Crisis and Command: A History of Executive Power from George Washington to George W. Bush (6 page)

When the New Jersey Plan won supporters, Alexander Hamilton rose in support of a stronger executive. He proposed essentially a King, giving rise to lifelong suspicions that he was a closet monarchist. His "governor" would be selected by electors chosen by the people, and hold the office for life unless impeached for malfeasance.
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It would not just execute the laws but would have an absolute veto, make treaties and appointments with the advice of the Senate, and direct the military. The governor would exercise "the supream [sic] Executive authority of the United States." Hamilton admitted that he took his inspiration from the British monarchy, practically guaranteeing that his proposals would go nowhere. Hamilton never made a formal proposal to the Convention but used a radical speech to push the delegates into a reasonable compromise.

By the end of the first week of discussion, the delegates agreed that a single individual should head the executive. By August, the executive would become "Commander in Chief of the Army and Navy of the United States, and of the Militia of the Several States," and receive the power to execute the laws, to appoint officials, to call Congress and recommend legislation, to receive ambassadors, and to grant pardons. Out of concern over executive aggrandizement, the Senate initially received sole power over treaties and appointment of ambassadors, as well as the power "to make War; to raise Armies; to build and equip Fleets" and powers over taxation, spending, and the regulation of commerce. The Senate served as an executive council, modeled on those of the states, which shared executive power with the governor. Senators were to be elected by the members of the House rather than appointed by the state legislatures.
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Further work on the executive awaited resolution of the most contentious issue of the Convention: the debate over whether Congress would represent the population or the states. In the Great Compromise of July 16, 1787, the small and large states finally agreed to a bicameral legislature with a Senate with equal voting power among the states, a decision that had a profound effect on the Presidency. As Jack Rakove has argued, as the Senate became the protector of state interests, it lost its special justification to manage foreign affairs. The Great Compromise rippled outward, affecting both federalism and the separation of powers.

The Senate's transformation gave a new urgency to those who wanted a President to serve as a counterweight to Congress. Even Madison, who had included legislative selection in the Virginia Plan, now joined Wilson and Morris. "It was essential," he argued, "that the appointment of the Executive should either be drawn from some source, or held by some tenure, that will give him a free agency with regard to the Legislature."
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Morris laid out an innovative case for a strong independent executive. Reversing Montesquieu's contention that republics could only be small, Morris argued that only a President with vigorous powers could hold such a large nation as America together. Roger Sherman of Connecticut and Charles Pinckney of South Carolina objected that the people were too uninformed to choose the best candidate, that state favoritism would prevail, or that demagogues would dominate. Morris responded that an independent executive would balance Congress. Allow legislative selection of the executive, Morris warned, and the President "will not be independent of it; and if not independent, usurpation and tyranny on the part of the Legislature will be the consequence."

Over the next few days, the Convention wavered between selection by the legislature or by electors chosen by the states or the people. Discussion ranged from whether the electors from faraway states could travel to the national capital to vote (an important consideration in the day of horse and sail) to whether foreign nations would bribe legislators. The delegates also went back and forth over the veto. In the first week of discussions, the convention agreed to a limited veto with a council of revision in which the President and members of the judiciary could block unwise, unjust, or improper laws. Instead of serving as a check on the executive, the council responded to fears that the executive would lack the political "firmness" to stand up to the legislature
without
support from the judiciary.
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Eventually, the Convention eliminated the council but kept the President's limited veto.

A small group of delegates, known as "the committee of detail," took on the job of winnowing down the principles approved in June and July. It produced a draft Constitution in early August. Wilson, the consistent supporter of an independent executive, headed the committee, and it showed. The Constitution now vested "the executive power of the United States" in one man. The President served as Commander-in-Chief and held the right to appoint inferior executive officers, veto legislation, carry out the laws, issue pardons, receive ambassadors (the primary means of carrying out foreign affairs in the eighteenth century), and recommend legislation.
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The draft kept the powers to appoint judges and make treaties with the Senate, and gave Congress other elements of the British monarch's authority, such as raising armies, making war, and regulating commerce.

Based on the most powerful state executive of the time, New York's, this draft became Article II of the Constitution. Far from favoring a weak executive, the Framers had chosen the strongest republican model available. Presidential power continued to gain as the end of the Convention drew near. On August 15, the delegates decided that a qualified veto was necessary to protect against congressional abuse. Wilson remarked that "the prejudices [against] the Executive resulted from a misapplication of the adage that the parliament was the palladium of liberty,"
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and where "the Executive was not formidable," people would likelier equate the "legislature and tyranny." Morris pressed for an absolute veto to guard against "encroachments of the popular branch of the Government." "If the Executive be overturned by the popular branch," he warned, "the tyranny of one man will ensue."
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Supporters of a strong executive even succeeded for a time in setting the votes needed to override a presidential veto at three-quarters of both houses of Congress, rather than the two-thirds we have today.

War was next on the agenda. On August 17, Charles Pinckney moved that the power to "make war," then vested in Congress, be transferred to the Senate alone, because the former's "proceedings were too slow."
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The Senate, he thought, would be small and more familiar with foreign affairs. Pierce Butler of South Carolina responded that the Senate would suffer from the same problems as Congress, so the war power should be given to the President, "who will have all the requisite qualities, and will not make war but when the Nation will support it."

