Reflection on Book- Executive Power: Crisis and Command by John Yoo

Widely recognized and respected legal scholar, John Yoo of Berkeley Law published a book assessing the history of presidential executive powers in times of crisis. There are many insightful parts of this book reflecting on this rich history. I highly recommend this book. There are several strong points in this book, but I will reflect on a few from the following presidents he discussed: George Washington, Thomas Jefferson, Andrew Jackson, Abraham Lincoln and FDR.

These presidencies tested the bounds of executive power in the legal realm in various ways to address the needs of the nation.

George Washington

Professor Yoo provides an in-depth discussion of executive authority of our greatest and most important president, George Washington. Washington had the herculean task of keeping the young nation together in its infancy. He took careful attention to the institutional independence of the various branches of government and established the presidency as having a strong footing within the sphere of influence outlined in the Constitution. These foundational first steps would set the foundation of the presidency that would later evolve into the modern understanding of its role.

Washington provided the foundational principle for the president to take the lead in foreign affairs and military direction in addition to following through on domestic enforcement of federal laws. On some occasions this even meant overruling state governors and demanding a federal militia to put down attempted insurrections and rebellions occurring in various states. Washington flexed the supremacy of the new government. The Whiskey Rebellion was a good example of this enforcement.

During his presidency, Washington also recognized the threat that British allied Indian tribes posed to the states and their borders. He took executive action to defend the young nation in the Indian Wars. He also was committed to neutrality in the French Revolution and conflicts occurring in Europe. This position considered the best interests of the nation. The cabinet was divided on the issue, but he was dedicated to the position and ensured it was enforced. This would save the United States from various international problems during its critical foundational period.

Thomas Jefferson

Thomas Jefferson’s ambitious use of executive authority helped in the expansion of the United States. His pre-presidential views of a weaker exercise of executive authority did not carry through to his presidency. He reconciled this view as emphasizing that the office represented the views of the majority of the people. It gave him the mandate for his presidential endeavors.

In what could be seen as a precursor to the middle of next century when FDR pushed for court packing and removal of judges that disagreed with his philosophy, Jefferson saw an adversary in the judiciary that still maintained remnants of the Federalist Party. With the aid of Congress, he began to cancel the Federalist appointments made in 1801 and pushed impeachment for other judges in opposition to his philosophy such as Justice Samuel Chase.

In the realm of foreign policy, a major point in his presidency was the conflict with the Barbary pirates. Prior to his administration, the prior presidencies allowed for tribute to be paid to them in order to guarantee the safe passage of American ships. Jefferson sought to end this practice and dispatched a navy squadron to attack them. He did not rely on express Congressional authority. The Tripoli pirates had declared a state of war upon navy arrival and the navy was responding.

Jefferson also believed that using the navy was valid simply because the navy was created by Congress. Congress would later support Jefferson’s decision to take action.

Another major highlight of the Jefferson presidency was the Louisiana Purchase. It doubled the size of the United States and gave it permanent control of the Mississippi and New Orleans and cost $15 million dollars. Jefferson had previously believed that the Constitution did not allow for the express acquirement of territory or incorporation of new states. Jefferson reconciled this earlier view with the new belief that the U.S. had an inherent right to acquire new territory that extended beyond the powers provided in the Constitution. For additional support, however, he argued that it could be broadly allowed under the treaty power in the Constitution. Professor Yoo highlights more of the great debate that took place within the cabinet and with Congress to ratify, but there is no question that this broad view of executive power worked to the benefit of the nation. Jefferson’s presidency introduced the presidential office as independent executive and Jefferson did not shy away from making decisions he thought was in best interest of nation, yet eventually was able to rally support from the legislative branch. 

Andrew Jackson 

Andrew Jackson’s presidency reflected a new frontier for presidential authority, he assumed the role of an energetic executive with a strong populist sentiment. While Jefferson acted independently and would then garner support from Congress, Jackson was not afraid to bring a combative approach to Congressional relations if it meant his will or what he deemed the will of the majority that elected him was to be reflected. This could stem from his roots as a war hero and aggressive general and soldier dating back to the Revolutionary War.

One example that Professor Yoo highlights is Andrew Jackson’s efforts to remove the national bank. He believed it to be an example of a long-entrenched federal bureaucracy that did not take into account the needs of the common people, but rather the financial elites. The rampant corruption practices in the note speculation and other areas soured the concept to the majority of the nation. Furthermore, other areas of government had the capability of carrying out its roles such as Congress in coining money production. His veto of the bank showed an independent view of the executive branch and provided leverage in legislative dealings. He vetoed more bills than all the presidents before him combined. With regards to the bank, he transferred its federal funds to state banks, thus drawing the ire of members of Congress. The Congress later voted to censure him.

Jackson also was a firm believer in embracing his, role as chief executive, in allowing for the power of appointing, overseeing and controlling those who execute the laws. In some situations, removal of subordinates was necessary if they failed to adequately perform their given tasks.

Another key area Professor Yoo highlighted was Jackson’s approach to the displacement of Indians and foreign policy. As a general, prior to the presidency, Jackson had often quarreled with the Indians. As president, Jackson had as one of his main goals, American expansionism. In order to accomplish this goal, he saw the Indians as an obstacle that needed to be removed. He wanted more American settlement in the new frontier and did not believe the Indians could co-exist with them during this initiative. Jackson pushed for the law in Georgia to reject Cherokee claims for sovereignty and subjected them to state laws. The Supreme Court, in Worcester v. Georgia, however struck down Georgia’s laws because it believed that Indian nations had always been considered distinct political communities, retaining original natural rights. Jackson and Georgia, however refused to enforce the decision and later Congress entered a treaty with the Cherokee for their land there in exchange for land in Oklahoma. The Cherokee began “The Trail of Tears” without aid from the federal government after Jackson left office. Many died on this journey to the west after being forced from their land.

