The Unfettered Presidency: A Review of the Constitutionality of Executive Prerogative

GENEVIEVE AGUILAR The Colorado College In his most recent book, Crisis and Command: A History of Executive Power from George Washington to George W. Bush, John Yoo argues the constitutionality of executive prerogative. To examine the veracity of this claim, this paper explores the Framers conception of the executive as well as precedents set by early presidents. There is no textual authority in the Constitution to support the claim that presidents can unilaterally initiate hostilities because the war power is exclusively granted to Congress. Furthermore, the Framers preference for collective judgment is a core tenet of their republican ideology, protecting the people from the abuse of power, misguided policies, irrational behavior, and unaccountable action. This understanding is evident through the Founders statements, early judicial decisions, and early presidential practice. Washington and Jeffersons actions never disrupted the separation of powers; while they vigorously exercised their power, they never claimed exclusive authority of foreign affairs. Yoo is unable to justify recent presidents questionable actions under the guise of constitutional authority, the Framers intensions, or precedent set by the early presidents.

INTRODUCTION [I wonder] 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. --National Review, May 1974 The Separation of Powers serves as a central element to the U.S. governments functionality. The Founding Fathers understood that this conflict, embedded in the constitution, guaranteed American freedoms. However, in the age of the Modern Presidency and the emergency state, federal power has concentrated in the executive branch. Fears heightened during the September 11 attacks and the Iraq War, leading many to question the constitutionality of presidential prerogative, especially with concern to the deployment of forces.

In an interview with Chris Wallace in December 2008, Vice President Cheney justified the Bush administrations actions concerning the warrantless surveillance of American citizens, indefinite detention of suspects without habeas corpus or legal representation, kidnappings by extraordinary rendition, and a robust interrogation program by saying: The President of the United States 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. He could launch a kind of devastating attack the world has never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in (Fox News). While scholars have questioned the conception of presidential power intrinsic in Cheneys statement for over half a century, there has been a resurgence in this type of literature over the last few months with several authors writing books that justify or condemn the broad, secret presidential prerogative exercised of late. The most interesting of these recent examinations is John Yoos Crisis and Command: A History of Executive Power from George Washington to George W. Bush. As a high-ranking official for the U.S. Department of Justice, Yoo took part in drafting the infamous Torture Memo, authorizing extremely harsh interrogation practices, as long as they did not cause organ failure, impair bodily function, or death, for suspected terrorists (Streichler 2008, 1). He has long been a proponent of unrestrained, unitary executive power, and Crisis and Command is no exception. The purpose of this paper is to test Yoos view of a necessary and constitutional executive prerogative. In order to make his argument, Yoo relies on both the intentions of the framers and historical precedents regarding the use of presidential power, and neither line of reasoning is persuasive. FLIP-FLOPPING OF LIBERALS AND CONSERVATIVES In recent times, liberals have been the ones wary of an out-of-control and expanding executive power, while conservatives have rejoiced in a strong, decisive presidency. However, this characterization of views has not always been the case. From the Progressive Era through the middle of the Vietnam War, liberals argued for a strong national-security presidency, whereas conservatives were suspicious of centralizing sweeping powers in a unitary executive (Goldsmith 2010, 33). Prior to the Progressive Era, liberals were distrustful of the traditional system of checks and balances. In 1885, Woodrow Wilson argued that there had been a vast alteration in the conditions of government and that the Constitutions checks and balances were no longer effective. Initially, he proposed the president to

