantic Treaty required American action that must “be left to a large extent to the discretion of the Executive.” Commager also argued that there was no historical basis for distrusting powerful presidents. “Call the roll of the ‘strong’ Presidents--those who have used the executive power boldly--Washington, Jefferson, Jackson, Polk, Lincoln, Theodore Roosevelt, Wilson, Franklin Roosevelt,” he said. “None of these presidents threatened democracy or impaired the constitutional system. It is, on the contrary, the ‘weak’ Presidents--men like Fillmore and Buchanan and Harding--who bring democracy into disrepute and expose the Constitution to grave perils.”

This liberal view of the “heroic” presidency, with its enthusiastic embrace of broad presidential powers, would persist well beyond the Truman administration. Liberals cheered when the Eisenhower administration invoked absolute “executive privilege” to shield government officials from Joseph McCarthy’s communist-hunting investigations, and when he defeated Senator John Bricker’s attempts to limit the treaty power and presidential executive agreements. They raised no serious constitutional objection to President Kennedy’s Bay of Pigs operation in 1961, or his naval quarantine of Cuba in 1962. And in 1964 they enthusiastically endorsed the Gulf of Tonkin resolution, sponsored by Senator William Fulbright, which gave Lyndon Johnson expansive military discretion in Southeast Asia. Every Democrat in the House voted for the resolution, and The New York Times praised its breadth. “The president has rightly asked that the resolution express a determination that ‘all necessary measures’ be taken,” reasoned the Times, which added that “no one else [but the president] can play the hand.”

When the FDR hagiographer James MacGregor Burns published a Presidential Government, a paean to the subject, in 1965, he reflected widespread and long-held liberal conventional wisdom. But after 1965, the downward spiral in Vietnam and then the horrors of Watergate would quickly undermine liberal confidence in the heroic presidency. By 1968, Commager was complaining in these pages about the “intransigent problem of the abuse of presidential power,” and in 1971 he testified before the Senate that “it is very dangerous to allow the president to, in effect, commit us to a war from which we cannot withdraw, because the war-making power is lodged and was intended to be lodged in the Congress.” Schlesinger, who had written admiring biographies of Jackson, Roosevelt, and Kennedy, converted from establishment cheerleader for the heroic presidency to the leading critic of what he called “the imperial presidency.” His book of the same name appeared in 1973, and its subject was presidential excesses at home and abroad. Robert Taft “had a much more substantial point than [I] supposed twenty years ago,” Schlesinger acknowledged.

Senator Fulbright, for his part, was regretting Congress’s failure to check the president in Vietnam, in his book The Arrogance of Power in 1966. As chairman of the Senate Foreign Relations Committee, he helped lead the charge to defund the Vietnam war and to shepherd to completion the historic War Powers Resolution of 1973, which sought to check unilateral presidential militarism. Congress in the 1970s, with broad liberal support, would enact scores of other historic reforms to check what it viewed as the war-prone and excessively secretive president, including landmarks of presidential accountability such as the Freedom of Information Act, the Foreign Intelligence Surveillance Act, the Presidential Records Act, the Inspector General Act, the National Emergencies Act, and laws to enhance congressional oversight of intelligence and covert operations. Since these 1970s reforms, and in an era dominated by Republican and moderate Democratic presidents, liberal pundits and intellectuals have usually been opposed to broad assertions of presidential power, especially those touching on military affairs and national security. This movement reached its apex, of course, after September 11.

 

II.

For most of the twentieth century up through the Vietnam war, conservative theorists followed a mirror-image path. During the Progressive era and the New Deal, they rejected “living constitutionalism” and were committed to the legally constrained presidency that they believed the Constitution’s text and original understanding required. Conservatives detested the New Deal not only because they viewed it as redistributionist, wasteful, and harmful to private enterprise, but also because it created an enormous federal bureaucracy and sweeping centralized power in the presidency, contrary to the Framers’ vision. After the war, and with Robert Taft’s death in 1953, William Buckley’s National Review became the intellectual home of this conservative anti-presidential philosophy, and Congress and the American Tradition, a book by Buckley’s colleague James Burnham that appeared in 1959, became its intellectual bible.