Overall, Jackson’s legacy was very populist- he governed with the firm understanding that he had a mandate from the people who elected him. He sought to root out corruption and bring a new energy to the role of the executive. He prioritized American interests sometimes to the detriment of others such as the Indian communities, but he was a very strong leader and was one of our better presidents in the power and respect he commanded for the position.

Abraham Lincoln

Abraham Lincoln’s presidency occurred during a turning point in American history. Civil War ravaged the nation and Lincoln had a duty to keep the nation intact. He tested the bounds of executive authority and challenged the judicial and legislative branches at various points during his presidency. Here are just a few examples Professor Yoo provides in his work.

Lincoln clashed with the Supreme Court especially on the issue of slavery. After the Dred Scott decision which affirmed slavery as a property right, Lincoln noted the decision should be kept to the facts of this case, no further. He believed the President and Congress should not be bound by it. During the war, Lincoln enforced several controversial policies that were necessary to maintain the Union and defeat the Confederate forces. A major decision was suspending the writ of habeus corpus and instituting military trials. This prevented Confederate reconnaissance forces and spies from having access to the civilian courts. In Ex Parte Merryman, however, Chief Justice Roger Taney, who also had authored Dred Scott, found this executive action of Lincoln to be unconstitutional. He strictly emphasized Article I of the Constitution that defined Congress as the mechanism to suspend it. Lincoln supported his unilateral action because of the rebellion nature of the war and the national crisis it presented. In 1863, Congress approved the suspension of the writ.

The Emancipation Proclamation was one of the defining moments in Lincoln’s presidency. It energized the nation and dealt a major blow to the Confederacy’s war effort. Newly freed saves would also be encouraged to join the Union forces in response. Lincoln supported the premise for the emancipation as within his powers as Commander-In-Chief to suppress to rebellion and work toward unification.

Lincoln is also known to have clashed with Congress with his plans for reconstruction. He pushed for an easier path for the Confederate states to rejoin the Union compared to the view of a majority in Congress. Congress wanted higher burdens and it would have allowed for greater federal involvement in state reconstruction. Professor Yoo elaborates on this debate between Lincoln’s view of streamlining the process with executive power and military governments to guide the process vs. the lead of the Congress with the Wade-Davis bill.

Overall, Lincoln’s presidency can be categorized as one that was determined to save and preserve the Union at all costs. His strong leadership got us through one of the most difficult if  not the greatest challenge our nation has ever encountered. It also challenged the boundaries of the Constitution but eventually led to a series of amendments that would shape the American culture and society to the present day.

FDR 

The presidency of FDR ushered in an unprecedented growth of government. FDR relied on the background of a nation emerging from the Great Depression and entering WWII.

To address the Great Depression, FDR promoted legislation for the emergence of the administrative state, much of which remains with us today. The legislation was consistently in conflict with the Supreme Court and the 4 Horseman conservative jurists on the bench. As more and more legislation was threatened at the Supreme Court, FDR pushed for court packing which drew the ire of both sides of the political spectrum. After FDR applied pressure during this phase coupled with the retirement of the conservative jurists, the Supreme Court ultimately began to find much of the legislation Constitutional. Professor Yoo notes that much of the New Deal legislation likely prolonged the Great Depression and it was the emergence of WWII that brought economic stability back to the United States. The Great Depression highlighted a notable conflict between FDR and the judiciary. In the present context, with the new composition of the Supreme Court, there has been much commentary on how the Supreme Court will likely be addressing issues relating to reducing the power of the administrative state in upcoming Supreme Court terms.

For entering WWII, FDR embraced his role as executive when taking the forefront on matters of foreign policy. Working with Congress on some of the sensitive decision-making was not prioritized. The decisions made by FDR tackled the challenge that the looming war brought and FDR took a proactive rather than reactive approach. Pre-war this was most evident in the arms and war products dealing with the Allied powers. FDR largely avoided publicizing these dealings, but continued to increase directing them when the Allies started to lose ground in the war to the Axis powers. A short-time before Pearl Harbor, FDR also had taken a stronger stance on dealings with Japan from an economic and trading perspective. This may have led to the prompting of Japan to plan the attack that would ultimately lead the United States to officially enter the war. It should also be noted, however, that his internment policy of Japanese U.S. citizens was eventually upheld by the Supreme Court in Korematsu.

Overall, when viewing the legacy of FDR, Professor Yoo narrows in on his executive battles with the judiciary during his earlier terms in office with the New Deal programs. He also notes that during the war time period, FDR resorted to more traditional executive enforcement when dealing with foreign powers and war. This may have brought a contentious relationship with Congress, however, when the war effort started it required energetic leadership to take initiative. Although FDR would not live to see the end of the war, the infrastructure of the executive role he had put in place contributed to a successful outcome.

I would highly recommend Professor Yoo’s book as a primer on the history and legal issues surrounding the evolution of the presidents’ strong executive power especially in times of crisis and major tuning points in our nation’s history. There is much commentary today about the extent of the President’s power in how to address the border crisis. This historical perspective presents an inside scope of how the issue of national security was handled in prior administrations and the clashes it drew from other branches of government.

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