be, in essence, a prime minister, heading the executive branch and the majority party in Congress. Years later in 1907, Wilson changed his tune, advocating for a more robust presidency. He proposed the concept of a living Constitution: the underlying understandings of a constitutional system are modified from age to age by changes of life and circumstance and corresponding alterations of opinion (cited in Goldsmith 2010, 33) Since the president was the only nationally elected official, it was natural for power to concentrate in the executive branch. According to Wilson, the President is at liberty, both in law and conscience, to be as big a man as he can (Ibid 33). Wilsons ideological shift was emblematic of liberals changing conception of executive power. The principles of formal concentration of executive power and unilateral presidential action guided progressive thinking from Theodore Roosevelt to Lyndon Johnson. The president was not only supreme in domestic affairs, but also in foreign and military matters. It had long been argued that the president held the initiative in foreign affairs, and liberal thinkers embraced this idea (Ibid 33). They supported the broad powers that Franklin D. Roosevelt exercised leading up to and during World War II. Liberals approval continued into the Cold War when executive power grew even further. For the first time, the United States had a large, standing military in peacetime. Unlike in previous wars, the military did not demobilize. On the contrary, in 1947, the government established new institutions, including the Department of Defense, the Joint Chiefs of Staff, and the National Security Council to manage this military bureaucracy (Yoo 2009, 367). President Truman quickly exercised the unprecedented authority that these institutions concentrated in the executive branch. After North Korean forces crossed the 38th parallel, Truman immediately ordered the U.S. military into action before seeking legislative approval (Ibid 336), and the White House briefed congressional leaders only after the fact. Initially, only conservative Senator Robert Taft publicly protested that the presidents actions disenfranchised Congress to declare war (Ibid). Taft was heavily criticized for questioning executive authority. Liberal intellectuals, including, Arthur Schlesinger, Jr. and Henry Steele Commager, jumped to Trumans defense by openly attacking Taft (Wills 2010, 107). This liberal view persisted long after Truman and throughout much of the Cold War. Liberals praised Eisenhower for his sweeping invocation of executive privilege in 1954, effectively shielding government officials from Joseph McCarthys committee investigations (Goldsmith 2010, 34). Likewise, liberals did not raise constitutional objections to President Kennedys dealings with Cuba, including the Bay of Pigs operation in 1961 or the naval quarantine in 1962 (Ibid 34). With regard to President Johnson, Congress nearly unanimously approved the Gulf of Tonkin Resolution, giving the president approval and support for all necessary steps, including the use of armed force for the conflict in Southeast Asia (The New York Times 1964, 18). However, the deterioration of American standing in Vietnam and the Watergate scandal began to erode liberal confidence in a strong, unrestrained executive. Intellectuals that once vehemently defended executive prerogative,

notably Schlesinger, became fervent critics of the imperial establishment. Schlesinger admits that Taft had a much more substantial point than he had supposed twenty years prior (Schlesinger 1973, 286). In response to Nixons tenure, Congress enacted the War Powers Resolution of 1973 to check unilateral executive militarism, as well as the Intelligence Oversight Act, the National Emergencies Act, Freedom of Information Act, the Foreign Intelligence Surveillance Act, the Presidential Records Act, the Inspector General Act, and a host of other legislation aimed to reduce presidential power through increased congressional oversight (Yoo 2010, 373-374). Liberal scholars no longer supported a strong, unrestrained executive. Conservatives conception of the presidency followed a different path. Conservative pundits were wary of presidential power for the first half of the twentieth century. They rejected the notion of a living Constitution, opting for a strict reading of the document that constrained executive prerogative. The New Deal, which they considered undesirable, created an enormous federal bureaucracy and centralized sweeping powers in the presidency (Ibid 418). While most conservatives supported the Korean War and the policy of containment, they criticized Trumans deployment of troops without Congressional authorization (Goldsmith 2010, 34). Skepticism of growing presidential power continued into the Nixon administration when Watergate caused everyone to question a powerful executive. Conservatives attitudes towards the presidency drastically shifted when Ronald Reagan was elected president. Reagan ordered a large military buildup while simultaneously assuaging fears of a garrison state. Reagan-conservatives, like their predecessors, rejected the living Constitution, instead using constitutional grounds to bolster an unprecedentedly vigorous presidency. They rooted their arguments in a broad reading of Executive Power and independent authority of the president to interpret the laws as established in the Take Care Clause. They insisted that the Commander in Chief had substantive power over military affairs. Bill Clintons ascension to power once again created partisan and ideological realignments around the issue of executive power, and many partisan conflicts and inter-branch confrontations erupted during his tenure. For example, U.S. policy toward Russia and the former Yugoslavia, NAFTA, the administrations intervention in Somalia and Haiti, and U.S.-Japan trade relations all sparked partisan controversy. The 1994 congressional election, which resulted in a Democratic president confronting a Republican-controlled Congress for the first time since the early 1950s, produced divides within both parties, with some Republicans expressing a new-found interest for strict congressional oversight and some Democrats awakening to the merits of presidential unilateralism (Adler and George 1996, 58). There is much cynicism regarding attitudes of liberals and conservatives towards the presidency because attitudes are dependent upon which party is currently in office and likely to hold office in the near future. While some of this

