Monday, August 4, 2008

Louis Fisher responds to John Yoo on Jefferson and executive privilege

When I saw that John Yoo had posted two new legal history papers on SSRN (hat tip to Mary), I wondered what a national security law expert like Louis Fisher might have to say about Yoo's work. So I asked. Below is Lou's response to the first paper, “Jefferson and Executive Power." (A future post will record his reaction to the second paper, titled “Andrew Jackson and Presidential Power.”)

Dr. Louis Fisher is among the nation’s foremost experts on constitutional law and public policy, with particular expertise in (among other areas) executive authority, separation of powers, and war powers. A specialist in the law Library of the Library of Congress, he has been both a prolific scholar and dedicated public servant since he first joined the staff of the Congressional Research Service in 1970. Dr. Fisher has testified before Congress dozens of times; is frequently cited as an authority in Supreme Court briefs; and has spoken about the U.S. Constitution in nearly 30 countries around the world. He has published hundreds of articles and many books, including American Constitutional Law (7th ed., 2007, with David Gray Adler); In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (2006); Constitutional Conflicts Between Congress and the President (5th ed., 2007); Presidential War Power (2nd ed., 2004); and Nazi Saboteurs on Trial: A Military Tribunal and American Law (2003).

Here is the SSRN abstract for Yoo's piece on Jefferson:

Jefferson and Executive Power
by John Yoo, University of California, Berkeley, School of Law

This paper argues that Thomas Jefferson was not the opponent of presidential power commonly assumed today. Jefferson is often thought to be a sharp critic of executive authority because he favored a national government of limited powers and because of his opposition to the Washington and Adams administrations. But as President, Jefferson expanded executive authority by resisting the courts, buying Louisiana, conducting foreign affairs, and managing legislation through Congress. Jefferson's actions as President did not contradict his positions in the opposition, as claimed most famously by Henry Adams, but were instead consistent with his earlier views on executive power. In fact, Jefferson supported perhaps the broadest conception of the Presidency in his belief in a Lockean prerogative that would allow the executive to act without constitutional authorization, so long as the people approved after the fact.
Here is Fisher's response:

John Yoo, "Jefferson and Executive Power." Review by Louis Fisher, Library of Congress.

This article offers a good overview of the legal and constitutional philosophy of a President. No doubt Jefferson actively invoked executive power, but many of the examples cited by Yoo raise no questions of illegal or unconstitutional action (trimming the number of Federalists in government, exerting leadership in Congress, and pardoning those convicted under the Sedition Act). Yoo goes beyond those examples to describe actions by Jefferson that might appear to sanction unchecked and exclusive executive power.

For example, he has this statement by Jefferson: "The transaction of business with foreign nations is executive altogether." Those words, if taken at face value, are misleading. Yoo neglects to point out that Jefferson was writing about a very narrow dispute concerning the Senate's role in the appointment of ambassadors and consuls. The issue was whether the Senate had a right to veto not only the person to be appointed but also the grade the President might want to use for the foreign mission. Jefferson fully realized that both branches make foreign policy through statutes and treaties and that it is the President's duty to represent the nation in seeing that the law was carried out. "Transactions" meant some form of communication; it did not mean unchecked, unilateral presidential policy.

Yoo makes no mention of an important role that Jefferson played with the Algerine treaty of 1792. President Washington wondered if it was better to borrow money to pay "tributes" (bribes) to the Barbary pirates. As Secretary of State, Jefferson counseled against that course. Loans would have to be repaid and Congress would not be happy about Washington's unilateral commitment. He advised Washington to go to Congress (both houses) to get approval, and to share treaty documents not only with the Senate but with the House. Washington did so. Louis Fisher, The Politics of Executive Privilege 30-33 (2004).

Several years later Washington made his famous statement about the House not being entitled to receive documents on the Jay Treaty, explaining that only the Senate had a constitutional role. This argument was makeweight, a disingenuous effort to keep from the House materials that were highly embarrassing to the administration and might have doomed congressional support for the treaty. Jefferson and other Presidents understood that it was often important to bring the House into treaty commitments and also to involve Senators and Representatives in the negotiation of treaties.

