Enfeebling the presidency: the executive branch is a co-equal branch, or so the Framers said.

IT may be impossible to date precisely when the American Left, and especially its intellectuals, began to fall out of love with the presidency, but a compelling case can be made for November 22, 1963--the day John F. Kennedy was assassinated. From the intelligentsia's perspective, Kennedy was quite simply their president. He was Harvard-educated, personable, stylish, funny, and eager to surround himself with "the best and brightest." Kennedy's 1960 campaign was a crusade of youth and vigor and of liberal good intentions. His election was, for them, a true passing of the torch (as Kennedy noted in his inaugural address) to a new generation of leaders who could, and would, change the world.

When the sun set on November 22, Lyndon Johnson was president--and Johnson was nothing if not the anti-Kennedy. He was not Ivy League. He looked, talked, and acted like what he was, a Texan. One of the most skilled and successful managers of the U.S. Congress in history, Johnson as president achieved far more for the "progressive" agenda than Kennedy would likely ever have attempted (and perhaps even wanted). For Camelot's lords and ladies, however, Johnson would always be the Other. And then, of course, there was Vietnam. This was a catalyst. By June 1967, Newsweek was publishing an article on "LBJ and the Intellectuals," recounting the president's efforts to "win back the campus defectors." He could, of course, have saved himself the effort.

As one of Johnson's advisers explained at the time, "the intellectuals would like to govern, but are too weak and too abstract to be a governing force." Johnson himself summed it up even better: "Presidents deal with power. Power is real. Power is not pretty. And I guess these people don't understand power brokers like they do art brokers." Over the next 40 years, of course, "these people" never did become a governing force. Time and again, their favored candidates were defeated, either in primaries or in general elections. Jimmy Carter, while a nuclear engineer, was never embraced by the Democratic establishment as one of its own. Only in 1992, with Bill Clinton's election, did a card-carrying policy wonk enter the White House, and his freedom of action was quickly constrained by the Republican Congress elected in 1994. Indeed, the Clinton tenure became a textbook example of how difficult it is for even a Democratic president to govern leftward enough to satisfy the core Democratic-party constituencies.

In 2006, America's Left again finds itself with a president who looks, talks, and acts like what he is, a Texan--and they are not happy. It is hardly surprising, therefore, that the presidency itself, along with the whole idea of robust executive power, has fallen into disfavor with the country's liberal thinkers and activists, and more than a few of its Democratic politicians. Looking below the surface, however, we see far more at work here than personal disappointments, pique, and irrational hatred of the Texas style. The current anti-executive-power animus can't even be attributed to the alleged policy excesses of the Bush administration. Indeed, this administration has been far more cautious in its war-related legal policies than its predecessor wartime presidencies. Unfortunately, today's denigration of the presidency is robust enough and comprehensive enough that it is likely to survive George W. Bush's tenure, and to become a long-term fixture of America's legal and political discourse.

The actual engine driving the hostility to presidential power is a fundamental suspicion of, and opposition to, the use of American power as a means of defending and advancing U.S. interests at home and abroad, rooted in a tendency to see the U.S. as a negative force in world affairs. This hostility is shared widely on the left, and has more than a few proponents on the right. If one's ultimate goal is to constrain the use of American power on the world Messrs. Rivkin & Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and Bush 41 administrations. stage, it is the president who must be hobbled: He is both the symbol of strong American government and the actual locus of the initiative in formulating and implementing U.S. foreign policy. And because, in the aftermath of 9/11, the U.S. has found itself at war against a ruthless and determined foe, necessitating the robust use of various presidential powers, the critics have found numerous opportunities to advance this effort.

Of course, disputes over the nature and extent of presidential power are nothing new. Americans have fought about presidents, and the presidency, since the Republic's founding. The difference today is the vigor with which the institution itself, rather than simply the incumbent, is attacked, the comprehensive nature of the anti-executive sentiments, and the prevalence of these attacks on one side of the political spectrum. In particular, these attacks have taken three basic forms: 1) a basic denial of the president's role as the ultimate repository of all executive power--a principle sometimes referred to as the "unitary executive"; 2) the promotion of a model of executive power that would treat the president as little more than the executor of Congress's will, rather than an independent and co-equal branch of government; and, most especially, 3) demands that the courts serve a supervisory role over presidential decision-making--even with respect to the president's conduct of armed conflict. Only the last of these points is really new in American political discourse; but all are equally pernicious.