cynicism is warranted, it demonstrates the need to examine the constitutionality of presidential prerogative by dissecting the arguments from an objective point of view. At various points, both liberals and conservatives have justified the actions of strong, energetic presidents. However, their conceptions of executive power are quite different at a fundamental level. Liberals advance the idea of a living Constitution as proposed by Wilson. Conservatives reject this notion, relying on stretching the Constitution to allow for virtually any presidential action. These arguments are rooted in the conception of the Constitution, so it is necessary to first examine the Constitution and the Framers intentions closely. THE FRAMERS INTENTIONS Yoo roots his argument in the Framers intentions. While, the Framers were a diverse group of men with complex views on the separation of powers, their intentions about collective judgment were clear. It took a while for the Framers to reach consensus on a vision for the president. On one end of the spectrum was Alexander Hamilton, who took his inspiration of executive authority from the British monarchy. On the other end of the spectrum were those that sought to make the executive branch subordinate to the legislative branch. They proposed a multimember executive council where Congress would elect the president, shorter terms, and term limits (Sevi 2008, 4). Ultimately, however, the Framers settled somewhere in the middle with a unitary executive that could act decisively and deploy force quickly if necessary, actions for which the Articles of Confederation did not allow (Ibid 7). Yoo examines the differences between Article I and Article II to support the Founders desire to create a strong executive. Article I clearly enumerates Congresss powers. In contrast, Article II broadly vests the Executive Power in the president. Yoo exploits this discrepancy to infer that the Constitution favors the executives role. Furthermore, the Framers located the shared treaty power in Article II, where presidential powers are located, rather than among Congresss powers in Article I. According to Yoo, the Framers used these slight composition choices to create a strong executive. While Yoo claims that the subtle construction of the Constitution makes the president supreme in foreign affairs, the Framers preference for collective decision-making is apparent in the clauses that govern the conduct of foreign policy. Among Congress enumerated powers in Article I is the broad and exclusive power to regulate foreign commerce and initiate all hostilities, including war, on behalf of the United States. Although the treaty power is located in Article II, the provision indicates that the president shares this power as well as the power to appoint ambassadors with the Senate. The Constitution only assigns two powers in foreign relations exclusively to the president. He is Commander in Chief, but he acts in this capacity by and under the authority of Congress (Adler and George 1996, 21). In this role the president is merely first admiral or general of the armed forces (Hamilton et al. 1992, 349-350), after hostilities have been authorized by

Congress or in the event of a sudden attack against the United States. The other exclusive power the president has is the power to receive ambassadors. Alexander Hamilton, James Madison, and Thomas Jefferson all argued that this was a clerklike function and purely ceremonial (Ibid 352 and Adler and George 1996, 21). While the function can entail recognition of states which carries certain legal implications, all three Founders contended that the duty of recognizing states was much more conveniently vested in the president than in Congress. These aforementioned duties exhaust the textual grant of authority to the executive with respect to foreign affairs. The president has much less constitutional authority than Congress. The Framers strongly articulated their preference for shared decisionmaking through the construction of the treaty power: He shall have Power, by and with the Advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur. There is little doubt as to this provisions meaning. The constitutional blueprint designs a partnership between the legislative and executive branches for the purpose of conducting foreign policy, designating the legislative branch as the senior partner. In foreign affairs, the president has limited authority and is of secondary importance. Despite their public disagreement over Washingtons authority to declare neutrality in 1793, it is important to note that throughout their lives both Hamilton and Madison maintained that Congress, and Congress alone, could initiate hostilities (Adler and George 1996, 199). The president had the unilateral power only to defend the nation from invasions. At the Pennsylvania Convention, James Wilson articulated the values underlying the war clause: This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single body of menfor the important power of declaring war is vested in the legislature at large (Eliot 1859, 2:528). Hamilton reiterated the sentiment of shared decisionmaking when he assured the New York Ratifying Convention that they, the Senate, together with the President are to manage all our concerns with foreign nations (Ibid, 2:306). The Framers were unmistakably clear that the power to declare war resided in Congress and that the foreign affairs power was to be shared between the legislative and executive branches, No one at the Constitutional Convention, nor any member of any state ratifying convention, ever suggested differently. Yoo exploits a slight word change to support his argument to the contrary. In an earlier draft of the Constitution, the document vested the power to make war in the legislature. A few days later, the Convention held a minor debate over the wording of the clause, eventually settling on the version known today, stating that the legislature shall have the power to declare war (Wills 2010, 194). Yoo uses this alteration to argue that the Framers intended to weaken congressional warmaking powers. He asserts that in the eighteenth century, declare did not mean initiate or authorize, but rather publish. He relies solely on Samuel Johnsons eighteenth-century dictionary to stake this suspect claim (Yoo 2006, 145). An examination of Madisons notes of the debate shows that the Framers argued over using make versus declare because they disagreed over the ramifications of the change. Some Framers, such as Rufus King, were concerned that make war

