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

—Reviewed by Adam Fleisher

In Crisis and Command, John Yoo, known primarily for his controversial take on what is and isn’t torture, rebukes critics of the Bush administration’s alleged abuse of his office. Yoo argues that nothing Bush did in response to 9/11 — authorizing coercive interrogation, holding detainees at Guantánamo, leading the country into Iraq, ordering the “surge” — was an unprecedented use of presidential power.

This is a book about those precedents, which date back to the founding of the country. Yoo credits George Washington with laying the groundwork for an expansive interpretation of presidential power. Although some senators believed they would share executive power because of their say over appointments, Washington established that it would reside with the president only. Department secretaries answered solely to him and could be removed by him, even though they had to be confirmed by the legislature. Most importantly, however, Washington established that the president, able to act alone and quickly, would make and implement foreign policy, especially in times of crisis. Modesty at such times can hinder a presidency, Yoo argues – James Madison abnegated his foreign policy role, leaving Congress to preside over a disastrous war with Great Britain.

But most presidents since Washington have sought to stretch the boundaries of presidential power as they see fit, and Yoo considers it the mark of our most successful presidents. Franklin Delano Roosevelt and Abraham Lincoln both faced grave crises. Their opponents saw tyranny where they saw constitutionally defensible necessity. Lincoln’s curtailing of civil liberties drew upon the same executive authority that earlier powerful presidents like Andrew Jackson had used. (Yoo, incidentally, credits the populist Jackson with “fulfilling the broadest visions of the framers” by establishing the executive branch as “a coequal, competing voice of the people’s wishes,” but concedes that a lot of what Jackson did with his power is frowned upon today.) When Lincoln ran roughshod over areas traditionally within Congress’s domain, such as when he responded to the Fort Sumter attack without a Congressional declaration of war, it was because the “pressure of emergency” required swift action.

For all of Lincoln’s expansive use of presidential power to fight the Civil War, it was Roosevelt, faced with an economy in shambles and a looming fascist threat, who truly expanded the scope of presidential authority. He worked around or even ignored laws against his actions to support the beleaguered Allies, even when the public didn’t want war, and Congress didn’t want to prepare for it. When the war started, civil liberties were sharply curtailed. American citizens were detained; Japanese-Americans living on the West Coast interned. Roosevelt was called a “warmonger” and a “dictator.”

While past presidents had used war to justify expansive executive action, during the Depression, Roosevelt tried to translate that argument to the domestic sphere, even though the Constitution grants Congress an explicit, enumerated duty to regulate commerce. New Deal policies – such as the creation of the National Labor Relations Board and the National Industrial Recovery Act – shifted legislative power into the White House, creating bureaucracies to regulate the economy and delegating rule-making authority to the president. Congress, the Supreme Court and public opinion all curtailed Roosevelt’s (genuinely) unprecedented arrogation of power.

Roosevelt managed to entrench the executive branch in economic policymaking through regulatory agencies – and the Court and Congress gradually acquiesced. But, as Yoo puts it, FDR’s “broad understanding of his executive power created the foundation for policies that secured freedom in the twentieth century.” The successful Cold War presidents followed his lead. Presidential activism was the necessary response to crises like the Korean War, the Cuban Missile Crisis, and the general effort to contain and ultimately bring down the Soviet Union. The presidency became, over the decades, bigger and more powerful.

Which brings us to Bush, who “reached for a broad vision of executive power.” Crisis and Command rejects the contention of the “contemporary zeitgeist” that the Framers designed the Constitution to give the president relatively limited powers relative to Congress. Yoo’s history makes it clear that presidents have reached for power during times of crisis since the beginning of the republic, and that they have been accused of abusing that power for just as long. Since the legitimate use of such power is circumstantial – that is, it depends on the extent of the threat to the nation’s security – Yoo thinks that a final judgment on Bush’s use of presidential power will depend on whether the 9/11 attacks were in fact a manifestation of a serious long-term threat or merely an isolated event.

However, the resistance presidents face – even if it is politically motivated – serves as a check that encourages a return to normalcy when a crisis ends. Even after the most egregious abuses of power during the Civil War and World War II, peacetime civil liberties came back. But just as economic regulation survived the Depression, so too might the broad presidential powers of the war on terror endure. The expansions and contractions of presidential power could give way to an era of permanent war footing, wiping out the checks peacetime normalcy brings. Even though there is ample precedent for such use of executive power during war, there is no precedent for such powers never receding. That is probably not something the Framers would have intended.

Excerpt: “Left to its own devices, Congress would have blocked aid to the Allies and delayed American entry into World War II by several months, if not years. This may be a result of the internal structure of Congress, which suffers from serious collective action problems. The passage of legislation through both Houses with many members is so difficult that the Constitution can be understood to favor inaction and, therefore, the status quo. The status quo may be best for a nation when it enjoys peace and prosperity, and threats come more often from ill-advised efforts at reform or revolutionary change, but maintaining the status quo may harm the nation when long-term threats are approaching, or unanticipated chances to benefit present themselves during a small window of opportunity.”

Further Reading: Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan by Richard E. Neustadt and Taming the Prince by Harvey C. Mansfield

*Photo courtesy Scott Ableman.