Formal Power And Prerogative: The Presidency And National Security
CSC 1988
SUBJECT AREA National Security
FORMAL POWER AND PREROGATIVE: THE PRESIDENCY AND NATIONAL
SECURITY
By
Major Fergus Paul Briggs
United States Marine Corps Reserve
9 May 1988
TABLE OF CONTENTS
Page
Chapter 1 Introduction: "The Sharing of Power......... 1
Chapter 2 The Presidential Roots: Colonial,
Early National, and Constitutional
Overviews.................................... 23
Chapter 3 Presidential Authority: Definition
by Precedent................................. 51
Chapter 4 Congressional Reform, Pluralism,
Oversight of the President, and National
Security..................................... 83
Chapter 5 The Elite Divergence, The Mass Public,
and Presidential Leadership in
National Security........................... 105
Chapter 6 Summary..................................... 123
Notes ............................................ 126
Bibliography ............................................ 137
Chapter 1
INTRODUCTION
THE SHARING OF POWER: CHANGING RELATIONSHIPS
Who makes national security policy is not an idle
question for academic debate. How we answer that
question in practice determines the American capacity
to act in the world. That, in turn, affects not only
our ability to ensure the survival and security of the
United States, but also our capacity to affect the
future of world events.1
Former U.S. National Security Advisor Zbigniew
Brezezinski's remarks before the Federalist Society
"Symposium on Foreign Affairs and the Constitution" on 6
November 1987 evoke the fundamental topic of this paper. To
what degree do the executive and legislative branches share
the formulation and execution of U.S. national security
objectives; and to what means is the president as chief
executive and commander-in-chief limited as America's
primary agent of responsibility for the defense of the
republic and its allies? Since the Spanish-American War,
especially in the era following The Great Depression and
World War II, the executive branch, personified in the
president, is the focal point of national politics both
domestic and foreign. Correspondingly, within the
international context, the American post-World War II global
role magnifies executive branch responsibility in the
presidential roles of chief diplomat and commander in chief.
Following VJ Day in 1945 the increased peacetime
presidential authority underlying the U.S. Status as a
superpower was publicly accepted as a necessity until the
Vietnam War when the president's ability to set a coherent
course for national security to complement the U.S. role was
challenged by legislative limitations and by public
questioning of America's contemporary great power
responsibilities.
The challenges to presidential foreign policy power are
grounded within the pluralistic principles of U.S.
government with its separation of powers, within the
inherent constitutional ambiguities regarding the boundaries
between specific executive and legislative powers, and
within the interbranch sharing of certain powers such as the
warpower and the treaty power. A reading of the U.S.
Constitution shows a blending of foreign policy and war
making powers between the two branches. Counterposed to the
specific presidential powers of treaty making, commander-in-
chief of the armed forces, and all the powers of national
sovereignty not specified as congressional, the legislative
branch has the war declaration power, treaty ratification
power in the Senate, and the power of the purse originating
in the House of Representatives, which is ancillary yet
fundamental to policy implementation. The diffusion of
powers and policy functions contributes an adverse political
dimension to the pervading interbranch Constitutional
struggle over foreign policy. How this dimension is viewed
depends upon the point of view: Principled advocates of
strong presidential authority, such as Dr Brzezinski and
others contend the scales have shifted in the direction of
the legislative branch in the past fifteen years.2
Principled opponents of a strong presidency in foreign
affairs suggest that since 1950 "revisionist contentions"
concerning the power of the presidency in foreign affairs
wrongfully justify presidential power in terms of the
Constitution within the following categories: prerogative
powers, executive power, the commander-in-chief power,
foreign affairs power, and the precedents of preceding
presidential office holders.3 With the Watergate scandal of
President Richard Nixon and the American failure in Vietnam
as catalysts for increased congressional oversight of the
president, the traditionally fluid relationship between
branches experienced during the Cold War period is
increasingly adversarial, polarized, and characterized by
heated deliberation and sometimes political paralysis on the
major foreign policy questions of the day.
Advocates of presidential primacy in national security
policy suggest the legislative branch has overstepped its
proper constitutional role. William Bradford Reynolds, U.S.
Assistant Attorney General Civil Rights Division, complains
of congressional encroachment on presidential foreign policy
turf:
.... in the field of foreign relations, we have seen
since the Vietnam experience an increasingly assertive
congress, intruding broadly into the execution of
American foreign affairs through improper use of the
appropriations power, its determination to declare war,
and its advice and consent to treaties, among other
powers. But the recent story is less one of genial
constitutional power sharing than of determined
encroachment upon the powers of the executive in the
international field - encroachment that has taken its
toll on American efficacy and prestige abroad and the
bipartisan spirit that long attended foreign policy
matters at home.
