Books mentioned in this essay:

Outside the Law: Emergency and Executive Power, by Clement Fatovic

In 1915, Herbert Croly pithily captured the sentiment of Progressive intellectuals by declaring that their mission was to "liberate democracy from the bondage of law." Croly wasn't advocating general anarchy. He had in mind the Constitution's ethos of individual rights and limited government, which, he argued, prevented Americans from appreciating the virtues of a collectivist democratic state. Progressives differed widely on political strategy and tactics, but they were as one in believing that the Constitution was imprisoned in an 18th-century mindset that crippled the government's ability to address current social and economic needs. This conviction, whether explicitly stated or merely assumed, has dominated most academic studies of government ever since.

Despite the Hundred-Years War against the old Constitution, however, the framers' ideas have refused to go gently into their good night. As political scientist Jeffrey Tulis has noted, we are today governed by two warring constitutional cultures—an old order, still resonant of the framers' understanding, which has been undermined but not defeated; and a new order, reflecting Progressive assumptions, which has been successful but not triumphant. An analogous tension may be observed in debate concerning the nature and scope of executive authority, though here the tension exists as much among liberals and conservatives as between them. Members of both camps fret about executive excess (for liberals, mainly in foreign policy; for conservatives, mainly in domestic policy), to which the preferred cure in each case seems to be enactment of statutory controls. Others worry that the recommended cure may be worse than the disease. The dilemma is particularly acute for liberals, who fear that taming presidential discretion in foreign affairs (at least of the sort they dislike) may undermine the case for presidential discretion aimed at regulating economic and social behavior (which they very much support).

Power to Persuade

For much of the past half-century, liberalism's approach to the presidency has been massively influenced by Richard E. Neustadt's Presidential Power (1960). Published when liberals' faith in the presidency was approaching its romantic zenith, the book survived Camelot and became a staple of political science courses for the next 30 years. Like most heirs of Progressive thought, Neustadt saw the constitutional separation of powers as something to be suffered; he understood its checking function, but not its empowerment of executive independence. Presidents would remain weak if they took their cues from what Neustadt (following Woodrow Wilson) derided as "the literary theory of the Constitution."

But he also worried that presidential initiative had been sapped by the manifold, conflicting governmental demands that Progressivism itself had created. He called therefore for a pragmatic reassessment of the modern presidency, resting on the assumption that the Constitution created not separation of powers but only "separated institutions sharing powers." What matters in the end are not fine constitutional distinctions about types of power, but who possesses it and how it is used. Although the Constitution had stacked the political deck in Congress's favor, presidents held a playable hand. Presidential success, however, would depend more on the personality and retail political skills of the man in the White House than on the parchment powers conveyed by Article II. A president should therefore pay less mind to the formal authorities of his office, and relatively more to the mundane tasks of convincing others that his lead should be followed. Hence Neustadt's much-quoted conclusion that the power of the president was "the power to persuade." Again echoing Wilson, Neustadt believed that a president could succeed only by learning to bypass what he thought of as constitutional rigidities. Presidential Power was his Machiavellian instruction manual teaching presidents how to do just that.

Neustadt proffered many shrewd observations about the operational and political imperatives of the modern bureaucratic presidency. But he radically underestimated how much of a president's actual influence derives from his constitutional authority. He also failed to see how our most notable presidents had relied on that authority and used it to great effect. Considered in this light, "the power to persuade" ends up being neither a novel nor even a necessarily energizing concept. Perhaps the most remarkable feature of Neustadt's pithy rule is not its substance, but that it was greeted as a dazzling insight that had hitherto escaped notice. As many presidents might have suggested, the really interesting question is what happens when the power to persuade, as Neustadt defined it, fails to produce results a president considers essential to the national interest. For all of Neustadt's sophistication, Jimmy Carter came closer to grasping the essence of the presidency when he remarked in his debate with Ronald Reagan that on important questions, presidential advisors are almost always equally divided. He might have said the same of Congress, interest groups, and public opinion. With due respect to Neustadt, any president who confined his learning to Presidential Power, without inquiring more deeply into the meaning and matter of Article II, would weaken himself by engaging in unilateral constitutional disarmament.

By misunderstanding the separation of powers and the extraordinary breadth of constitutional executive authority, Neustadt's argument was bound to encounter difficulties. These became apparent soon enough, when the Vietnam War and the Watergate scandals raised long-forgotten questions about the constitutional consequences of presidential government. Scholarly commentators who had for years praised the development and benefits of modern presidential prerogative, particularly as exemplified by Franklin Roosevelt, now warned about the dangers of an "Imperial Presidency." This led them, willy-nilly, to revisit the debates surrounding the creation of the office, if only to acquire rhetorical ammunition. Whether the right lessons emerged from this encounter was less significant than that the framers' deliberations, so cavalierly dismissed by generations of Progressive scholars, were now looked to at all.