Yoo glosses over the Aaron Burr trial and concludes that it marked "the first true precedent for executive privilege." Oddly, he relies on a secondary source (Forrest McDonald's "The Presidency of Thomas Jefferson") instead of the trial transcript, which Yoo looked at quite closely when he wrote a 1999 article for the Minnesota Law Review.

Anyone reading the trial transcript would understand that it is inaccurate for Yoo to say that "Jefferson on principle refused to acknowledge the court's right to force the executive to produce information." It is true that Jefferson said that if the President were "subject to the commands" of the judiciary he might become subordinate to another branch. Jefferson also said he could not be kept "constantly trudging from north to south & east to west" responding to court orders, but that simply meant he could not personally appear in court. His subordinates from the administration could do that trudging -- and they did.

Jefferson knew that he could not charge Burr with treason (carrying a death sentence) on the basis of letters from General Wilkinson and not show those documents to Burr. That was elementary for any criminal proceeding. The administration's case was so weak that a final showdown was not necessary. As Yoo notes, Burr was acquitted. Had the trial proceeded, Jefferson faced a choice: either give Burr the documents or drop the charges. Jefferson understood that and so did Chief Justice John Marshall. Yoo mentions none of this. The Burr trial was not "the first true precedent for executive privilege."

Yoo provides substantial detail on Jefferson's sending of ships to the Mediterranean and military encounters with the Barbary pirates. Very interesting material and well told. The fact is that Jefferson realized that the only branch that could take the country from a state of peace to a state of war was Congress, and for that reason (as Yoo states) he told Congress: "Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence," he needed lawmakers to pass authorizing legislation. Congress did so, and did again with Madison, for a total of ten authorizing statutes. No "inherent" power existed for the President to act unilaterally for reasons of national security.

Jefferson's initiatives with the Louisiana Purchase are described in close detail by Yoo. It is true that Jefferson went beyond treaty instructions, the law, and the Constitution in buying not just New Orleans but the whole Louisiana territory. To Jefferson's credit, he never claimed to be acting legally or constitutionally. He did not find, somewhere in Article II, legitimate grounds for action. As Yoo explains, initially Jefferson thought it advisable to go public with his misgivings and ask for a constitutional amendment to bless the purchase. When that seemed likely to upend the negotiations, he chose to remain quiet and let the transaction proceed. He hoped that Congress would sanction what he had done and he prevailed.

Yoo correctly describes Jefferson's belief in the Lockean prerogative: the right of an executive -- for the public good -- to take action sometimes in the absence of law and even against it. But the executive must then come to the legislative branch, explain what he did, and face the consequences: either retroactive approval or being removed from office. As Yoo explains, Jefferson looked for ratification of an ultra vires action: "an indemnity from the people through their representatives in Congress."

Jefferson did not claim plenary, exclusive, independent, or inherent presidential authority. He never argued, as did the Bush administration after 9/11, that presidential powers under Article II enabled him to violate any statute or treaty that stood in his way. I think it is false for Yoo to write: "Contrary to popular belief,
Jefferson believed in an independent Presidency with inherent powers." Jefferson believed in the Lockean prerogative, subject to the conditions described above.

In reading this article, I wondered if John Yoo decided to look to earlier Presidents to determine whether their concept of the office might justify what President George W. Bush did after 9/11. Perhaps my suspicions are groundless, but the quote above did not help, nor the following: "Madison's low performance is attributable in part to his narrow view of his constitutional powers as President." Nothing in Jefferson's presidency lends support to the view widely circulated in the Bush administration that the President is endowed with inherent powers in national security that trump statutes, treaties, judicial decisions, and the Constitution.


Ralph Hitchens said...

Very interesting. As an aside, the first suggestion that Jefferson, once in office, became the active expansionist of presidential power so contrary to his earlier persona came (so I recall) from one of Gore Vidal's novels -- probably "Burr." Certainly the Louisiana Purchase was, as you say, outside the realm of presidential powers according to the Constitution, but thanks for clarifying some of Jefferson's other presidential actions.

Patrick S. O'Donnell said...

Nice idea to solicit Fisher's thoughts on Yoo's papers: thanks! I look forward to the second post.