might be construed to mean conduct war, which all agreed was an executive duty (Wills 2010, 195). Mr. Ellsworth objected to the amendment altering the language because he believed that it would expand the Executives role in initiating military activity and make it easier to start war (Sevi 2008, 9). Mr. Mason, on the other hand, favored the new language because he understood declare war to be less clear than the previous language, creating an ambiguity that would impede warmaking (Ibid 9). While the Founders did not share a single understanding of the language, it is clear, that they were in accordance to limit executive war-making ability. Garry Wills also takes issue with Yoos characterization of the language change, calling it a philological fantasy. As early as the sixteenth century, the Oxford Dictionary of the English Language had a separate entry for declare war meaning bellum judicare, or decree war (Wills 2010, 195). The Framers used declare to denote the stronger action. Declare appears in other parts of the Constitution where it clearly means define. For instance, Article II, Section 3 states, The Congress shall have power to declare the punishment of treason. Here, declare means more than publish; Congress is defining the punishment. Yoo completely misconstrues the Framers intentions to confuse the obvious meaning of declare war and justify extra-constitutional executive power. John Hart Ely suggests additional causes for the word change. One reason was to make clear that once Congress authorized hostilities, the president, as Commander in Chief, would assume exclusive tactical control of the use of force. The Commander in Chief provision was only meant to convey the command of the armed forces once hostilities began; the president did not carry the authority to initiate a war. Another reason for the change was to articulate that the president had the power, without advance congressional authorization, to repel sudden attacks (Ely 1993, 5). Yoo attempts to derive constitutional authority for his conception of an unrestrained president, but it simply does not exist. The Framers were clear about their preference for shared decision-making in foreign affairs and that the presidents actions were to be restrained by Congress. Furthermore, Yoos philological argument is suspect because it is intended to mislead those unfamiliar with eighteenth century language usage. Yoos arguments do not gain much authority from his incorporation of the Founders intentions because he downplays that they sought to place checks on a powerful presidency and he misconstrues what they thought the Constitution said about executive power. Along with Constitutional debates, early court decisions, which clearly articulate the meaning of the war clause, are indicative of the Framers intentions. No court since has contradicted the viewpoint laid out in these initial judicial decisions (Adler and George 1996, 22). In 1800, the court ruled that Congress alone can declare war, whether it be imperfect (limited) or perfect (general) (Bas v. Tingy). A year later, Chief Justice John Marshall, a member of the Virginia Ratifying Convention, held that the whole powers of war [are] by the Constitution of the United States, vested in Congress (Talbot v. Seeman 1801, 15). Marshall