Burnham culled the constitutional Framers’ writings to make the conservative case for a presidency bounded by indirect representation, congressionally centered checks and balances, states’ rights, and the deliberation and slowness of legal change that those structures guaranteed. For Burnham, every aspect of the mid-twentieth-century presidency was a constitutional solecism: the rise of “plebiscitary” or “Caesarist” presidents, who claimed a direct mandate from the people in virtue of their national election; the massive bureaucracy, which in both domestic and military matters “looms like a colossus” over the small and scantily staffed Congress; the president’s increasing reliance on emergency powers, at home and abroad, which he called “democratic despotism”; the “progressive undermining” of Congress’s investigatory power, by which the president, in the name of secrecy and under the guise of separation of powers, “has simply refused to supply information” in congressional investigations; and the ever-expanding scope of the treaty power, which “swell[s] the functions of the central government” and allows the president to operate “in virtual complete independence of Congress.”

Burnham supported the Korean war, but he criticized Truman’s dispatch of troops without congressional authorization. The Constitution assigned “the bulk of the sovereign war power” to Congress, he noted, adding that conservatives “are specifically opposed to the concentration of power in the executive to which nearly exclusive presidential control of foreign policy contributes.” Here Burnham silently touched on a large tension in post-war conservative philosophy. By the late 1950s, Burnham and most other conservatives were fierce anti-communists, who argued for action against the Soviet Union more aggressive than mere “containment.” They never fully reconciled this view--and the need for a large standing army and powerful presidency it entailed--with their fear of centralized presidential power. On the whole, conservatives “dejectedly” (as Buckley put it in 1955) accepted the minimal centralized state that their anticommunism implied.

Despite the anti-communist imperative, conservatives continued to criticize growing presidential power throughout the 1960s and into the Nixon administration. National Review, which did not exactly love Nixon, declared in an editorial in May 1974 that Watergate raised the question that conservatives had been pressing since the New Deal: “whether a free, democratic, constitutional republic can survive in our era of wars and revolutions or must evolve, like its Roman prototype, into a Caesarist mass democratism, in which the leader bases his rule on direct contact with the masses, bypassing the intermediary institutions of legislatures, courts, and local jurisdictions.” William Rusher, National Review’s publisher, wrote in the magazine later that year that Watergate would have a salutary effect on “a Presidency whose steadily growing power has for forty years been the most serious danger facing the American society,” adding that liberals “have not been overly generous about admitting that conservatives recognized and resisted that menace for decades before they did.”

 

But it was also during this period that conservatives, increasingly confident of their national majority, started to re-think their long-held suspicion of the presidency. When, in the late 1960s, Congress began to withdraw its support for the war in Vietnam that it had enthusiastically authorized earlier in the decade, many anticommunists began to question its viability as an institution of foreign policy decision-making. Barry Goldwater had argued for Congress’s primacy and against presidentialism as a conservative insurgent in the early 1960s, but by 1971, in the midst of the Vietnam debate in Congress, he said that he would “put more faith in the judgment of the office of the president in the matter of war-making at this time than I would of Congress.”

After Watergate, influential young conservatives such as Dick Cheney, Donald Rumsfeld, and Antonin Scalia, working in Gerald Ford’s White House and Justice Department, would form lifelong views about the importance of executive power while resisting the historically unprecedented congressional backlash against the imperial presidency. The rising influence of the formerly liberal neo-conservatives also brought with it an unabashed preference for a strong presidency in foreign affairs. In the mid-1970s Irving Kristol described the traditional conservative position on the presidency as “absurd,” and Norman Podhoretz charged that the congressional attack on the presidency damaged “the main institutional capability the United States possesses for conducting an overt fight against the spread of communist power in the world.”

Jeffrey Hart made the domestic policy case for a “shifting conservative perspective” on the presidency in National Review, just after Republicans in Congress had suffered huge post-Watergate mid-term losses in 1974. Conservatives can claw back the hated bureaucracy, Hart maintained, only “through the action of a powerful president who is willing virtually to go to war within his own executive branch in order to carry out his mandate.” He also argued that a major threat to conservative ascendancy was the powerful mass media that controlled public discourse. Flipping the fear of Caesarism on its head, he argued that the presidency was the only branch of government with “the capacity to contest the mass media where the focusing of opinion is concerned.” Hart concluded that “it seems both likely and desirable that the attitude of conservatives toward executive power will undergo a drastic shift.”

