All too often, works of political theory deal with esoteric general questions or navel-gazing textual analysis, far removed from the messiness, hard choices, and sober grandeur of real political life. Refreshingly, neither of these texts suffers from this limitation. Questions of executive power brought to the surface by the George W. Bush administration in the wake of the 9/11 attacks call for serious engagement by theorists. Simply put, how does the executive respond to an unforeseen situation where law is silent, contradictory, or clearly contrary to public good? Both of these works are written in the shadow of NSA wiretaps, Guantanamo Bay detentions, and “enhanced interrogation techniques,” as well as the controversial justification of the same in the works of John Yoo.
While each book deserves its own reading, they are also complimentary, with the more recent text directly engaging the interpretation of the first. In Thomas Jefferson and Executive Power, Jeremy D. Bailey offers a detailed and revisionist examination of Thomas Jefferson, perhaps American's most notable theorist-practitioner on the subject of executive power. Benjamin A. Kleinerman's The Discretionary President, likewise considers Jefferson's approach, alongside chapters on Alexander Hamilton and James Madison, before focusing on the approach he prefers, that of Abraham Lincoln.
Bailey's tightly written text seeks to redirect the consensus reading of Jefferson as “an enemy of executive power” (p. 4) in principle who was hypocritically willing to use it in practice, a view that originated in Henry Adams' classic history of the Jefferson administrations. Bailey is far more sympathetic to Jefferson and sees much more internal consistency than does the Adams-inspired interpretive tradition. Bailey reminds his readers that, as he assumed the Presidency, “Jefferson had devoted over two decades to reconciling the theoretical requirements of constitutional democracy with the practical realities of political life” (p. 6). Bailey mediates Jefferson's (frequent) use of Presidential prerogative with his belief in, and practice of, submitting these “acts of … discretion to popular judgment” (p. 18). For Bailey's Jefferson, presidential actions in realms where the law is unclear must be explained to the electorate, both in notable particulars and at regular intervals.
According to Bailey, this rhetorical justification of executive action is the motivation for Jefferson's transformation of the inaugural address from a little noticed footnote to the oath of office (as used by our first two Presidents) to the central statement of political intent it has since become. By “stating how he would be president” (p. 140), Jefferson laid out the principles that would guide his future actions, subjecting them to democratic debate and approval. Bailey provides a very sophisticated analysis that ties together the various aspects of Jeffersonian policy into a coherent whole, culminating in a particularly novel examination of Jefferson's support of the Twelfth Amendment (altering the mechanism by which the Electoral College selects the President and Vice President). Bailey's Jefferson is concerned less with his own political interests (though these certainly factored in) than with the Electoral College's capacity to produce a clear popular mandate for the President. With this popular mandate, the President is then positioned to make his direct appeals to the democratic public, conducting a rhetorical referendum on his exercise of power.
While favorably inclined toward Jefferson, Bailey is not a blind advocate. As he notes, one of Jefferson's great failings was not to offer a defense—or explanation—of his constitutionally controversial Louisiana Purchase of 1802 in his Second Inaugural in 1805. Bailey indirectly concedes, but does not state, that this lacuna makes Henry Adams' charge of inconsistency far more plausible. If Bailey is correct in asserting that Jefferson believed that responding to democratic will requires decisive executive action, the lack of a specific textual articulation is a disappointment for those trying to ground robust executive power in a democratic framework and tradition. Unfortunately, even Bailey must admit that “Jefferson never declared this principle in public” (p. 269).
Kleinerman offers a different theoretical justification of executive power, one that requires not democratic approval, but instead a popular affirmation of legitimacy. Or, in Kleinerman's clear phrasing, “[the people] should be asked to judge whether [the act] was constitutional, not whether they liked it” (p. 25).