Whether the bipartisan consensus of the Cold War
mentioned by Brad Reynolds was an historical aberration or
not, the constitutional framers understood the transcendent
importance of national unity in foreign relations as
underscored by James Madison's admonition that if we are to
be one nation in any respect, it ought to be in respect to
other nations. Unity and decisiveness in the international
realm dictates both a strong national government and the
vesting of executive authority in a single President.4
Clearly, World War II propelled the United States to
its position as senior partner in freeworld coalition
defense and, along with it, elevated the president to a more
dominant role in warmaking. The centrality of the president
as a commander is conconstitutionally mandated and made
possible by the speed and centralization of modern
communications means available for presidential control of
the U.S nuclear deterrent defense. Presidential command
authority, public expectation, and command and control
capability combined encourage involvement of the president
in command decisions formerly made at lower levels. Martin
Van Creveld shows that president between 1946 and 1975 was
involved in 144 of 200 crises, though the actual need for
his services occured in only 44 of those instances.5 The
Constitutional questions raised by these presidential
command responsibilities in global defense are increasingly
studied. But the framers' intent is sufficiently ambiguous
to cover all contingencies, resulting in differing
interpretations and biases among scholars concerning whether
the executive or legislature is supreme in warmaking and
foreign policy.
Presidential advocates contend the commander-in-chief
powers and the framers' substitution of the words "declare
war" instead of "make war" in the Article I congressional
powers illustrates a broad intent within the Constitution
for vigorous executive power in this area. Historical
precedent further defines this intent. By 1967, presidents
had unilaterally sent troops or arms abroad 132 times
compared to five times with congressional declaration of war
and 62 times with congressional approval short of war.
Recent presidencies show a continuation of the command
decision tradition with the Mayaguez rescue, the aborted
hostage rescue mission to Iran, the liberation of Grenada,
the air raid on Libya, the sale or provision of arms to
Iran, Nicaraugua, and Afghanistan, and the current naval
escort operations in the Persian Gulf. Also, when compared
to only 1,000 Senatorially ratified formal treaties, the
several thousand executive agreements with foreign
governments during the nation's history further demonstrate
the breadth of presidential discretion or prerogative in
national security affairs.6
One of the lessons of Vietnam is that sweeping
presidential authority cannot routinely withstand strong
public opposition. As President Kennedy stated: "The
President is rightly described as a man of extraordinary
powers. Yet it is also true he must exercise those powers
under extraordinary limitations". The president is powerful
when the citizenry allows him to be, and the public
consensus in the modern era is quioxtic. Dr Brzezinski
assesses the contemporary dearth of public consensus in
national security policy and the political dimension of the
interbranch competition between president and congress for
primacy in foreign affairs as resulting from five factors:
1. The collapse of bipartisanshipin the second half of
the forty year period of U.S. global power.
Bipartisanship meant both branches shared common
assumptions in contrast to the alternative partisan
conceptions of foreign policy in the post Vietnam era
reflecting differing views about American values, about
exercise of power, about threats to national security,
and about national priorities.
2. Americans tend to confuse strategy with tactics,
failing to define strategic priorities, failing to
differentiate central from peripheral fronts in the
struggle against Soviet hegemony, and allowing tactics
to dominate strategic considerations in both the
executive and legislative branches of government.
3. Inadequate consultation occurs between executive and
legislature in the area of strategic thought. The
National Security Council could promote a constructive
dialogue, but is institutionalized as a presidential
advisory group which does not formally appear before
congress and incurs incriminations from a turf
conscious State Department if informal congressional
liaisons occur. Unfortunately, the State Department's
diplomatic role is but one component of foreign policy
which by necessity also includes military power,
intelligence, covert activity, financial power, and
threat assessment; areas of clearly deficient expertise
at State.
4. The nature of modern warfare has compressed the time
available for critical decision making. The prospect
of nuclear conflict exacerbates the executive
relationship with congress and further concentrates
command and control in the hands of the President. The
time for deliberation in a larger forum is often
absent.