again ruled on the issue of executive power when he ruled that President John Adams instructions to seize ships, conflicting with an act of Congress, were illegal (Little v. Barreme 1804). Another significant case was United States v. Smith in 1806. The court stated that the president cannot do what the law forbids. If [so], it would render the execution of the laws dependent on his will and pleasure; which is a doctrine that has not been set up.In this particular, the law is paramount (39). Furthermore, the president could not authorize a citizen to conduct a war against a nation with whom the United States are at peace.[The war] power is exclusively vested in Congress.It is the exclusive province of congress to change a state of peace into a state of war (Ibid 39-40). These judicial decisions reiterated the constitutional fact that decision-making in foreign affairs was to be shared, with Congress having the exclusive power to initiate hostilities. The Framers happily sacrificed unilateral executive authority for enhanced barriers on the use of force. Collective judgment was a core tenet of their republican ideology, protecting the people from the abuse of power, misguided policies, irrational behavior, and unaccountable action. The construction and text of the Constitution, as well as early judicial decisions, reflect this ideology. There can be no doubt as to the Framers intentions. The unitary executive could act decisively and deploy force quickly if necessary, while the legislature restrained its power. The Framers were aware that there was a tradeoff between quick action and checked power, but this was hardly a difficult choice for them to make. Yoo cannot justify the executive power known today in the Framers intentions. PRECEDENT AS A PRETEXT FOR USE OF FORCE The next major source of legitimacy that Yoo claims is the precedents of past presidents that vigorously exercised their powers. In Federalist Paper no. 37, Madison recognized the power of authoritative example. He wrote that the Constitutions provisions were considered more or less obscure and equivocal, until their meaning beascertained by a series of particular discussions and adjudications (Hamilton et al. 1992, 179). The manner in which presidents executed the responsibilities of their office would shape the role of the executive branch for all future presidents. Washington understood instinctively that his actions set the example for his successors (Yoo 2009, 96), and he accordingly exercised his executive power independently and energetically. Later presidents were also acutely aware that their actions would shape those of their successors. Truman believed that he could not ask for congressional approval for deploying troops to Korea because that would weaken the hand of future presidents (Wills 2010, 106). Yoo asserts that executive power has been steadily growing, thanks to the actions of early energetic presidents, such as Washington and Jefferson. While many scholars believe that nuclear power and the emergency state have created a Modern Presidency, Yoo argues that the robust executive known today dates all the way back to Washington.

One of the most controversial actions a president can take is to deploy force without seeking congressional approval. Even those unfamiliar with legal studies understand that Congress, not the president, holds the power to declare war. While Yoo proposes his own philological interpretation of the power to declare war, he relies predominately on precedent to justify the unilateral presidential use of force. However, when examining early presidents that were active contributors to drafting and ratifying the Constitution, such as Washington and Jefferson, there is little difference between these executives conception of their power and that of the Framers. Yoo maintains that our earliest presidents, including Washington and Jefferson, broadly interpreted their power as Commander in Chief and provided precedents for todays strong executive. However, the early presidents subscribed to a traditional interpretation of the Constitution, where the president shared the foreign affairs power with Congress. Occasionally, some perceived the Constitution to be an unacceptable constraint and acted extra-constitutionally, but they never challenged the Constitution itself. They defended their actions not under a loose, alternative reading of the Constitution, but as a temporary exception under specific conditions that required it. After 1950, Yoo is correct to assert precedent for executive prerogative. The temporary exceptions became the permanent rule, and Congress and the Supreme Court acquiesced to the emerging prerogative interpretation. However, this view of precedent as a pretext for force is problematic: That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date (Powell v. McCormack 1969, 35). The Constitution is not ambiguous about who has the war power. Thus, Usurpation isnt precedent, its usurpation. (Ely 1993, 10). While there may be a case after 1950, Gordon Silverstein points out that: Those who find precedents for the prerogative interpretation scattered among the activist presidents before the 1940s arent exactly right (1997, 44). The original constitutional understanding is consistently honored from the framing until 1950. Therefore, it is impossible to build the occasional nonconforming presidential actions of [the post World War II] period into an argument that they gradually altered the constitutional plan (Ely 1993, 10). The Whiskey Rebellion constituted the first major challenge to Washingtons new government. When serious opposition mounted to an excise tax on whiskey, Washington was confronted with a serious problem. By issuing a proclamation, he was able to initially control the insurrection. Three years later, however, armed resistance broke out, forcing Washington to threaten enforcement via coercive measures. The 1792 Militia Act required the president to seek judicial approval before calling out the militia. Complying with the law, Washington presented Associate Supreme Court Justice James Wilson with the documents outlining the facts of the rebellion. Justice Wilson ruled in Washingtons favor. Three days after Wilson received the required finding, Washington issued a final proclamation warning the use of force if the rebels did not return to their homes