James Madison and Elbridge Gerry of Massachusetts (who in later life would become the author of salamander-shaped electoral districts) proposed that the Convention amend Congress's power from "make" war to "declare" war. According to Madison and Gerry, the amendment would make clear the President's authority to "repel sudden attacks."
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Roger Sherman of Connecticut opposed that change because he wanted the executive to "be able to repel and not to commence war." Gerry responded that he "never expected to hear in a republic a motion to empower the Executive alone to declare war." George Mason of Virginia opposed "giving the power of war to the Executive," because he "was for clogging rather than facilitating war; but for facilitating peace." Yet, Mason supported the amendment. Rufus King of Massachusetts defended the proposal because giving Congress the power to "make" war "might be understood to 'conduct' it, which was an Executive function." With that comment last in mind, the delegates approved the Madison-Gerry amendment with eight states in favor and one against.

The final understanding of the delegates remains controversial to this day -- perhaps because the amendment was made at the equivalent of 5:00 P.M. on a Friday.
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Yet, their changes to the war power made two things clear. First, the power to "declare" war was a narrower subset of the broader power to "make" war. Second, the changes to the war power followed the general trend near the end of the Convention to transfer authority to the President.

Congress's power to declare war was not the only aspect of the war power. Declarations of war often followed the outbreak of combat and had the legal function of defining the status of hostiles and neutrals.
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The Declaration of Independence would have been the legal model uppermost in the delegates' minds. Issued more than a year after fighting had broken out with the British, the Declaration articulated the grievances against Great Britain, the grounds for the resort to armed hostilities, and the remedies that would bring the war to an end. When lawyers referred to the power to begin or to commence war, they used language broader than "declare." The Articles of Confederation had provided that Congress enjoyed "the sole and exclusive right and power of determining on peace and war," and South Carolina's constitution conferred the power to "commence" war upon its legislature.
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Article I, Section 10 of the Constitution declares that "No State shall, without the Consent of Congress... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." This is just the language and the procedure favored by modern scholars who believe that Congress ought to have the final say on war. But the Framers turned from that language and divided the war powers between the President and Congress. Congress has a powerful influence over war through funding, but giving Congress the power to "make" war would encroach on authority best shared with the executive.

The Convention soon followed by ending the Senate's monopoly on treaties. Some delegates, such as Charles Pinckney, believed that the Senate should "manage foreign affairs" and perform a variety of executive functions, but on August 23 the Convention gave the President the right to make treaties, subject to the Senate's approval. Madison observed that "the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties."
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Rakove has laid out a strong case that these "other obvious reasons" included a concern about the Senate's unrepresentative nature and a new respect for the President's democratic accountability.
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Although most commentators describe the treaty power as shared between the President and Senate, the Constitution weights matters heavily in favor of the former. The Constitution locates the treaty power in Article II, where presidential powers reside, not among Congress's powers in Article I. It gives the President the "Power to make Treaties," conditioned on "the advice and consent" of the Senate. The President decides whether to start negotiations, negotiates terms, and even after the Senate consents, determines whether to conclude the treaty. Combined with the authority to receive ambassadors and his general executive power, the President's role gives the executive branch the effective ability to control the setting of foreign policy and diplomatic relations with other nations.
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Not until the very end did the Convention forge the crucial democratic tie between the President and the American people. On the last day of August, the delegates referred undecided questions to a committee of unfinished business, composed of one delegate from each state. Four days later, this committee returned with a proposal for the Electoral College, which was approved two days later. It represented a compromise among supporters of state involvement, popular election, and congressional choice, but its shift toward selection by the people is unmistakable. Supporters of an independent executive, such as Wilson, Madison, and Morris, had fought against any system that gave the states or Congress control over the selection of the President.
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At the same time, it is undeniable that many of the Philadelphia delegates were suspicious of undiluted direct democracy, which had caused the problems in the states that had brought them together. They wanted a virtuous President who would pursue the national interest, even if that meant sometimes resisting the temporary passions of the people. The rise of political parties to filter and then support a few candidates had not yet occurred. Parties would have been associated in these delegates' minds with "factions" subversive of the public good.

The Electoral College was the Framers' answer to the threat of legislative supremacy and demagogic popular leadership. State legislatures would set the process for choosing electors, which would amount to the number of the state's Representatives and Senators. These electors would then vote for two candidates, one of whom had to hail from another state, to reduce the influence of home-state favoritism and regionalism. Electors would meet in their states and send their votes to the President of the Senate, who would open them and count them in Congress. The winner would become President, and the runner-up would become Vice President. If no one received a majority, members of the House would choose the President from the top five vote-getters, with each state delegation casting a single vote.

Hamilton and Madison believed that the Electoral College would achieve both of their goals by enlarging the sphere to select the President. Demagogues would be less likely to reach the nation's highest office if voted upon by a national electorate. As Hamilton wrote in
Federalist 68:
"[I]t will require other talents, and a different kind of merit to establish him in the esteem and confidence of the whole union, or so considerable a portion of it as would be necessary to make him a successful candidate" for the White House.
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Gouverneur Morris declared in the Convention that an "election by the people at large throughout so great an extent of country could not be influenced by those little combinations and momentary lies which often decide popular elections within a narrow sphere."
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Or as Hamilton explained: "Talents for low intrigue, and the little acts of popularity may alone suffice to elevate a man to the first honors in a single state."
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But a nationwide election would prevent the worst from rising high. Morris had predicted earlier in the Convention that the people "will never fail to prefer some man of distinguished character or services," or of "continental reputation."
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