Crisis and Command: A History of Executive Power from George Washington to George W. Bush (9 page)

Some have argued that if a President believes a law is unconstitutional, he has no choice but to veto it, and if his veto is overridden, he has no choice but to carry out the law faithfully.
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They cite the Constitution's Take Care Clause as support. Textually, however, this argument ignores the fact that the Constitution is the highest law of the land. The obligation to faithfully execute the laws requires the President to obey the Constitution first above any statute to the contrary -- as the Supreme Court recognized in
Marbury v. Madison
, judicial review flows from the principle that a court cannot enforce a law that conflicts with the Constitution itself.
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To require the President to carry out unconstitutional laws would defeat the larger purpose behind the veto. James Wilson, for one, anticipated that Congress might seek to grab executive power: "[T]he legislature may be restrained and kept within its prescribed bounds by the interposition of the judicial department. In the same manner the President of the United States could shield himself and refuse to carry into effect an act that violates the Constitution."
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As Akhil Amar has written, "In America, the bedrock principle was not legislative supremacy but popular sovereignty. The higher law of the Constitution might sometimes allow, and in very clear cases of congressional usurpation might even oblige a president to stand firm against a congressional statute in order to defend the Constitution itself."
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The veto power and the refusal to enforce unconstitutional laws are aspects of executive control over law enforcement. Another is the inherent discretion to prosecute some laws more vigorously than others, which is a less confrontational, but equally significant, aspect of the executive's discretion to allocate limited government resources in accordance with its policy preferences. Presidents may decide to devote few investigatory resources to enforce laws with which they disagree, while transferring more to priorities on their agenda. The pardon power enhances this discretion. A pardon is not subject to review by any other branch; President Jefferson used the pardon to free persons convicted of violating criminal laws that he regarded as unconstitutional. The pardon power was reinstated after several state constitutions had removed it from the executive during the revolutionary period. However, as Hamilton predicted and President Gerald Ford's pardon of President Nixon proved, the main check on abuse is public opinion.
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At the time of the Constitution's framing, executive power was understood to include the war, treaty, and other general foreign affairs powers. Under the British constitution, the Crown exercised the powers over war and peace, negotiation and communication with foreign nations, and control of the military. Parliament retained exclusive control over the purse, domestic regulation, and raising the army and navy. When the colonies declared their independence, these powers were assumed by the national government under the Articles of Confederation -- while the Continental Congress served as the country's executive, it lacked any true legislative powers. Thus, when the Framers ratified the Constitution, they would have understood that Article II, Section 1 continued the Anglo-American constitutional tradition of locating the foreign affairs power generally in the executive branch.
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Hamilton and the other Federalists did not look to the executive to manage war and peace for tradition's sake. They understood the executive to be functionally best matched in speed, unity, and decisiveness to the unpredictable high-stakes nature of foreign affairs. As Thomas Schelling has written, a nation-state would want "to have a communications system in good order, to have complete information, or to be in full command of one's own actions or of one's own assets."
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Rational action on behalf of the nation in a dangerous world would be best advanced by executive action. Edward Corwin observed that the executive's advantages in foreign affairs include "the unity of office, its capacity for secrecy and dispatch, and its superior sources of information, to which should be added the fact that it is always on hand and ready for action, whereas the houses of Congress are in adjournment much of the time."
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The Framers intuitively understood the concept. State refusal to support the Continental Army had frustrated Washington throughout the Revolution. Congress had suffered from grave collective action problems, which eventually forced it to form executive committees. After independence, American leaders worried that they would lose in the peace what they had won in the war. The young nation was hemmed in by the great powers: Spain, France, and Great Britain. States were engaged in trade wars. Foreign nations exploited divisions between the states, which split along sectional lines over foreign policy. The Continental Congress had negligible armed forces at its command (barely 1,000 soldiers on the borders and no seafaring navy), while the state militias had proven to be undistinguished fighters. With America's position in the world precarious, concern about foreign relations was as important as domestic issues in the Framers' thinking.
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Threats to the national security led to greater centralization of foreign affairs power in the executive. Article II gave the President the roles of Commander-in-Chief and Chief Executive. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand," Hamilton wrote in
Federalist 74
. "The direction of war implies the direction of the common strength," he continued, "and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority." It was for this reason, Hamilton argued, that the Constitution vested executive authority in one person, rather than the multimember executives of the Continental Congress and the states.
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The executive's control, however, was incomplete. Making treaties would remain executive in nature -- the power remained in Article II -- but because of their status as supreme federal law would require Senate consent. While the President would control military operations and diplomatic relations, he would not have the power to raise the military, issue the rules for its governance, nor enact any legislation with domestic effect. Appropriations for the military could only run two years, giving Congress a regular opportunity to review the executive's foreign policies.