 

Hart’s prediction proved true. The shift came sharply, and almost imperceptibly among conservatives, with the election of Ronald Reagan. He was just what Hart envisioned: a conservative committed to using a powerful presidency to slay the bureaucracy, who also possessed the media savvy to circumvent the liberal press’s powerful agenda. Reagan was also a stern anti-communist committed to building up national defenses without the traditional conservative fear of a garrison state. The executive was the only branch of government that conservatives controlled at the time, and the only branch they believed they would control for a while. It was also a time of extraordinary intellectual ferment in conservative legal thinking, marked by the creation of the Federalist Society in 1982 and by the presence of an unusual number of young, smart, and motivated conservative lawyers in the Reagan White House and Justice Department, including John Roberts and Samuel Alito, Theodore Olson and Kenneth Starr, and Michael McConnell and Steven Calabresi.

It was in this context that a new conservative legal philosophy for a strong presidency came to maturation. Like their predecessors, conservative lawyers in the Reagan era rejected “living constitutionalism” and were devoted to a strict construction of the Constitution’s text as understood by the constitutional Framers. But in sharp contrast to earlier conservative thinkers, Reagan conservatives used these sources to bolster an unprecedentedly robust presidency. Focusing on three clauses in Article II of the Constitution, they recovered arguments that had largely been banished from conservative thought since at least the New Deal, but that had antecedents stretching back to the founding. Most fundamental was a broad reading of “the Executive Power” vested in the president, which they interpreted to include all traditional executive powers except for those specifically given to Congress. They also believed the president had an independent power to interpret laws incident to his duty to “take Care that the Laws be faithfully executed.” And they read the president’s designation as “Commander in Chief” to be a fount of substantive presidential authority over military affairs, some aspects of which were untouchable by Congress.

 In the 1980s, conservatives synthesized and deepened these old arguments into a new and unprecedentedly broad conception of presidential power. In 1989, an influential Department of Justice legal opinion, summarizing a decade of conservative theory and practice, described ten ways that Congress intrudes on exclusive executive branch authorities. “Only by consistently and forcefully resisting such congressional incursions can exclusive executive branch prerogatives be preserved,” it advised. And resist conservatives did, in books such as The Fettered Presidency, The Imperial Congress, and Energy in the Executive, and also on the ground. The new conservative synthesis undergirded the attack on the independent-counsel law, the many Reagan and Bush I dispatches of troops abroad without congressional authorization, and Representative Cheney’s minority congressional report on the Iran-Contra scandal, which blamed the Boland Amendment that Oliver North violated on “an aggrandizing theory of Congress’ foreign policy powers.”

The Clinton administration employed some of these arguments, but in a tempered way that gave more deference to Congress. But the arguments were back in full voice in the post–September 11 presidency of George W. Bush, and were marshaled in support of military commissions, the asserted power to disregard the torture statute, the Terrorist Surveillance Program, detention authority, and much more.

III.

John Yoo had a heavy hand in those policies, as is well known. It thus comes as no surprise that his rich history of presidential power provides a brief for the expansive post-Reagan conservative conception of executive power on which these policies rested.

Yoo’s account of the constitutional founding would have set James Burnham’s hat on fire. Burnham thought that the founders created a system of congressional supremacy based on (among other things) their discussion of the virtues of deliberation and representation, the length and the detail of the powers conferred by Article I of the Constitution, and Madison’s dictum that “in republican government, the legislative authority necessarily predominates.” Yoo argues that they created a system of presidential dominance based on (among other things) the Framers’ discussion of the virtues of unity, dispatch, and secrecy; Article II’s “open-ended” grant of executive power; and Hamilton’s dictum that “energy in the Executive is a leading character in the definition of good government.” Burnham praises the Constitution’s many checks on presidential “Caesarism”; Yoo praises the Constitution’s creation of “a republican executive to be elected by the nation as a whole, with a connection to the people independent of Congress.” Burnham thinks the president’s war power is a modern invention; Yoo thinks it is part of the Framers’ design. And so on.

What explains these diametrically opposed conservative constitutional visions? One answer--this is the general lesson of liberals’ embrace of presidentialism until the late 1960s, and of conservatives’ suspicion of it until then--is that constitutional theory is usually grounded in a theory of preferred outcomes. From the beginning of the nation, Schlesinger once noted, “views of the proper distribution of power between the Congress and the President depended a good deal less on considerations of high principle than on preferences about the uses to which power was put.” Burnham wrote near the end of an era in which American politics was seen as a prolonged fight between what his colleague Willmoore Kendall described as an invariably “liberal” president motivated by “high principle and enlightenment” and an invariably resistant and thus “conservative” Congress. Yoo writes at the end of three decades of Republican presidential rule interrupted only by eight years of a moderate Democratic presidency, in which the main conservative concerns, especially the bloated bureaucracy and national security, favor a strong presidency.