Return to the Founding

In what might be called the first wave of revisionism, during the late 1960s and '70s, scholarly inquiry exhibited a certain partisan tendentiousness. Even while railing against real and imagined excesses of Presidents Johnson and Nixon, most liberals continued to embrace the theory of the presidency inherited from Wilson and the two Roosevelts. Nevertheless, a door had been opened upon the past, and through it stepped scholars who inquired into the background and substance of the framers' opinions, this time no longer as mere artifact but as a source of permanently important wisdom on the question of executive power. Particularly noteworthy in this regard was the appearance in 1981 of The Presidency in the Constitutional Order, a collection of essays edited by Joseph Bessette and Jeffrey Tulis. The title tells all. Written in the wake of the failed presidencies of Johnson, Nixon, and Carter, the volume's diverse contributors restated the case for executive energy based on the Constitution's original understanding, and in so doing challenged many of the Progressives' theoretical and historical claims.

Bessette, professor of government at Claremont McKenna College, and Tulis, associate professor of government at the University of Texas at Austin, have now produced a second collection entitled The Constitutional Presidency. The general theme is similar to that of the first volume, but the focus is somewhat narrower. The editors' revised introduction presents a succinct summary of the major literature on the presidency. Bessette and Gary Schmitt follow with a highly original analysis of Article II's design, focusing on the distinction between powers and duties.

In a separate offering, Schmitt reexamines the controversy surrounding George Washington's Neutrality Proclamation, shedding new light on that much-studied episode. Tulis does much the same in a fine chapter on the impeachment power, while Lance Robinson shows how Theodore Roosevelt and William Howard Taft, in quite different ways, altered subsequent presidential practice.

David Nichols thoughtfully addresses deeper constitutional implications of Bush v. Gore (2000) that for the most part went unnoticed by the legal professoriate. Other penetrating essays examine the recent controversy concerning military tribunals; the modern history of executive orders and their relation to implied executive power; the constitutional incoherence of the modern budget process; and the constitutional impasse that occurs when Congress requests information that presidents refuse to provide—a problem for which a political rather than a judicial resolution is typically preferable. Finally, in a characteristically thoughtful and wide-ranging essay, James Ceaser offers his reflections on the ever-present danger of demagoguery and how the Constitution, along with the customs and institutions that have developed under its influence, tries to diminish the threat.

The collection confirms that presidential behavior has always been, and continues to be, decisively shaped by the nation's constitutional structure and that, for all the political and social changes since 1787, the framers still have much to teach us. As with the predecessor volume, this new collection will repay close reading.

Unilateral Control

The Unitary Executive: Presidential Power from Washington to Bush, by Steven Calabresi and Christopher Yoo, is also a praiseworthy exercise. The authors are principally concerned with presidential efforts to direct the administration of government. Studies abound on the subject, but in their engagingly written volume Calabresi, a professor at Northwestern Law School, and Yoo, a professor at the University of Pennsylvania Law School, focus on constitutional dimensions that tend to get lost in the literature. By choosing to treat the subject chronologically, they reveal a remarkably consistent pattern of constitutional interpretation and behavior that is often obscured. Their argument, in a nutshell, is that the Constitution gives the president unilateral control over the execution of law, and that he may consequently direct the actions of executive subordinates and, if need be, remove them.

Their proposition may be arguable, or perhaps undesirable on policy grounds, but it is hardly revolutionary. Nevertheless, the idea of "the unitary executive" in these days has become heavily freighted with ideological baggage. Leftist critics of the concept see it as a fiendish cover for the expansion of unrestrained executive power at the expense of Congress and the people's liberties, imagining an endless line of presidents in thrall to Dick Cheney's understanding of presidential prerogative. Liberal hysteria notwithstanding, Calabresi and Yoo are in fact quite modest in their claims: to them, the idea of the unitary executive means simply that if a function is executive in nature, Article II's Vesting Clause meant to convey control of that function to the president. Or, as Justice Antonin Scalia put it in his dissent in Morrison v. Olson (1988), when the Constitution refers to "‘[t]he executive Power'…this does not mean some of the executive power, but all of the executive power…." (Emphasis added.)

