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

defeating the Soviet Union. Executive power could have been domesticated, but only by depriving it of the very qualities that allowed it to respond successfully to the challenges of the Cold War.



RETURNING TO FIRST THINGS
    BUSH'S REPUTATION WILL depend on whether future historians judge his exercise of presidential power to have been justified by the circumstances. If the September 11, 2001, attacks marked the emergence of a serious foreign threat to the nation's security, the invocation of broad presidential powers will have been appropriate. Presidents like Lincoln and FDR may have gone too far at times, but we forgive them their trespasses because they led us through the Civil War and World War II. If it turns out that the United States had overreacted to what was essentially an isolated event, the exercise of presidential power will prove to have been unnecessary and counterproductive. The difficulty in reaching a judgment now is that we are still living through the period of threat, and we cannot judge ex post whether the long-term reorientation of national security powers was necessary to meet it. This is not to argue that Bush is destined to rank among the great Presidents or even those considered above-average. It means that only when we have the benefit of distance will we know whether Bush's aggressive use of executive authority was too much, too little, or just right.
    Understanding the contingency of our current circumstances brings us back to where we began, the purpose of the executive. As originally conceived, the need for the executive arose to respond to unforeseen dangers, unpredictable circumstances, and emergencies. It was given the virtues of speed, secrecy, vigor, and decisiveness to most effectively marshal society's resources in a time of crisis. The executive could correct for the instability, fractiousness, and inability to organize and decide (caused by what we today think of as transaction costs of a republican legislature) under time pressure. If the circumstances demand, the executive can even go beyond the standing laws in order to meet a greater threat to the nation's security.
    It remains an open question whether the Constitution incorporated this prerogative. Hamilton believed that Article II's vesting of the executive power in the President necessarily included the ability to meet any challenge. To him, this power ought to "exist without limitation because" the "circumstances that endanger the safety of nations are infinite." There was no prerogative in the Lockean mold, only a President with open-ended powers in time of emergency. This broad conception of the executive underpinned the broader Hamiltonian program. A President of broad powers would guide the national government by developing proposals, managing legislation, and vigorously enforcing the law and setting foreign policy. In contrast, Jefferson believed that the President's ability to access the prerogative existed independent of the Constitution. To him, the natural right of self-preservation allowed the President to act beyond the Constitution itself when defending the nation. Whereas Locke believed that the executive would have to appeal to the heavens in the event of an exercise of the prerogative, Jefferson believed that an appeal to the nation was in order.
    The prerogative allowed Jefferson to keep his devotion to a strict interpretation of the Constitution. If the prerogative could serve as a safety valve when emergency placed the government under stress, the Constitution would need no stretching. The government's powers would remain limited, rather than permanently extended, and individual liberty and hopefully state sovereignty would be preserved. The process for confirming the executive's use of the prerogative, an appeal to the people, advanced Jefferson's agenda to make the President the democratic representative of the nation as a whole. Jefferson did not believe that the approval of Congress or the courts alone