Crisis and Command
Former Deputy Assistant Attorney General John Yoo Examines Presidential Power from the Founding Fathers to Today


FOR IMMEDIATE RELEASE: January 13, 2010

An American president faces war and finds himself hamstrung by a Congress that will not act. To protect national security, he invokes his powers as commander-in-chief and orders actions that seem to violate laws enacted by Congress. He is excoriated for usurping dictatorial powers, placing himself above the law, and threatening to "break down constitutional safeguards." One could be forgiven for thinking that the above describes former president George W. Bush. Yet these particular attacks on presidential power were leveled against former president Franklin D. Roosevelt.

As AEI scholar and law professor John Yoo writes in his latest book, Crisis and Command: A History of Executive Power from George Washington to George W. Bush (Kaplan Publishing, January 2010), the beginning paragraph could just as well describe similar attacks leveled against other great presidents:

  • George Washington for his conduct of the Indian Wars, during which Congress's power to control the president's initiatives came not through formal legislation or declarations, but via its monopoly over funding. By taking all the political responsibility for the success or failure of the Indian Wars, Washington set an example of executive leadership upon which future presidents would draw.
  • Thomas Jefferson, who believed that a president could act decisively, even without congressional approval, to acquire foreign territory like Florida and Louisiana.
  • Andrew Jackson, who, as a general, did not think he had to wait on congressional approval before taking military offensive action. He removed Indian tribes from the Louisiana Purchase areas to the Western frontier and seized all of Spain's territory in Florida even though Congress had never authorized any military action against the Spanish.
  • Abraham Lincoln, who invoked his authority as commander-in-chief and chief executive to conduct the Civil War, initially without congressional permission. He made critical decisions on tactics, strategy, and policy without input from the legislature, the Emancipation Proclamation being one of the most controversial. Lincoln also unilaterally suspended the writ of habeas corpus in 1861, replacing civilian law enforcement with military detention without trial, and reduced civil liberties in favor of greater internal security.

Yoo points out that even in his first year in office, President Barack Obama has already shown every indication of a vigorous view of executive power--from his takeover of General Motors to his stance on Afghanistan.

However bitter, complex, and urgent today's controversies over executive power may be, Yoo reminds us that they are nothing new. In Crisis and Command, he explores a factor too little consulted in current debates: history. Through a meticulous analysis, the author demonstrates that the bold decisions made by Washington, Jefferson, Jackson, Lincoln, and FDR changed more than just history; they also transformed the role of the American president. The link between a vigorous exercise of executive power and presidential greatness, Yoo argues, is both significant and misunderstood.

Yoo makes a compelling case that the Founding Fathers deliberately left the Constitution vague on the limits of presidential power so as to allow strong presidents leeway to act in defense of the nation in times of crisis. Far from being an apologia for the policies of the Bush administration, in which he served, Yoo draws on history to demonstrate the benefits to the nation of a strong executive office, especially in today's times of terrorist threats and economic crises that place even more stress on the presidency and its relationship to the three branches of government.

John Yoo is professor of law at the University of California at Berkeley School of Law and a visiting scholar at AEI. From 2001 to 2003, he served as deputy assistant attorney general in the Office of Legal Counsel of the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security, and the separation of powers. He is the author of The Powers of War and Peace: Foreign Affairs and the Constitution after 9/11 and of War By Other Means: An Insider's Account of the War on Terror.

To schedule interviews with Professor John Yoo, please contact Hampton Foushee at [email protected] or 202.862.5806.

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