Kleinerman first assesses three alternative theories of executive power—those of Hamilton, Madison, and Jefferson—before settling on the constitutionalism of Lincoln. Hamilton famously endorses strong executive power, but Kleinerman maintains that he dangerously champions an executive power that “is limitless in its scope and unsusceptible of a structural solution” (pp. 101–102). Hamiltonian executive power derives from the presidential office, rather from than from rhetoric, and authorizes any means seen to be necessary by the executive. In contrast, Madison's theory of checks and balances creates an executive that is only responsible for enforcing congressionally enacted laws. In the case of emergency, Madison believes it to be incumbent upon the legislature to authorize necessary action, severely limiting the discretionary power of the executive in the short-term, while perhaps creating dangerous precedents now codified in legislation, rather than just temporary executive action, for the future.
Kleinerman next addresses Jefferson. Fully aware of Bailey's reading, Kleinerman finds Jefferson's interpretation of executive power to be deficient since it is not tied to a constitutional order. Properly recognizing that Jefferson was one of the least respectful of his generation when it came to constitutional form as a check on popular sovereignty, Kleinerman suspects Jefferson of being less than concerned about the impact of unbridled executive power on the established constitutional order. Kleinerman is deeply dubious of a standard that subjects questionable executive acts only to popular approval when the public may not be cognizant of long-term constitutional arrangements and the possible impact of an executive decision on said arrangements. In short, Kleinerman sees Jefferson's executive as an agent of Jefferson's preferred perpetual revolution.
Kleinerman concludes with his interpretation of Abraham Lincoln. Kleinerman's Lincoln lays down three principles for the use of executive prerogative, extrapolating from strict constitutional powers. First, extra-constitutional action can only take place when the republic itself is at risk. Second, any variation from strict constitutional powers must be seen as an exceptional variation, and not “business as usual.” Finally, variations cannot be tolerated for personal interest or gain. Any act not required in the line of duty must be expressly forbidden.
These are, of course, quite legitimate, even reassuring principles. However, the primacy of maintaining a fixed constitutional order is assumed, and not demonstrated, by Kleinerman. Who is to say that an executive may not need to bring about a development of doctrine, by which the constitutional order is stretched? Arguably, the greatest Presidents do exactly that, leaving an expanded menu of options for their successor. To bring Bailey back in, there is a danger that, as Jefferson believed, “citizens will conclude that if it is constitutional, it must be in the public good” (p. 266).
Taken in tandem, these books provide a magnificent overview of the options regarding executive power. While both authors are generally supportive of a broad understanding of executive prerogative, they offer very different justifications (though Bailey retains at least a nominal disclaimer that he is articulating Jefferson's case, rather than advocating it). Should executive power be checked by popular approval, culminating in elections, and should the President encouraged to explain and justify his actions as being in the public good? Or, should the lodestone be a constitutional one, with the executive laying out the results of Kleinerman's Lincoln-derived tripartite test? By clearly articulating these reality-based alternatives that provide real options for statesmen, each author has done a service to the discipline. These are not exercises in “literary politics.”
To reiterate, each of these authors is generally supportive of strong executive power. A reader will look in vain in either work for a serious challenge to the concept of a strong, largely unfettered executive. Readers will be similarly unsuccessful in finding a concern about issues of civil liberties, potentially violated by an executive that might then be explained away with a rhetorical flourish and endorsed by a tyrannical majority. These are explorations of how executive power can be used without large-scale abuse, not how such power can be seriously constrained.
Missing from both books is an examination of larger executive-branch dynamics. What are the responsibilities of various appointed—and congressionally confirmed—cabinet officials with respect to constitutional interpretation? What of the personal staff of the President, not subject to confirmation (one thinks particularly of the National Security Advisor)? What responsibilities do these actors carry when bringing options through the various Committees to the National Security Council? The presidency, though obviously personified in the officeholder, is an institution in and of itself. By focusing solely on the one elected official, both Bailey and Kleinerman oversimplify the decision-making process within the White House. The mediating structures which contour presidential actions are absent from both treatments.
But, in the end, each author has acquitted himself very well. Both of the works under review are admirable efforts to make political theory speak to a genuine problem, and each shines light on the political dilemma in a unique way. Though one may disagree with the interpretive tradition and/or conclusions of either author, both authors perform well within their chosen structures. While there is clearly much more to be said on the subject of executive power during unforeseen crises, future writers will have to contend with and engage the accounts laid out in these two fine works.