Not wishing to make themselves easy political targets, Federalists downplayed comparisons of the President's powers with those of the British Crown. They emphasized the Presidency's fixed term, its obedience to the Constitution and the laws, and its lack of independent funds. Hamilton observed that the British King was a permanent, hereditary monarch, with an absolute veto and the right to raise armies and navies and declare war. By contrast, he argued in
Federalist 69
, the President is Commander-in-Chief, in which his authority was nominally the same as the King's, "but in substance much inferior to it," because the President could not declare war or create the military. Hamilton's rhetoric got the better of him here, as even in Britain by this time, Parliament exercised the power to raise armies. The only real difference between the King's and the President's military powers was Congress's power to declare war. Tellingly, Hamilton did not define the meaning of "declare."

Federalists ultimately referred to British history to explain the checks on executive power. In the Virginia ratifying convention, the Anti-Federalists were led by the fiery oratory of former governor Patrick Henry, still famous for his "Give me liberty or give me death" speech. Henry claimed that the Constitution "squints toward monarchy" because the "President may easily become a King." "If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute!" Henry exclaimed. At the head of an army, the President "can prescribe the terms on which he shall reign master" and will violate the laws and "beat down every opposition."
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The Senate and the President might conspire to vote the executive a permanent military with which to impose an "absolute despotism," or the President might simply declare himself king.

Federalists countered that a President could never succeed in establishing a military dictatorship, because the other branches could stop him using their own constitutional powers. This marked a significant turning point in the theory of executive power. Federalists did not respond with the traditional checks-and-balances approach of mixed government. Unlike the Anti-Federalists, the Federalists did not believe that an aristocracy existed or was likely to rise, or that the President would represent a particular social class. Instead, they defended the Constitution by arguing that the separation of powers would rely on functionally defined branches of government -- executive, legislative, and judicial -- checking each other.
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In response to Henry, Federalists pointed to Parliament's funding powers as a check on war. Madison agreed with Henry that "the sword and the purse are not to be given to the same member," but he disagreed that the American government combined the two. "The sword is in the hands of the British King; the purse in the hands of the Parliament. It is so in America, as far as any analogy can exist."
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Federalist George Nicholas argued that Congress's sole control over establishing and funding the military "will be a powerful check here."
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Both Nicholas and Madison drew upon the examples of political conflict from British history to support the idea that government functions, rather than social class, would provide balance to the government.

Although it would have been to their advantage, the Federalists did not argue that Congress's power to declare war -- or judicial review -- would check the President. Instead, the ratification debates show that they expected each branch to exercise its unique powers to block unconstitutional or mistaken decisions. In another area of foreign affairs, for example, Federalists argued that Congress could contain the executive's treaty power (already conditioned by the Senate's advice-and-consent role) by refusing to enact laws or appropriate funds needed to bring the United States into compliance.
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The Constitution created a division of labor in which the President, Congress, and the courts cooperate, but also compete, to promote the national interest. After the Revolution, the weakening of the executive branch and the dominance of the state assemblies had thrown that healthy competition out of joint. For the system to succeed, the Presidency had to have the independence and powers to allow it both to stand up to Congress and to properly pursue its own functions, which included the powers over foreign affairs, administration of the laws, and the protection of the national security.

CONCLUSIONS

IN RATIFYING THE CONSTITUTION, the people rejected the radical innovations of the Revolution. Defenders of that status quo, who had promoted a republican faith in the legislature's purity in transmitting popular wishes, had lost. Gone were the multiple executives, advisory councils, and legislative selection of the governor. Yet, Federalists did not advocate a return to the past. The Presidency was not founded on divine right. The Constitution created a republican executive to be elected by the nation as a whole, with a connection to the people independent of Congress. The possibility of reelection would keep the President mindful of the approval of the electorate, but with a different time horizon than the two-year members of the House and the six-year Senators. The executive would be a truly coordinate and independent branch of the government.

The new Constitution rehabilitated the executive both structurally and substantively. Through the ratifying conventions, the people rejected the revolutionary view of executives as largely controlled by the legislature. By the end of the ratification, the Federalists had succeeded in enacting a constitutional plan that restored the executive's core powers while making it directly responsible to the people as a whole. They had republicanized the executive, or in Harvey Mansfield's words, they had "tamed the Prince." It would be the job of future Presidents to realize the Framers' vision of an energetic and empowered executive, but one constrained by a Constitution and the political system that would grow from it.

CHAPTER 3
George Washington

ASINGULAR FACTOR influenced the ratification of the Constitution's article on the Presidency: all understood that George Washington would be elected the first President. It is impossible to understate the standing of the "Father of the Country" among his fellow Americans. He had established America's fundamental constitutional principle -- civilian control of the military -- before there was even a Constitution. Throughout his command of the Continental Army, General Washington scrupulously observed civilian orders and restrained himself when a Congress on the run granted him dictatorial powers. He had even put down, by his mere presence, a potential coup d'etat by his officers in 1783.
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Washington cannot be quantified as an element of constitutional law, but he was probably more important than any other factor.