ONE-MAN BRANCH?

Whether the entire executive power should be vested in a single elected official was one of the key questions considered by the 1787 Constitutional Convention. The fear, expressed over and over by various Framers, was that a single executive would tend inevitably toward monarchy. According to James Madison's Notes of Debates in the Federal Convention, Virginia's Edmund Randolph "strenuously opposed a unity in the Executive magistracy. He regarded it as the foetus of monarchy." Ultimately, however, that position did not carry the day: Although a single individual vested with all of the executive power--rather than several executive officers or a disposition of executive functions among other branches of government--might look like a form of elected monarch, such a figure was essential to achieving the unity of command, energy, and dispatch needed to defend the nation's interests. As Alexander Hamilton wrote in the Federalist: "Energy in the executive is a leading character in the definition of good government.... A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution." In other words, the Framers adopted a unitary executive for good and sufficient reason: Achieving these ends had been the very purpose of drafting and adopting a new Constitution, reflecting the widespread dissatisfaction with the experience of our national governance under the Articles of Confederation, when the executive power was vested in Congress.

Thus, when, earlier this year, the New York Times characterized the unitary executive as a "fringe" theory, it was dismissing the actual intent and purpose of the Constitution's Framers--not to mention the plain meaning of that document's text, which states that "[t]he executive Power shall be vested in a President of the United States." The Times's comment was part of a last-ditch editorial effort aimed at convincing Senate Democrats to block Justice Samuel Alito's Supreme Court nomination; but there is little doubt that the Times was also trying to advance the broader view of the intellectual Left that there is effectively no power held by the president that should not be subject to the control of Congress and/or the courts. They do not believe that the president should merely be subject to actual constitutional checks and balances (such as impeachment or the power of the purse)--but that Congress and the courts have a right to direct on an ongoing basis how the president executes the core functions of his office.

Acceptance of this position would, of course, transform the presidency from a co-equal and independent branch of government into the servant of (chiefly) Congress. This is not what the Constitution provides for, and it was only a minority of that document's Framers who ever considered such an arrangement desirable. First among these was Connecticut's Roger Sherman. According to Madison's Notes, early in the Convention, when the delegates began discussion of the executive power, Sherman "said he considered the Executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect." Again, as with opposition to a unitary executive, this position did not prevail. Indeed, much of the Convention's subsequent discussions revolved around how to ensure that the national executive would be independent of Congress. As Madison later wrote, the executive, legislative, and judicial powers must be both separate and "independent of each other.... Experience had proved a tendency in our governments to throw all power into the Legislative vortex. The Executives of the States are in general little more than Cyphers; the legislatures omnipotent. If no effectual check be devised for restraining the instability & encroachments of the latter, a revolution of some kind or other would be inevitable."

WHO SHALL PREVAIL?

Thus, the Constitution ultimately established a system of independent branches of government with complementary, and sometimes conflicting, powers. The branches check one another, but none is superior. Thus, for example, the president is commander-in-chief of the armed forces, but Congress is empowered to "make Rules for the Government and Regulation of the land and naval Forces." Where Congress's power ends and the president's begins, and vice versa, is not delineated, and, as a consequence, most of these disputes are not susceptible to judicial resolution. The Framers left this question to the thrust and parry of practical politics and the good sense of their posterity. In fighting these battles, however, it is important to recall that there is no inherent presumption that an exercise of congressional authority designed to constrain the president is any more or less legitimate than the exercise of presidential authority itself.

It is this often unarticulated (and incorrect) assumption--that Congress's power is somehow greater or at least more legitimate than the president's--that is behind many of the legal arguments advanced against President Bush's conduct of the War on Terror. Ironically, the source of this misunderstanding is a Supreme Court decision that, in its holding, actually reaffirmed the equal dignity and separation of the legislative and executive branches of government. Youngstown Sheet & Tube Co. v. Sawyer (1952) involved President Truman's decision--hours before a United Steelworkers' strike deadline--to take over most of the nation's steel mills. In justification, the president noted that an uninterrupted supply of steel was necessary to prosecute the Korean War. The mill owners challenged Truman's order, claiming that it was legislative in character and that Congress had not authorized the president to intervene in a labor dispute in this manner. The Supreme Court agreed, holding that the president's authority as chief executive and commander-in-chief did not justify his action. The president, it concluded, simply did not have "the ultimate power ... to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities." The Court's conclusion was indeed correct; even the most expansive reading of executive power does not support the president's ability to commandeer economic production or control other domestic elements of the body politic, merely because of their impact on war prosecution.