Calabresi and Yoo's originalist interpretation begins with the Constitutional Convention's decision to vest executive authority in a single person. They note early legislative debates, judicial decisions, and commentaries that drew upon the logic of that decision to resolve constitutional silence on the removal power (the Constitution says that the president shall nominate and the Senate approve high executive officials, but it does not specify who has the power to remove them) in favor of the president. The authors recount this part of the story accurately enough, but one wishes they had paused to reflect on early arguments concerning the need for broad discretionary authority in the executive. For how one weighs the historical evidence may depend less on close textual analysis than on one's theoretical understanding of the case for executive energy as a necessary ingredient of republican government.

Calabresi and Yoo's most convincing evidence lies in their historical examination of presidential opinions and actions from George Washington's day to our own. Along the way, they present four case studies that neatly encapsulate their thesis. These deal with, respectively, Andrew Jackson's war with Congress over the national bank and his removal of Treasury Secretary William Duane; Andrew Johnson's defiance of the Tenure of Office Act and his subsequent impeachment by the House; the Brownlow Committee Report and Franklin Roosevelt's effort to reorganize the executive branch; and finally, Bill Clinton's impeachment and the repeal of the Ethics in Government Act.

Although these cases cover generally familiar territory, they acquire new significance when retold by Calabresi and Yoo in the context of their overarching constitutional argument. Taken whole, the book demonstrates quite nicely that presidents have consistently sought to control the actions of all who are vested with the power to execute law and, with comparable consistency, have aggressively defended their power of removal. Progressive innovations (e.g., independent agencies) have tended to blur bright lines that once demarcated executive, legislative, and judicial powers; but even here the authors make a respectable case that, notwithstanding episodic and sometimes significant political concessions, presidents have seldom if ever acquiesced legally to constitutional arguments questioning their authority to control the administration of law and policy. Among the lessons to be drawn from the authors' analysis is that the Progressives did us no favors when they undermined the separation of powers.

In advancing their argument for the unitary executive, the authors make a point to disavow "the very broad claims of implied, inherent power" asserted by various presidents as "deviations from the more moderate general practice." If their point is merely that textual, political, and historical arguments for presidential control of administration can stand on their own, fair enough. But at critical junctures their thesis radiates a broader understanding of executive discretion than they seem willing to acknowledge. Can the case for executive control of administration be so neatly separated from the "implied, inherent power" of the presidency, as they insist? In their treatment of Jefferson, Jackson, Lincoln, the two Roosevelts, Nixon, Reagan, and George W. Bush, the authors see the connection but choose to avert their gaze.

Whether they do so for tactical reasons, or whether they are genuinely ambivalent about the matter, is hard to say. The book provides evidence for both suppositions. Either way, by focusing as narrowly as they do, Calabresi and Yoo run the risk of inadvertently diminishing the importance of the presidential office. On their showing, the president is, or at least ought to be, the nation's chief administrative officer; but that is only one, and by no means the most important, reason why we have the kind of presidency we do. Article II's larger purposes derive from the founders' recognition that broad discretionary authority is necessary to secure the ends of republican government. Behind that, in turn, are questions that, like a brooding omnipresence, have hovered over the executive since at least the time of John Locke: why is such discretionary power necessary at all, just how broad should it be, and can its exercise be entirely confined by law? Calabresi and Yoo would no doubt reply that they did not set out to write a comprehensive treatise on presidential power. So be it, but in case they do, they may want to consider Harvey Mansfield's Taming the Prince (1989), along with the works of Bessette and Tulis and our next three authors.

Executive Power in American History

Where Calabresi and Yoo fear to tread, John Yoo (no relation) has no hesitancy to march, all flags flying. Crisis and Command: A History of Executive Power from George Washington to George W. Bush is the indefatigable Yoo's third substantial book on presidential power in five years. These works, along with a slew of hefty law review articles, make him a formidable force in presidential studies, a writer whose opinions can be contested but are impossible to ignore.

Yoo's hard-left critics dismiss his arguments as so much ideological pamphleteering by a partisan hack who makes preposterous claims for unbridled presidential power. He has been particularly excoriated for his actions as deputy assistant attorney general in the Department of Justice from 2001–03, when he authored memoranda justifying, inter alia, the Bush Administration's incarceration of illegal enemy combatants, enhanced interrogation techniques, and the use of military tribunals. For his efforts, Yoo has been subjected to civil litigation, investigated by Justice Department attorneys for unprofessional conduct (despite their high-handed maneuvers, he has been exonerated), threatened with disbarment, picketed outside his classroom, and suffered attempts to have him dismissed as a professor of law at the University of California, Berkeley. These and similar gestures, which have all the characteristics of a politically motivated vendetta, seek to portray him as a corrupt or incompetent attorney whose views are outrageously beyond respectability.