(cited in Goldsmith 1974, 248). While ordering 12,500 troops from Maryland, New Jersey, Virginia and Pennsylvania, Washington simultaneously offered amnesty to anyone who swore to obey the laws. His strategy was remarkably successful. By the time the militia reached the area in September, nearly all of the rebels had scattered (Yoo 2009, 70). Yoo lauds Washington for his swift action. According to Yoo, Washington did not wait for federal judges to trigger the Militia Act, nor did Washington consult with Congress (Ibid 70). However, this characterization misconstrues the events. While Washington took initiative and approached Justice James, he waited for the necessary judicial finding before taking any military action. He also minimized the need for force by offering an escape clause for anyone willing to pledge allegiance to the government and abide by the law. It is true that Washington did not consult with Congress prior to putting down the rebellion. However, the Constitution allows the president to repel sudden attack, and insurrection definitely falls within this purview. Furthermore, Washington reported the successes of the operation to Congress which changed the Militia Act to abolish judicial approval (cited in Goldsmith 1974, 254-255). Now all that was required to call out the militia was presidential proclamation, allowing even swifter action in the future. Yoo overstates his characterization of Washingtons actions. Washington took control of military affairs, but stayed well within the understanding of his constitutional powers. Washington involved Congress and exercised executive restraint throughout his presidency. While it is true that Washington never involved the legislature in forming military strategy, he regularly sought congressional approval to expand the size and scope of the military. When it was apparent that the laws were overly restrictive, Washington used the proper channels to correct their shortcomings, instead of using his prerogative to act outside them. Washington never sought to exclude Congress from the process. The legislative branch recognized the Commander in Chiefs authority to conduct military affairs under his discretion, but held a de facto veto over any sustained use of force with its monopoly over funding. Along with Washington, Yoo praises Jefferson for his vigorous use of executive power to the great benefit to the nation. Jefferson, having a much more controversial tenure than Washington, exerted direct control over the entire executive branch, challenged the courts over the right to interpret the Constitution, and used the military to advance national interests abroad while keeping firm control over foreign policy (Yoo 2009, 137). He presided over the constitutionally suspect Louisiana Purchase, ordered American naval units to attack the forces of the Barbary States without consulting Congress, and ruthlessly defended the unpopular embargo designed to keep the United States out of war with Britain and France. While future presidents construed Jeffersons actions as precedent to exploit and upon which to build even more expansive interpretations of presidential power, Jefferson did not legitimate his actions by reinterpreting the Constitution (Silverstein 1997, 45). On the contrary, he acted with the explicit knowledge that his actions, although unavoidable, were at times extra-constitutional.