A second lesson is that the text and the original understanding of the Constitution often do not yield determinate answers concerning the separation of powers. Yoo is right to emphasize that the Framers--burned by their experience with the feckless executive power that the Articles of Confederation had lodged in Congress--created a strong and independent presidency that could enforce the law, and help maintain the national defense, and act swiftly in crisis. This is a point downplayed by Burnham and modern presidential critics, just as Yoo downplays the ways the Constitution sought to place legal checks on the president. The complicated truth is that the Framers had cross-cutting concerns about legislative and executive power and spoke in many voices. They worried about a too-weak Congress and a too-strong Congress and about a too-weak president and a too-strong president. The Constitution’s final allocation of power involved many compromises embodied in sometimes imprecise provisions that meant different things to different people and interacted in unpredictable ways.

Consider the famous debate in 1793 over the legality of George Washington’s unilateral proclamation of American neutrality in the ongoing European wars. Hamilton, writing as Pacificus, supported the proclamation based on a broad reading of the president’s “Executive power.” He also argued that the president’s authority to execute, and thus to interpret, treaties gave him the power to determine whether the United States was at war or at peace. Madison, writing as Helvidius, took issue with both points and accused Hamilton of trying to incorporate British royal prerogatives into the Constitution that had stripped the executive of the king’s power to determine war and peace. Within six years after they co-authored The Federalist Papers and five years after the Constitution was ratified, Madison and Hamilton sharply disagreed, each with plausible arguments, about what the Constitution says about a simple question of presidential power. The text and the original understanding of the eighteenth-century Constitution, taken alone, are less sure guides to presidential power in our very different world.

Yoo does not rest the entire edifice of modern presidential power on what happened in 1789. Madison wrote in The Federalist Papers that the Constitution’s provisions, “though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” Like many originalists, Yoo recognizes Madison’s truth, for he acknowledges “the importance of practice as a source of constitutional meaning,” and he devotes most of his book to analyzing presidential practice and the steady growth of presidential power over the course of American history.

Yoo’s story from the founding until Vietnam is the same basic story that liberals told about the heroic presidency in the middle of the last century. Yoo, like Commager, notes that our greatest presidents--the contemporary top-ten list is Washington, Lincoln, Franklin Roosevelt, Jefferson, Theodore Roosevelt, Reagan, Truman, Eisenhower, Polk, and Jackson--achieved victory or important progress in domestic and foreign affairs by using presidential power very aggressively to defy congressional and constitutional restrictions or to act boldly when Congress was silent. “Several of these Presidents were, in fact, responsible for some of the most explosive constitutional confrontations in American history,” writes Yoo, adding that “an enormous historical literature, indeed, trumpets their ‘great’ or ‘near great’ status precisely because they were so bold as to assert power with extraordinary vigor, and precisely in the most contested or doubtful circumstances.” Failed presidents, by contrast, are almost all ones--Yoo agrees with Commager that James Buchanan is a prime example--“who hold narrow visions of their powers, or those who are overly deferential to Congress” and thus who “experience failure in crisis.”

While Yoo’s heroic presidency tracks the old liberal story, he highlights aspects that support the modern conservative synthesis. He emphasizes that Washington’s neutrality proclamation was grounded in a theory of inherent executive power; that Jefferson the strict constructionist introduced to the presidency the notions of prerogative power and secret, unilateral covert operations; that many of Jackson’s great victories were premised on his asserted power, independent of Congress and the courts, to interpret laws; that Lincoln’s Emancipation Proclamation rested on a broad conception of his commander-in-chief authority, and sidestepped statutory procedures for freeing slaves; that FDR unilaterally ordered domestic wiretaps in defiance of a congressional ban; and that our greatest Cold War presidents--Truman, Eisenhower, and Reagan--succeeded through “presidential activism abroad.”

