Executive Power and the Discipline of History

A Review of "Crisis and Command: The History of Executive Power from George Washington to George W. Bush," "War by Other Means: An Insider's Account of the War on Terror," and "The Powers of War and Peace: The Constitution and Foreign Affairs," all by John Yoo

For all the angst about the proper role of history in constitutional analysis, custom and tradition have long played a central role in foreign affairs and national security law. The standard explanation for this is straightforward. For starters, the relevant constitutional text is cryptic, elusive, and in some cases entirely absent. Nor has judicial elaboration resolved the textual lacunae. Court interventions have been relatively infrequent, forcing analysts to return repeatedly to the same handful of cases, few of which are particularly clear in their own right. In the last two decades, these problems have been further compounded by a splintering of scholarly consensus about foundational questions in these areas.

History therefore looms large when we confront constitutional questions of war, peace, diplomacy, and security. But there is a twist. The usual debates about constitutional history focus on the challenges of originalism proper: first, of discerning how a particular provision was likely understood when enacted; next, of meaningfully applying that understanding to modern questions; and, finally, of justifying the imposition of that constraint on the living citizens of a democratic republic. National security law and foreign affairs law, by contrast, have a more pronounced concern for post-enactment history as a source of constitutional meaning. This is partly because of the paucity of direct evidence about original meanings in this area. But it is also rooted in something deeper: what might be described as the felt need to ground our resolution of such high-stakes questions in the organically expressed evolution of American norms over time. 

It is against this background that the post–September 11 work of John Yoo must be assessed. In what he calls a “trilogy” of books written since leaving the Office of Legal Counsel (OLC) in 2003, Yoo has made the case that President George W. Bush’s counterterrorism efforts were well grounded in both law and policy (III, p vii). The Powers of War and Peace draws on a series of his own law review articles—written well before Yoo joined the federal government—to read British- and Founding-era history as support for radical presidential preeminence in warmaking and foreign affairs. War by Other Means, published after Yoo returned to academia, is essentially an extended white paper defending a series of particular counterterrorism policies, interspersed with first-person descriptions of his time at the Department of Justice. Crisis and Command is the capstone of the sequence. Styled as a history of executive power in America, it weaves threads from the first two books into a wide-ranging historical narrative meant to serve as an intellectual foundation for the Bush administration’s view of executive power. While the books are not analytically sequential and differ substantially in both tone and approach, their collective coherence becomes apparent with the appearance of the final volume. They touch frequently on questions about individual liberties in wartime, but their signature concern—and the sole focus of the third book—is the separation of powers within the federal government. It is therefore on that problem that this Review will focus.