Jefferson originally planned to reduce the federal budget by cutting the size of the military to practically nothing, but this plan was no longer feasible when he employed the navy to confront the Barbary pirates. These bandits preyed upon the shipping of other nations, seized their cargos, and sold their sailors into slavery (Goldsmith 1974, 1: 369). Earlier presidents had paid tribute to allow American shipping to proceed freely. However, when Jeffersons assumption of power accompanied demands for higher payments and the seizure of a U.S. Navy frigate by the Dey of Algiers, he rethought this policy. Jefferson decided to send the Navy to put an end to the harassment of American shipping. The only relevant piece of legislation regarding the matter, enacted on the last day of Adams term, mandated that at least six ships, with a minimum of 192 guns, be kept in constant service (Ibid 373). Accordingly, Jefferson ordered his naval commanders to proceed to the Mediterranean and destroy any ship or vessel of any Barbary state that had declared war on the United States. When Commodore Richard Dale arrived and discovered that the Bashaw of Tripoli had declared war, he issued orders to attack any and all Tripolitan vessels. In August 1801, the U.S. Enterprise, a 12-gun schooner, encountered a 14-gun Tripolitan corsair on a resupply mission to Malta (Yoo 2009, 113). The Enterprise devastated the corsair, killing half of the Tripolitan crew, cutting down its masts, throwing its guns overboard, and setting it adrift. Four months later, Jefferson went to Congress to explain what had transpired and to seek approval for offensive military operations. He announced that the squadron had been ordered only to use force if first attack and was scrupulous in respecting the authority of Congress to commit the country to war (Pusey 69, 53). Jefferson often distinguished between defensive and offensive military operations, believing the former to be permitted and the later to be prohibited (Adler and George 1996, 316). Accordingly, he restrained all military action to that which was merely defensive. However, he still went to Congress for additional authority by calling for legislation that would authorize the president to order offensive as well as defensive military action in similar future situations. Congress obliged, delegating broad powers to Jefferson to take any necessary military measures for the duration of the war. Yoo lauds Jeffersons choice to unilaterally employ the Navy against the Barbary pirates. However, the Barbary wars constitute a precedent for prerogative interpretation of the Constitution only if one ignores Jeffersons rhetoric and understanding of his actions. Jefferson acknowledged that he acted beyond the Constitution and went to Congress for permission after the fact. He never made any executive-prerogative claims because he knew that only Congress, and not a creative reading of the Constitution, could provide him with the power he sought. Another landmark of extraordinary power, Jeffersons Louisiana Purchase would be construed as precedent for broad executive power in the future along with the Barbary wars. Jefferson believed that American prosperity depended on expansion and relations with the countrys European trading partners. When he was suddenly

presented with the opportunity to double the size of the nation while avoiding war with Spain, Jefferson was willing to act outside what he thought the Constitution permitted. Originally, Jefferson believed that the purchase required a constitutional amendment. However, a month later, he changed his mind because he worried that the delicacy of the negotiations might have fallen apart if there were a constitutional debate over the issue. The treaty needed to pass with as little discussion as possible: It would be prudent to say nothing on that subject, but to do sub-silentio what shall be found necessary (cited in Silverstein 1997, 46). The new territory was incorporated to the country as a matter of expediency and less of constitutional principle. Jeffersons advisors used loose readings of the Constitution to make the purchase seem legal (Yoo 2009, 119), but it was precisely this sort of broad interpretation that most concerned Jefferson (Silverstein 1997, 47). Jefferson was well aware that his actions would set precedent for future presidents: Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction (cited in Ibid, 47). Jefferson rejected stretching or manipulating the Constitution to justify his actions. He was not arguing for a weak executive, but rather for the correction of constitutional shortcomings through the proper channels; it was insufficient to simply interpret the documents flaws or inadequacies away. While the Louisiana Purchase established important precedent for future actions, it did not provide a precedent for the assertion of prerogative power, as Yoo argues. Congress confirmed the envoys that engaged in negotiations, appropriated funding, and ratified the treaty (Schlesinger 1973, 24). The economic embargo was the third major constitutional confrontation during Jeffersons tenure. While Jefferson exercised enormous power to enforce the law, he never argued that his actions were within the presidents exclusive authority. Furthermore, he had the full cooperation of Congress, who passed the laws. He was merely enforcing the laws as established by the legislature (Silverstein 1997, 47). Jefferson acted within his congressional and statutory authority. While Yoo tries to characterize Jefferson as an early example of exercising presidential prerogative, this is simply not the case. Jefferson never violated the separation of powers. If his actions are to be attacked as unconstitutional, they must be attacked on the grounds that the national government as a whole was acting outside its limits and did not have the authority to do as Jefferson directed. Furthermore, Jefferson never claimed exclusive authority over foreign affairs. Each time, he included Congress in his decision-making either post-facto in the Barbary incident, during as is the case with Louisiana, or before as with the Embargo. 1950, and arguably the 1940s, marked a distinct departure from the traditional interpretation of presidential power. In June 1950, when North Korea crossed the thirty-eighth parallel to invade South Korea, Truman sent American troops without asking Congress to declare war. Truman made the decision to go to war with North Korea within forty-eight hours, with no consultation from anyone outside the very top executive ranks (Wills 2010, 106). Unlike previous presidents,

