Tough Times for the President: Political Adversity and the Sour ...

bounds of the chief executive’s constitutional authority in order to promote national security, protect the institutional interests of the presidency, or enhance the president’s ability to influence policy.³⁰ Over time, presidential power has been expanded through the accretion of precedents set by chief executives acting in this fashion, the cumulative effect of which is to constitute a kind of “common law” of presidential conduct. This “common law” includes unilateral actions that were acquiesced to by Congress, the courts, and/or the public. Examples of venture constitutionalism include Washington’s Neutrality Proclamation, the Louisiana Purchase, Lincoln’s conduct of the Civil War, Nixon’s invasion of Cambodia, the creation and execution of regulatory review by the Office of Management and Budget, the internment of Japanese Americans during World War II, Clinton’s proclamation setting aside millions of acres of wilderness as federally protected land, the creation of military tribunals to try suspects captured in the war on terror, the Bush administration’s warrantless wiretap surveillance program, and the Obama administration’s expansive interpretations of the “state secrets” privilege. Venture constitutionalism is what happens when the chief executive seeks to live up to the responsibilities of the highest office but encounters the constraints on executive power imposed by the American political system. (We will have more to say about venture constitutionalism and its role in the expansion of presidential power in chapter 6.)

Third, presidents resort to unilateralism when they believe that bargaining and persuasion will take too long or are likely to fail. This determination may come from the nature of the situation, the political environment, or the president’s political resources. Bill Clinton could have asked Congress to set aside the Grand Staircase–Escalante National Monument, additional parts of the Florida Everglades, and Idaho’s Craters of the Moon National Monument for special protection, but he did not expect the Republican-controlled legislature to accede to his request. So he acted unilaterally in 2000, believing his action to be vital to protecting these lands. Likewise, Jefferson thought it vital to the nation’s interest to secure the Louisiana Territory (if only for Mardi Gras) and so overcame