What explains the striking identification of presidential greatness with the aggressive use of presidential power? Why is it, as Clinton Rossiter wrote half a century ago, that a president who “is not widely and persistently accused in his own time of ‘subverting the Constitution’ … may as well forget about being judged a truly eminent man by future generations”? The main answer, as Yoo notes, is that great presidents are those who succeed in crisis, and success in crisis often demands that the presidential virtues emphasized by Hamilton--“decision, activity, secrecy, and dispatch”--be employed in ways that test or exceed traditional constitutional limits. A related point is that we tend to judge presidential action by the quality of its outcomes, and not by compliance with backward-looking conceptions of constitutional norms. Roosevelt is praised for his bold but constitutionally dubious unilateral actions before and during World War II, but Johnson is pilloried for his “unconstitutional” war, even though it was, until the very end of his term, funded and approved by Congress.

Of course, bold presidents can also be disasters. Vietnam and Watergate caused liberals to rethink the heroic presidency, but Yoo sees the presidencies during this period, especially Nixon’s, as the temporary deviations of a still-heroic presidency. “The problem with Watergate was not the Presidency itself,” he writes, “but the man who used the powers of the office to advance and protect his personal interests.” And while many see the presidency of George W. Bush as a dramatic deviation from past constitutional practice, Yoo thinks it acted “well within the example of past Presidents.”

Yoo is right that most of Bush’s controversial counterterrorism programs can find a precedent, and often many, in the actions of past great presidents. Why, then, was Bush judged so harshly not just by people on the left, but also by the general public and even by some on the right? There are many reasons. One is that the Islamist terrorist threat is invisible to many. Another is that, as Yoo notes, “we are still living through the period of threat,” and only with the benefit of hindsight can we know “whether Bush’s aggressive use of executive authority was too much, too little, or just right.” The tradition of the heroic presidency views Lincoln’s and Roosevelt’s Constitution-stretching actions in a benign light because their crises were apparent to all, and because they used aggressive presidential powers to achieve great ends. Bush, by contrast, operated in a world in which the threat was contested, rendering aggressive presidential action, based on precedents from undoubted crises, suspicious--a suspicion exacerbated by the administration’s frequently proclaimed desire to expand its powers. And Bush left office in the middle of the war, without the hindsight glow of approval that victory may bring.

The Bush administration compounded these challenges, of course, by acting unilaterally in several key areas without seeking the consent of Congress. Yoo stands by the constitutionality of this approach. “Of course, cooperation between the President and Congress on national security policy is politically desirable, but it has never been constitutionally necessary,” he claims. Our constitutional tradition shows that presidents can and must exercise prerogative powers in the short term of a crisis, sometimes even in defiance of Congress. But that this is not the whole of the story. It also emphatically shows that when the crisis lingers, presidents must receive the approval of the other branches of government. The paradigm is Lincoln’s famous speech of July 4, 1861 in which he laid out before Congress the emergency extra-constitutional steps he had taken in response to the secession crisis that spring, and sought Congress’s approval.

The early Bush administration failed to see that the legitimating constitutional price for the presidential power that it revered was the congressional consent that it abhorred. It failed to recognize that unilateralism was destined to fail over the medium term, especially in a crisis that was so novel, hard to gauge, and open-ended. It failed also to recognize that the president’s power would be legitimated and made effective only by securing the consent of the other institutions of government.

 

Garry Wills has been a man of the left for a while now, but he began his career at National Review in the 1950s, where he doubtlessly absorbed then-conservative concerns about the Cold War presidency. Traces of these concerns appear in his new book, but they have spun out of control, and he has produced an unilluminating rant.

Wills believes that the atomic bomb “altered our subsequent history down to its deepest constitutional roots” by fostering a militarized and crisis-filled society that centralized unprecedented power in the president and re-defined the government “as a National Security State, with an apparatus of secrecy and executive control.” This happened, Wills says, because the president’s “sole authority to launch nation-destroying weapons” gives him “license to use every other power at his disposal that might safeguard that supreme necessity” and causes Congress and the courts to acquiesce in presidential power. In this way, the bomb gave rise to institutions and practices that are responsible for all of the evils of the modern presidency, including the secrecy system, unilateral presidential war-making, CIA assassinations, dictator-coddling, unitary executive theory, presidential signing statements, executive orders, Watergate, Iran-Contra, torture, and more. Only the president “had the supreme power, the Bomb, and all else must defer to it, for the good of the nation, for the good of the world, for the custody of the future, in a world of perpetual emergency superseding ordinary constitutional restrictions.”