Truman did not even seek congressional approval after the fact, intentionally sidestepping the constitutional process during the Korean War. When Senator Taft claimed that the Presidents actions were unconstitutional, the Truman administration used precedent to justify their authority. The State Department churned out a memorandum documenting eightyseven times in which Presidents had sent American forces into combat on their own initiative. Although Schlesinger agreed with Acheson and the State Department at the time, he later took a look at the list and discredited it: The precedents invoked by Acheson, the State Department, and [Senator Paul] Douglas were precedents for limited action to suppress pirates or to protect American citizens in conditions of local disorder. They were not precedents for sustained and major war against a sovereign nation (Schlesinger 1973, 133). Truman deliberately circumvented Congress and exceeded his authority as Commander in Chief. Although the infamous list that Acheson produced for Taft is widely used to justify unilateral executive militarism, it is bogus. It misconstrues the nature of the events and underplays the role that Congress and the American people played in the process. With Korea, Truman successfully disenfranchised both. While he lacked precedent for his actions, he left a putative precedent for future Presidents to follow. Post-Korea, there is certainly a case to make for a precedent of growing presidential war power. However, the original constitutional understanding is consistently honored from the framing until 1950. Yoo cannot impose the argument of precedent dating back to Washington and Jefferson to justify the actions of modern presidents. CONCLUSION Yoo spends nearly three-quarters of his book analyzing events prior to 1945. He believes that the behavior of past presidents, including Washington and Jefferson, justify the actions taken by modern presidents. Rooting his claims of executive supremacy in the design of the Constitution, Yoo greatly underplays that the Framers devised constitutional checks on the president precisely to limit executive power. Yoo unpersuasively attempts to defend current presidential actions through his philological web of misconstruals, erroneously vesting the executive with the authority to begin war. Washington and Jefferson were open with Congress and the public about their war aims, allowing the people to act as the ultimate check on their power. The Founders had an overwhelming desire to restrain executive power through collective judgment. An examination of the record establishes that neither the Commander in Chief clause nor the executive power provision provide sufficient support for the claim of presidential power to initiate hostilities. This responsibility was exclusively granted to Congress and was evident through the Founders statements, early judicial decisions, and early presidential practice.

Executive prerogative marked a radical departure from the Framers intentions. Presidents after the 1940s were suddenly eager to reinterpret the Constitution. Early presidents occasionally made exceptions to and stretched the Constitution when particular circumstances deemed necessary, but they never asserted the problematic, broad executive prerogative seen today. Now, the exception has become the rule, and it will not be easy to return to the traditional balance of powers. As outlined in Federalist no. 51, institutions were designed to compete with each other to reign in one anothers power (270). The growth of executive prerogative in foreign affairs may cause important implications in the domestic arena. While some may argue that the Modern Presidency requires more executive authority consistent with evolving circumstances, Yoo does not believe this characterization of affairs to be true. In his view, the robust executive known today dates all the way back to George Washington. Yoo cannot support his claims for an unfettered executive by invoking the Founders intentions or precedent set by early presidents. However, if Yoo truly believes that the executive should have more power to better handle the nations needs, then the American system should be restructured only through debate, discussion, and formal revision through a constitutional amendment, and not through a creative reading of the Constitution or the default of steady accumulation of power from one branch to the other. While executive prerogative may produce effective foreign policy, it cannot be considered successful because it fundamentally undermines the American political system. In 1792, Madison wrote, every word in a constitution decides a question between power and liberty (cited in Adler and George 1996, 214). The Constitutions core function is to delicately balance these conflicting yet interdependent goals. Successful foreign policy attempts to reduce the imbalance of powers in the federal government. However, a wide gulf between constitutional theory and governmental practice in the conduct of foreign policy has developed in the last sixty years. Successful foreign policy gives groups a stake in the outcome and limits potential mistakes, ultimately creating better policy and better government. By incorporating the American people, presidents can increase public awareness and understanding and forge a more robust democratic culture. This fact was not lost on early presidents, as they turned to the people as their ultimate check on power. Overall, little is gained politically or morally by removing the public from the process by broadly interpreting the Constitution to condone executive prerogative.

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