Yoo's scholarly achievements, professional competence, and personal demeanor could not be more at odds with these nasty caricatures. Agree or disagree with his conclusions, his carefully researched and voluminous writings on presidential power meet the highest standards of scholarly endeavor. He deals fairly, even as he disagrees, with opinions that differ from his own. In interviews and debates, even when provoked by ad hominem attacks, he retains a remarkably cheerful civility, sticking to substantive arguments that he unravels with sure-footed competence that his opponents must surely envy.

The Left's real objection to Yoo is political: they do not believe that the war on terrorism is a real war or, if it is, that it should have been fought in the way Bush chose to fight it. If that weren't enough, Yoo has had the temerity to observe that broad executive discretion of the sort he endorses was once a major premise of liberal constitutional advocacy. His third crime, so to speak, is to root the case for "decision, activity, secrecy, and dispatch" (Alexander Hamilton's description of executive virtues in The Federalist) in the original understanding of Article II. And, finally, he not only defends this capacious Hamiltonian reading on historical and legal grounds; he also argues that it has been the constitutional leitmotif uniting the practice of our most celebrated presidents.

These hallmark themes are abundantly displayed in Crisis and Command. The book confirms Yoo's encyclopedic knowledge of historical practice and constitutional precedent. It also confirms that George W. Bush's bold assertions of executive power in time of war were hardly aberrational. Whether the emergency was as grave as the president believed is a judgment call about which thoughtful commentators can certainly disagree. Yoo readily acknowledges as much but argues that such judgments are essentially political, rather than legal, in nature. He notes that most of Bush's illustrious predecessors—Washington, Jefferson, Jackson, Lincoln, FDR, Truman, and Reagan—were also accused by their opponents of bad judgment and, one might add, bad faith. Yet history has confirmed their bold use of executive authority as a boon to the nation. Yoo is content to let history be the final judge of Bush's behavior.

It would be a mistake, however, to read Crisis and Command as Yoo's apologia pro vita sua or as a mere brief for Bush. The 43rd president occupies but a few pages in a nearly 500-page treatise. Rather, the book is an engaging, dispassionate discussion of the origin and development of executive power in American history. Yoo covers both domestic and foreign policy and fairly presents all sides in major controversies. Anyone who doubts this need only consult his chapter on FDR, which presents as balanced an assessment of the great man as may be found in a small space. He is comparably succinct and fair-minded in his treatment of the policies and personae of other great figures as well. His discussions of leading Supreme Court cases dealing with executive power are models of clarity, brevity, and evenhandedness.

Yoo has a definite point of view, which he advances openly and reasonably; but he believes the evidence can carry the burden of his argument. And the evidence he assembles is massive, not to say compelling. Other readers will no doubt disagree about the weight Yoo assigns to particular legal positions and political facts, but they will not be able to complain that he has left anything of historical importance out of his account. Crisis and Command may justly take its place among the best treatments of the subject now in print.

Extra-constitutional Measures

Yoo begins his book with a brief summation of modern political thought as it bears on prerogative—as Locke defined it, "Power to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it." Yoo thinks that Article II meant to constitutionalize something very close to Locke's definition of prerogative power and that legal reservations on the point (by Madison and Jefferson, for example) have been resolved in the president's favor by subsequent experience. He is not oblivious to the risks of vesting vast discretionary power in the president; he simply believes the nation has no other choice. He questions the legality and wisdom of statutory schemes (such as the War Powers Resolution or the Foreign Intelligence Surveillance Act) that seek to micromanage executive discretion in foreign and national security affairs. Congress has an arsenal of other powers it can deploy to reign in presidential excess, especially the power of the purse. Its problem is not the want of power, but political reluctance to use it—reluctance, Yoo would say, that tends to reinforce his argument for executive discretion.

Others no less devoted to national self-preservation would disagree. The difficulty of maintaining the delicate balance between prerogative and the rule of law, and how best to do it, are the focus of two fine new studies in political theory:The Discretionary President: The Promise and Peril of Executive Power by Benjamin Kleinerman, assistant professor of constitutional democracy at Michigan State University; and Outside the Law: Emergency and Executive Power by Clement Fatovic, assistant professor of political theory at Florida International University. Despite somewhat different theoretical emphases, Kleinerman and Fatovic agree that Yoo's argument goes much too far. Both recognize the necessity of prerogative during emergencies, but believe that Yoo's reading of Article II effectively guts the rule of law—or, put another way, uses the color of law to eliminate the possibility of law.