The problems with Wills’s thesis begin with his obsessive focus on the atomic bomb--as opposed to the Cold War to which it contributed--as the source of all subsequent presidential evil. Yes, the placement of a nation-destroying weapon in the president’s hands contributed a lot to the rise of presidential power. But the Soviet menace, which Wills downplays in independent significance, was the primary cause of the security anxiety that produced the national security state after World War II. The possession of the bomb, moreover, had a mixed effect on the national security state, which Wills misses altogether. In the political fights over military budgets in the 1940s and 1950s, the atomic and thermonuclear bombs were viewed as relatively inexpensive weapons that provided significant deterrence--what became known, rather morbidly, as “a bigger bang for the buck.” These weapons were substitutes for an even larger conventional military buildup against the Soviet threat--a buildup that, but for the bomb, would have brought the United States closer to a garrison state.

If we set aside Wills’s insistence that the bomb itself is the poisonous apple, and focus more broadly on the congeries of factors (including the bomb) that led to the Cold War, then Wills is correct that the United States has been in a more or less permanent emergency since the late 1940s, and that this state of alert led to the development of institutions, responsibilities, and practices that forever changed the presidency. But Wills wildly exaggerates the reach of these constitutional changes. The national security state is responsible for many things, but it is not, as he claims, responsible for the Bush administration’s asserted power--sometimes in signing statements--to decline to enforce laws that it believed violated the Constitution. This is not a “new” practice. It goes back at least to the nineteenth century, and it has been asserted by many presidents, including many before World War II. The practice has grown in modern times with increases in the size of government and the scope of congressional regulation of the executive, but presidents frequently invoke it concerning ordinary domestic issues as well as national security issues. It has nothing to do with the bomb.

Nor is Wills right to claim that the “main reason” Congress and courts have deferred to modern presidents’ use of “Executive Orders” is “the Bomb.” Executive orders are presidential directives that rely for their authority on statutes, treaties, or a constitutional provision. Congress and the courts have permitted them not for fear of making the president look weak, as Wills claims, but rather because it is a perfectly legitimate exercise of executive power. While presidents have issued executive orders since the beginning, the practice has grown naturally with the size of government, and it too applies in many contexts that have nothing to do with national security. Executive orders have, in fact, been a central tool of the heroic presidency in achieving domestic reform. On race relations, for example, Truman used an executive order to desegregate the military; and Eisenhower used one to enforce Brown v. Board of Education in the South; and Kennedy and Johnson used several to promote racial equality in other governmental functions, and to establish early government programs on affirmative action.

Wills makes similar mistakes about unitary executive theory, but larger problems mar his book as well. He recounts in loving detail the bad acts of the powerful modern presidency, but he considers none of its virtues or successes (including its success in guiding us to a safe conclusion of the Cold War), and thus makes no effort at a balanced accounting. His entire argument is premised on a “fondness for the quaint old Constitution” of 1789 with the notion of executive power that prevailed at that time. He does not defend this unsubtle originalism, nor explain how he would reconcile it with his fondness for modern constitutional innovations such as the New Deal, abortion rights, and free political speech. Nor does he try at all to come to grips with the massive social, political, technological, and other changes in the world that, like the invention of the bomb, have caused us to place more and more power in the president’s hands. “Lodging the fate of the world in one man, with no constitutional check on his actions, caused a violent break in our whole governmental system,” he maintains. Even if this were so, we cannot wish away the bomb any more than we can wish away other enormous changes in the world. Wills says nothing constructive about how government might be improved to meet these changes.

 

IV.

Though Wills and Yoo have very different views on executive power, they agree that congressional efforts to check the ever-growing presidency--and especially the famous congressional reforms of the 1970s--were largely useless. Wills says these laws struck only “glancing blows” at executive power, and that Congress has largely capitulated to executive aggrandizement. Yoo says that presidents “worked around many of” these laws, which “proved somewhat toothless.” Wills decries this result; Yoo admires it. And both are wrong about the premise.

Congressional reforms of the presidency have been far from toothless. In fact, they have accomplished a great transformation. They (along with judicial and other innovations) changed the unprecedentedly powerful post–Cold War presidency into one that is also unprecedentedly accountable. It is hard to know whether the most famous of these reforms, the War Powers Resolution, has slowed presidential war-making much (though it is worth noting that every president has complied with its reporting requirements, and no president has defied it on constitutional grounds). It is clear, however, that the many other reforms made the presidency much more accountable to Congress, the courts, and the public.

