Book review of John Yoo's 'Crisis and Command'

By Jack Rakove
Sunday, January 10, 2010;


A History of Executive Power from George Washington to George W. Bush

By John Yoo

Kaplan. 524 pp. $29.95


John Yoo was a significant participant in the Bush administration's war on terrorism. As a deputy assistant attorney general in the Justice Department's Office of Legal Counsel, he wrote many of the legal briefs on which the Bush administration relied, including, famously, a number of memos relating to the treatment of detainees at Guantanamo Bay.

Since returning to his academic position at the University of California at Berkeley law school, he has published three books. One dealt with the Constitution's allocation of authority over war and foreign relations among the branches of government, with a strong emphasis on the founding fathers' vision. The second was a memoir of his involvement in the war on terror. Now comes "Crisis and Command," which is a vigorously argued and, in some ways, deeply unsettling account of the necessary superiority of the presidency in our constitutional scheme. (Yoo, I must add, is a professional acquaintance of mine across the San Francisco Bay; we have appeared on panels together, and though I disagree in key respects with his positions, his arguments merit attention and respect.)

Yoo's account has a deceptively simple theme: At critical moments, the decisive exercise of power by the president has been the driving force in American history, and neither Congress nor the Supreme Court has ever rivaled the presidency in its capacity to direct how the nation responds to unexpected challenges to its essential interests. Efforts to devise new ways to cabin our presidents -- the best as well as the mediocre and mendacious, such as Andrew Johnson and Richard Nixon -- risk restraining exactly the kind of initiative we want the executive to mount.

In the contemporary battles of constitutional theory, Yoo is decidedly a "departmentalist." Like Andrew Jackson, whom he much admires, Yoo is a firm believer that it is better to let each of the departments of the government stake its claim and fight out whatever conflicts ensue. He is no friend of the modern proposition that the Supreme Court, whose members are the beneficiaries of intensely political appointment, is uniquely qualified to resolve all serious constitutional questions.

Given Yoo's strong conservatism, it would be easy for liberals to dismiss "Crisis and Command" as one more venture in a hackneyed debate. That would be a big mistake. True to form, Yoo does use his two brief final chapters to defend the George W. Bush legacy and drive progressives nuts with the idea that President Obama has some strangely reactionary ideas struggling to control his brain. But the heart of the book is the highly favorable treatment that Yoo extends to five great presidents -- all of whom should rank high on any liberal's list of admirable leaders: Washington, Jefferson, Jackson, Lincoln and Franklin Roosevelt -- followed by a broad survey of the Cold War presidents from Truman through Reagan.

This is a deeply serious history of the presidency, sometimes selective in its emphasis, but always provocative and thoughtful. The recurring theme is how well the republic was served by the initiatives these leaders took.

In two early chapters, Yoo briefly surveys the origins of the presidency, tracking historians (such as myself) who have explained how the anti-executive biases of the first constitutionalists of 1776 gave way to the fresh thinking of 1787. These chapters could have been better argued. There are some errors of fact and, more important, Yoo owes readers a better account of the ambivalence about executive power that still surrounded the presidency after its establishment. It was the least republican office in the new government, and the one position that most of the Constitution's framers, with the exception of Alexander Hamilton, struggled to comprehend. How it would operate once Washington served a term or two was a mystery that no one in 1789 could decipher.

Most of the book, though, is not about the origins of the presidency but about the actions of its most capable leaders. It argues that it is what presidents do when challenged that really matters. Much of this material will be familiar to many readers. As a historian, I have some qualms about Yoo's emphases and omissions. Take his case for Jefferson. One wonders why Yoo worries so much about Jefferson's agonizing over his authority to acquire Louisiana, which may tell us more about Jefferson's scruples than any serious constitutional question of constitutional authority. Nations had long used treaties and other agreements to acquire territory, and Jefferson's doubts seem to have been self-made.

Yoo is downright in love with Jackson's war against the Second Bank of the United States, though many scholars believe that his unshakable campaign did far more harm than good. Maybe James K. Polk deserves a few more pages than he gets as a footnote to Jackson; his decision to manufacture a war with Mexico arguably produced more lasting consequences for the nation than Jackson's mercurial politics. One also wonders why the three presidents who governed from 1897 to 1921 (McKinley, the first Roosevelt and Wilson) are wholly ignored, for, between the wars with Spain (1898) and the Central Powers (1917-1918), and the creation of what we now call the "rhetorical presidency," was an epochal time in the history of the institution.

Yoo's is selective history, then, but he never lets readers forget his central points. The presidents we admire possessed a pronounced confidence in their authority. They were innovators and risk-takers, with an entire branch of government to command. They either faced challenges they could not afford to avoid or raised issues they insisted the nation must confront -- and their office alone had the capacity to focus the nation's attention as a result. They drove American politics in ways that no congressional statesman or jurist -- not even John Marshall or Earl Warren -- could ever equal.

I would, however, raise two deep objections to this overall argument. The first begins with the founding-era debates, which Yoo does not treat with the seriousness needed to capture that generation's persistent uncertainty about the safety of executive power. Establishing the presidency was the framers' most creative act, but it left them profoundly uneasy, because a vigorous executive was so hard to square with underlying republican ideas. The models of executive power in the 18th century were either monarchical or ministerial. There was no real precedent for the institution the framers conceived.

The second concerns Yoo's use of the idea of prerogative -- the notion that the government must possess some discretion to deal with threats no one can ever fully anticipate. Here Yoo relies on John Locke's famous chapter on prerogative from his "Second Treatise" (1690), the revolutionary work that justified the right of a people to overthrow tyranny and establish a new government. The people, Locke suggested, would rightly trust the executive to use prerogative wisely, and if they agreed with his purpose, they would cut him slack on the constitutional side, understanding why the benefits sometimes outweighed the costs. But the question of whether the prerogative was broad or narrow remained, Locke thought, a matter of legislative supervision, always subject to a review that Yoo, with his deep distrust of Congress, finds alarming.

There is, in short, a tension that Yoo does not wholly resolve between underlying republican values and the virtues of presidencies that he champions. The great lesson of this past decade of misrule has been that our system works best when all three institutions are fully engaged. However much we celebrate the heroic presidents, Americans, as a people, have a stake in seeing the whole government achieve its potential. Yet what Yoo forces us to confront is the reality of all the striking advantages the executive enjoys. It is, in its way, an enticing portrait of presidential power -- and a disturbing one.

Jack Rakove teaches history and political science at Stanford University. His new book, "Revolutionaries," will appear in May.


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