Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror

8 - Nixon, Watergate, and a Bid for Unbridled Presidential Power

117 8 nixon, wa­ ter­ gate, and a bid for un­ bri­ dled pres­ i­ den­ tial power In the Young­ stown case, de­ cided in 1952, Jus­ tice ­ Jackson’s con- ­ cur­ ring opin­ ion made clear that there were lim­ its on pres­ i­ den­ tial power, even in war­ time, and es­ pe­ cially when ­ turned in­ ward (i.e., when ap­ plied ­ within the ­ United ­ States). He was skep­ ti­ cal of rec­ og­ niz­ ing any emer­ gency pres­ i­ den­ tial power that had not been au­ thor­ ized by Con­ gress. De­ spite ­ Jackson’s cau­ tion­ ary note, pres­ i­ den­ tial power ex­ panded in the 1950s and 1960s in the con­ text of a seem­ ingly un­ end­ ing cri­ sis—the strug­ gle­ against com­ mu­ nism. Pres­ i­ dent Tru­ man sent ­ troops to Korea with­ out con­ gres­ sional ap­ proval. Pres­ i­ dent Lyn­ don John­ son ­ gained a con­ gres­ sional res­ o­ lu­ tion to sup­ port mil­ i­ tary es­ ca­ la­ tion in Viet­ nam, but that res­ o­ lu­ tion was ­ gained under false pre­ tenses.1 Con­ gress fre­ quently de­ ferred to pres­ i­ den­ tial de­ ci­ sions made ­ against the back­ drop of the Cold War with the So­ viet Union.2­ Johnson’s suc­ ces­ sor, Rich­ ard Nixon, ­ brought the the­ ory and prac­ tice of emer­ gency pres­ i­ den­ tial power to new ­ heights. Ul­ ti­ mately, he ad­ vanced a def­i­ ni­ tion of power that threat­ ened to upend the con­ sti­ tu­ tional struc­ ture by plac­ ing the pres­ i­ dent be­ yond chal­ lenge or re­ straint. In place of the con­ sti­ tu­ tional ­ system of ­ checks and bal­ ances, there would sim­ ply be Nixon him­ self, a pres­ i­ den­ tial cen­ ter of power that could not be ques­ tioned. Nixon im­ a­ gined a con­ sti­ tu­ tional land­ scape where he, as pres­ i­ dent, rep­ re­ sented the pop­ u­ lar will. His view of pres­ i­ den­ tial power ­ rested on the “im­ plicit be­ lief that op­ po­ si­ tion to the pres­ i­ dent was ­ anti-democratic and the pre­ serve of an un­ rep­ re­ sen­ ta­ tive elite.”3 In this frame­ work, his po­ lit­ i­ cal an­ tag­ o­ nists did not sim­ ply op­ pose him—they op­ posed the pop­ u­ lar will it­ self. Where Al­ ex­ an­ der Ham­ il­ ton de­ fended the idea of ju­ di­ cial re­ view as a way for­ judges to vin­ di­ cate the pop­ u­ lar will, as ex­ pressed in the Con­ sti­ tu­ tion, 118 nixon, watergate, and a bid for unbridled presidential power Nixon put him­ self in place of the Con­ sti­ tu­ tion. In ­ Nixon’s view, his ri­ vals and crit­ ics were not ­ merely op­ po­ nents but en­ e­ mies who threat­ ened ­ selfgovernment it­ self by op­ pos­ ing Nixon, the one true rep­ re­ sen­ ta­ tive of the peo­ ple.4 Armed with this world­ view, the Nixon ad­ min­ is­ tra­ tion not sur­ pris­ ingly pro­ duced an “en­ e­ mies list”—com­ posed not of enemy ­ agents bent on at­ tack­ ing the ­ United ­ States but of jour­ nal­ ists, ac­ tors, union lead­ ers, and mem­ bers of Con­ gress who were seen as po­ lit­ i­ cal op­ po­ nents of the pres­ i­ dent.5 The ­ administration’s ap­ proach re­ fined the the­ ory that ex­ pan­ sive pres­ i­ den­ tial power was jus­ tified if used to pro­ tect the na­ tion and inter­ preted it to mean that es­ sen­ tially ab­ so­ lute pres­ i­ den­ tial power was jus­ tified in pro­ tect­ ing the pres­ i­ dent ­ against po­ lit­ i­ cal op­ po­ nents. Nixon White House coun­ sel John Dean cir­ cu­ lated a memo en­ ti­ tled “On Screw­ ing Our Po­ lit­ i­ cal En­ e­ mies,” which “ad­ dressed the mat­ ter of how we can use the avail­ able fed­ eral ma­ chin­ ery to screw our po­ lit­ i­ cal op­ po­ nents.” To­ ward this end, Nixon or­ dered that wire­ taps be ­ placed on the ­ phones of his “en­ e­ mies” and that at­ tempts be made to...