Presidents used to wiretap at will in the name of national security, but now they must comply with complex criminal laws and get the approval of a secret court. Presidents used to conduct covert operations without any accountability, but now they must comply with elaborate restrictions and report all important intelligence activities to Congress in a timely way. Presidents used to have carte blanche in interpreting or ignoring international human rights law and the laws of war, but now these laws are embodied in complex regulations and criminal statutes that touch on every aspect of military and intelligence operations. Presidents used to hide information easily, but now they must take extraordinary steps to maintain records and give the public broad access to internal documents. Quasi-independent inspectors general that were viewed as unconstitutional during the Reagan revolution are now well-established auditing and investigatory thorns in the president’s side.

There are many other examples, but perhaps the best indicator of the impact of law on the presidency is that the CIA has well over one hundred lawyers, and the Department of Defense has over ten thousand, not including reservists. These lawyers--and many tens of thousands of other lawyers in other agencies--devote their days and many of their nights to ensuring that the extravagantly regulated executive branch complies with the law and with numerous forms of ex post accountability--inspector general audits, congressional investigations and queries, reporting requirements, and testimony before Congress--that influence executive behavior before the fact.

This massive change in accountability to Congress has been mirrored in our other institutions--in courts, which (owing to the prevalence of law in this area, and to changes in constitutional norms) are significantly more involved in adjudicating executive conduct of war and intelligence; and in the media, which is much more aggressive and successful than ever in ferreting out government secrets. The president retains the initiative in war and intelligence, to be sure, and he has discretion in choosing where to lead the nation, especially in crisis. Yet his decisions are widely and deeply regulated, both before and after execution.

The increasingly powerful but increasingly law-bound presidency is the key to understanding the remarkable extent to which President Obama has continued the counterterrorism policies of his predecessor. Obama has cut back the Bush program on interrogation and black sites, though not as much as most people think. He has supported tiny congressional modifications to military commissions, but he has persisted in their use. He has controversially insisted on a civilian trial for Khalid Shaikh Mohammed, but this is less of a change than critics suggest, as the Bush administration often used civilian trials for terrorists, including the September 11 plotter Zacarias Moussaoui, the Al Qaeda agent José Padilla, the “shoebomber” Richard Reid, and the “American Taliban” John Walker Lindh. Obama has replicated Bush’s legal arguments concerning detention, habeas corpus, and state secrets. And he has embraced, and indeed ramped up, the Bush approach to targeted killing and rendition.

Obama is not by a mile the first president to come to office as a critic of presidential power and then switch on the job. Jefferson, Lincoln, and Nixon, among others, maligned broad assertions of presidential power before entering the executive branch. The president has enormous responsibilities for our safety and many legitimate powers to meet them, both of which are difficult to appreciate before assuming the office. And as Schlesinger once observed, “power always look[s] more responsible from within than from without.”

But there is another explanation for the Obama continuation of Bush policies. Almost every aspect of the early unilateral Bush counterterrorism program has been pushed back against or modified, and ultimately blessed, with accountability strings attached by Congress or the courts or both, with an assist from the ever-critical press. One important reason why Obama embraced so much of the Bush program as it stood in 2008 is that most of this program had been vetted--and restrictions, guidance, review, and reporting and internal monitoring requirements imposed--by the other branches of our government. The enhanced powers of the presidency after September 11 have become part of the national fabric, in short, because they have received the consent of our national institutions, and thus of the people themselves.

There is an important constitutional lesson here. The presidency has grown in power over two centuries and more, because massive changes in domestic and international society have made it necessary to centralize power in a hierarchical, relatively secretive, quick-acting executive. This presidential growth was not, as Yoo argues, anticipated by the Framers in Article II. Yet the Framers did create a structure of divided government that gave to each branch the motives and the constitutional tools to check the other branches. This structure did not prevent the presidency from becoming very powerful, but it did provide a way to create compensating adjustments through novel accountability mechanisms for presidential power that translate, in a rough way, the Framers’ original design. These compensating adjustments are far from perfect. Congress is sometimes slow to exercise its constitutional responsibilities, and when it does act, it often does too much or too little. But Congress does act with consequence, not infrequently, as do the courts; and the larger picture is one that preserves the original idea of a balanced constitution with an executive branch that remains legally accountable despite its enormous power.

Jack Goldsmith, author of The Terror Presidency (W.W. Norton), served as an assistant attorney general in the Bush administration. He teaches at Harvard Law School and is a visiting fellow at the Hoover Institution at Stanford University.

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