The most politically significant aspect of this case, however, was not the Court's holding, but the analysis suggested by Justice Robert Jackson in a concurrence. Jackson posited a three-part test of presidential power: 1) Where the president acts in accordance with an express grant of Congress, his authority is at its zenith, "for it includes all that he possesses in his own right plus all that Congress can delegate"; 2) where the president acts without a clear congressional grant or denial of authority, "any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law"; and 3) where the president acts against the express wishes of Congress (as Jackson believed Truman did in the Youngstown case), "his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."

Although Justice Jackson presented here a neat paradigm--much loved by generations of lawyers and political scientists--it was not a part of the Supreme Court's Youngstown holding, it has never been the law, and subsequent Supreme Court cases have expressly criticized it as being overly simplistic. Moreover, it left the incorrect impression (probably not intended by Jackson) that the president's own constitutional powers, those he holds entirely independent of Congress, are somehow inferior in scope or efficacy, and that his chief role is to serve as the executor of congressional wishes. This position may have pleased Roger Sherman, but it was rejected by a majority of the Constitution's Framers as undesirable and unworkable.

LACKING IN DISCRETION

These days, the executive's critics appear to posit that there is no legitimate area of discretionary presidential power--no presidential decision that cannot or should not be subjected to judicial review and, if necessary, correction. This view has been especially well represented in the attacks on Bush-administration policy with respect to the war against al-Qaeda and its allies. Here, most prominently, critics have claimed that the president must treat captured enemy combatants as criminal defendants, providing them with all of the rights and privileges enjoyed by the accused in civilian courts; that his interpretation of various treaties, such as the Geneva Conventions and other U.S. international-law obligations, must be subject to judicial review; and that his efforts to track and monitor enemy communications within the U.S. must also be subject to judicial oversight. Although similar claims have occasionally been advanced during America's past wars, they have never commanded such wide support among a president's political opponents, or the intellectual classes in general.

Traditionally, of course, presidents have exercised the greatest power with respect to the formulation and implementation of U.S. foreign policy generally, and during wartime in particular. As Justice Thomas wrote in the 2004 Hamdi v. Rumsfeld case, where a captured Taliban fighter challenged the legality of his detention as an "enemy combatant": "The Founders intended that the President have primary responsibility--along with the necessary power--to protect the national security and to conduct the Nation's foreign relations." Further, the Supreme Court "has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and that this authority carries with it broad discretion."

Indeed, as clearly understood by the Framers (inspired by such political philosophers as Montesquieu), discretionary governmental power can be properly wielded only by an executive. And, while any discretionary exercise of power can lead to abuses, the primary constitutional way to deal with this problem is through political accountability--not by having either Congress or the courts share in the decision-making process. One key part of this inherent executive discretion is the determination of who is, and who is not, an enemy combatant subject to attack and capture by American and allied forces in wartime. Although, as Justice Thomas noted, the question of whether "Hamdi's executive detention is lawful is a question properly resolved by the Judicial Branch ... whether Hamdi is actually an enemy combatant is [a determination] 'of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.'"

This has, in fact, long been the settled rule of constitutional jurisprudence. Unfortunately, in 2004, Justice Thomas was writing in dissent, the majority of justices having agreed that some form of process--albeit one formulated and administered by the executive--was required to permit detainees to challenge their classification as "enemy combatants." Still, even this was not sufficient for many of the administration's critics, who continued to deny the legitimacy of these detentions in the absence of a full criminal trial.

Similarly, arguments have been made that the president's interpretation of the Geneva Conventions with respect to the conflict with al-Qaeda and the Taliban should be subject to judicial revision. The courts do, of course, interpret and apply treaties in those instances where the justiciable rights of individuals are involved. In a case like the Geneva Conventions, however, where the "rights" are held by nations--e.g., the U.S. has a right to have its captured soldiers treated as "prisoners of war" under the Third Geneva Convention--and not by individuals, it is up to the executive to construe and apply U.S. treaty obligations.

