The Accountable Presidency

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

By John Yoo

(Kaplan, 544 pp., $29.95)

Bomb Power: The Modern Presidency and the National Security State

By Garry Wills

(Penguin, 288 pp., $27.95)

I.

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

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

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

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

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

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

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

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