This, they believe, contravenes the spirit of liberal constitutionalism inherited from Locke. On Kleinerman's reading, Locke was no simple-minded legislative supremacist; but, even as he recognized the necessity for prerogative powers, he did not intend that prerogative should be trumps. If legislative supremacy underestimates the force of "accidents and necessities," as Locke called them, the routinization of prerogative would lull the people into complacency. A central purpose of the separation of powers, Kleinerman argues, was to force the executive to justify his use of prerogative as truly necessary to the preservation of liberty. A properly designed constitution, in other words, would enable civil society to have it both ways—prerogative to deal with unforeseen contingencies, and the rule of law to ensure that its exercise would not be abused. The United States Constitution seeks to strike the proper balance; but, Kleinerman argues, Hamilton's reading of Article II, especially in his Pacificus essays (written in 1793 to defend President Washington's Proclamation of Neutrality), tilts the balance too far in the direction of executive prerogative. It was Madison, he says, who, by questioning the thrust of Hamilton's argument for implied powers, got the balance right.

Fatovic would generally agree, although for slightly different reasons. His main theme concerns the irreducible necessity for virtue in a republic—in the people no less than in their chief executive. He argues that modern political theory's emphasis on creating institutional surrogates for the want of character will not avail. Government cannot be reduced to a machine, and although some institutional solutions are better than others, constitutional structures can accomplish only so much. At the same time, he agrees with Kleinerman that a well-constructed constitution will induce habits of mind and heart conducive to individual liberty and responsibility. And, like Kleinerman, he fears that if prerogative is understood as being within the ambit of the law, its use will become regularized; the governed, like the frog in the pot of slowly warming water, will be lulled into complacency. For that reason, he inclines toward the Jeffersonian belief that, although necessary, prerogative should be understood as extra-constitutional.

Hardly indifferent toward practical consequences, Fatovic is relatively more interested in tracing the political theory of the modern executive. Kleinerman, who is also deft in his handling of modern political theory, is relatively more interested in exploring the delicate balance between prerogative and the rule of law as it has worked itself out in American political experience. He looks to Lincoln as the proper model for emulation because Lincoln understood that extraordinary (and temporary) exigencies justified departure from the law; but by seeking and obtaining subsequent ratification from Congress for his actions, he made a deep bow to the supremacy of law and reminded the people that he was only the temporary steward of their Constitution.

Though his defense of Lincoln is powerful, the line Kleinerman says that Lincoln sought to draw may disappear under the press of modern exigent circumstances. Both he and Fatovic (the latter even more so) excoriate George W. Bush for attempting to constitutionalize prerogative on a regular basis. But this may not be, as they imply, merely a consequence of Bush's misguided thinking about the nature of his powers. Islamist-inspired terrorism presents dangers of a sort quite unlike any we have had to confront in the past, and they are likely to be with us for a very long time. And they may not be easily amenable to defeat in the form of set battlefield encounters. Modern weapons and communications technology, for example, enable the enemy (who neither recognizes the rules of war nor suffers the constraints of state actors) to strike from a distance with deadly effect.

The right policy for dealing with this threat is properly a matter for public debate, in which Congress and, at least indirectly, the people should be involved. But, operationally, only a president has the knowledge and the capacity to act quickly against the "accidents and necessities" that now confront us. That fact will very likely cause him to push the envelope of his discretionary power to the hilt, not for reasons of self-aggrandizement but for public safety's sake. Whether and how Congress should be informed of, or otherwise involved in, these operational details are, again, matters for debate; but, it is not immediately clear (other than on a high level of abstraction) how the lessons taught by Madison or Lincoln should apply to many features of the war against terror.

Kleinerman and Fatovic argue, for example, that President Bush acted too often without consulting Congress. Despite Bush's occasionally extravagant claims to unilateral power, the charge will not withstand much scrutiny. The record will show that Congress was reasonably well informed on most, if not all, of the larger issues, and that it either formally authorized, or acquiesced in, virtually everything he did.

All of which may simply be to suggest that refined understanding of a problem may not yield much in the way of practical results. As Locke, Hamilton, Madison, Jefferson, and Lincoln all recognized, albeit in different ways, self-preservation is the first goal of liberal constitutionalism. One can only speculate about the advice they might have given President Bush under circumstances they could scarcely have imagined—or whether our constitutional order would be necessarily better off if he had listened.