Most recently, of course, the entire controversy over the National Security Agency's program to intercept al-Qaeda communications into and out of the U.S. has involved claims that the president violated the 1978 Foreign Intelligence Surveillance Act (FISA), and that all such surveillance decisions must be subject to judicial approval or disapproval. It has long been recognized that the president has the inherent constitutional right, as chief executive and commander-in-chief, to conduct warrantless surveillance for national-security purposes, both at home and abroad. This authority has been affirmed by those courts that have discussed the question, although whether information obtained through such presidential action would later be admissible at trial depends on the specific circumstances in each case. In the wake of Watergate, however, Congress enacted FISA as a means of regularizing the process and avoiding abuses.

FISA established a special panel of judges (commonly referred to as the FISA court) to receive and consider executive-branch requests for orders permitting various forms of electronic surveillance. Although the appellate panel of that court has itself acknowledged that FISA did not--and could not--extinguish the president's independent constitutional authority in this area, critics of President Bush's decision to monitor certain al-Qaeda communications without seeking a FISA order have claimed that he acted illegally. One of the principal assumptions underlying this claim, and also key to a number of the "reform" proposals now under consideration, is that the courts must have an ongoing supervisory role over the executive's activities in this area. This is both unprecedented and profoundly unconstitutional.

A POWER GRAB

At first blush, empowering the judiciary in this manner would not seem to be in Congress's institutional interest (as it exalts a non-political branch over a political one), nor in the interests of either major political party (a Democratic candidate will, sooner or later, recapture the presidency). There are, however, two distinct--but complementary--phenomena at work here. First, although charging the courts with presidential oversight would seem to reduce congressional authority, it also very significantly reduces the attendant political risks to Congress's members. The decisions at issue here are some of the most controversial that can be taken in our system of "ordered liberty." Civil liberties are implicated, and Congress has been called upon (especially by the media) to rein in the president's power. At the same time, the programs involved--especially the detention of captured al-Qaeda and Taliban members and the interception of al-Qaeda communications--are obviously in the national interest and popular with the electorate. Hence, reining in the president, which Congress can always do through the use of the power of the purse, entails high political risks. These risks exist, of course, precisely because the Framers intended that Congress, when checking the president, do so in a transparent and, therefore, politically accountable fashion. Members undoubtedly dread the possibility that, having blocked the NSA from continuing the warrantless terrorist surveillance program, they might be told by a future 9/11 commission that this contributed to another deadly attack on American soil.

Even exercising a vigorous oversight function or mandating greater information-sharing with Congress--actions that were the focal point of the previous wave of attempted congressional foreign-policy micromanagement in the 1970s and 1980s--entails high risks. By contrast, having judges--who are not accountable to the voters for their actions, and whose decisions, no matter how deadly their consequences, cannot be laid at Congress's doorstep--intervene is a godsend to more than a few tender stomachs on Capitol Hill. Many members of Congress would gladly trade their institutional prerogatives for job security.

Second, and even more significant, there is a profound ideological component at work here. Since the 1960s, the Left, and now some on the right, have come to oppose any vigorous use of American power overseas--unless it commands the approbation of the "international community," as expressed through various multilateral institutions such as the United Nations Security Council. It is the president who, in the American scheme of government, is capable of directing American power in a unilateral, and hence inherently "suspect," manner. He alone can act with energy, dispatch, and decision--just as the Constitution's Framers intended. It is not, therefore, surprising that the opponents of a strong American leadership role now challenge that design.

It is difficult to imagine a more effective means of ensuring that the president will not act decisively than involving the courts in supervising his actions. Courts are, by nature, deliberative, and deliberation takes time. The courts have little or no means of obtaining and analyzing the information necessary to make foreign or military policy; they are not cohesive (various trial and appellate courts issue inconsistent decisions on the same subjects, and the Supreme Court often has real trouble ensuring that lower courts follow its lead); they cannot execute their own orders; and they do not command the public's confidence or affection as a president can in times of crisis. They have, however, a long and proven record of advancing "progressive" causes, and many on the left continue to assume that the courts will provide more such results than could be expected from the political process.

Those conservatives who, out of anger or disappointment, wish to see the Bush administration bridled, or who fear that the power claimed by President Bush today will be used for worse ends by a Democratic successor tomorrow, should keep in mind Hamilton's words quoted above: "A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution." The Framers created a strong president to ensure a strong national government that could protect the national interest. That concern remains as central today as it was in 1787.

Messrs. Rivkin & Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and Bush 41 administrations.