5. The need for covert operations and the requirement
for secrecy in these operations creates a security
dilemma when consultation between executive and
legislature is undertaken. Leaks jeopardize
operational success and destroy the cooperation
necessary to integrate covert activity into the
national strategy.7
One political outcome of the post Vietnam legislative-
executive struggle, The Warpowers Act of 1973, serves as a
symbol for a host of legislation in the 1970's limiting,
overseeing, and proscribing the boundaries of presidential
authority in national security policy. The Warpowers Act
raises genuine political problems not properly solved by
legislation.8 Mr. Reynolds, reflecting the Reagan
Administration point of view, feels the law is a circuitous
assertion of congressional authority and is a highly
questionable statutory reallocation of fundamental executive
discretion from the standpoint of the Constitution.9 The
"flipside" of the Warpowers Act is its explicit recognition
of presidential authority to initiate hostilities, a
concession which those who read the Constitution strictly
would never warrant.10
President Ford, the first U.S. chief executive forced
to operate within the War Powers Act provisions, and whose
views have been echoed by all subsequent presidents,
believes the law unconstitutional, impractical, and a
constraint on the President's effort to acheive or maintain
peace.11 His strongest objection is the requirement to
withdraw troops from hostilities after 90 days if Congress
simply fails to approve the deployment.
"If the Congress is mired in indecision or inaction or
lacks courage or guts - if you want to call it that -
to do anything, it can do nothing and acheives the same
result as if they had ordered it by majority vote in
both the House and the Senate."12
The Supreme Court decision in Immigration and Naturalization
Service vs Chadha rules legislative vetos unconstitutional,
and will in all probability, overule the automatic 90 day
troop withdrawal provision, should the Warpowers Act ever
face a Supreme Court test.
Ford, a congressman from Michigan before becoming
president after the resignations of Vice President Spiro
Agnew and President Richard Nixon in 1974, recounts alot of
difficulty in locating congressional leaders for
consultation in times of crisis. The inadequacy of
deliberative bodies such as legislatures to make command
decisions is particularly acute in situations where no clear
public support mobilizes toward objectives and requirements.
To cite a current example, despite U.S. naval presence
there since 1949, during the Persian (Arabian) Gulf
situation of 1987-88, congress debated at length whether
naval escort operations of American flagged Kuwaiti tankers
was a proper role for U.S. military forces. Refusing to
accept presidential initiative and autonomy in command
decisions, congress was unable to legislate quickly enough
to control the rapidly evolving and dangerous situation.
The naval role was brought to public attention in the Fall
of 1987 by an accidental Iraqi missile bombardment of the
destroyer U.S.S. Stark. Split on the wisdom of invoking the
Warpowers Act, the congress voted instead on two bills
neither giving clear policy direction, but each
incorporating some kind of presidential reporting
requirement as an oversight mechanism. Secretary of
Defense, Casper Weinberger recounted his conversations with
three U.S. Senator concerning these two bills:
Senator Bumpers states, "The resolution is carefully
designed to do nothing." Senator Weiker says "Its
better to do something than nothing. Senator Pryor
says, "I don't know what we're doing." This is not a
signal of resolve.!13
The major shortcoming of congress as a deliberative body
competing with the president in decisions concerning the
employment of forward deployed U.S. forces is best put by
president Ford: "There can be only one Commander in
Chief".14
As mentioned, although the Warpowers Resolution enjoys
the most notoriety, it is only one of several congressional
actions aimed at reigning in presidential national security
prerogative in the wake of Watergate and Vietnam.
In highlighting some of the major legislation, it is
essential to briefly review the dynamic relationship between
the legislative and executive branches. A more extensive
treatment follows in chapter 3. The nature of American
interbranch relations shifted from one characterized by
congressional dominance to one characterized by presidential
dominance with the global extension of the interests after
the Spanish American War in 1898. The development of a
public presidency commencing with Theodore Roosevelt
initiated the routine practice of modern presidents of
circumventing congress by appealing to popular support and
pressuring legislative approval of, or acquiescence to,
presidential initiatives. Teddy Roosevelt's machinations
behind the revolution seizing the Panama Canal Zone from
Columbia in 1903 illustrate the point.15 When viewed from
the perspective of 20th century presidential government, the
legislation of the 1970's, like the Senate's revocation of
the Versailles treaty after World War I, seems a
congressional attempt at turning back the clock to the
nineteenth century legislative/executive power ratio, when
iimited America foreign policy interests allowed a stronger
congressional role and a more benign presidency
Critics of wide ranging presidential discretion often
overlook the great amount of authority ceded to the
executive branch by congressional statute because of
inadequecies in the legislative process. These legislative
cessions were of vast scope especially during wartime and
during the New Deal programs of the Great Depression.
Conversely, congressional assertion of power in the 1970's
and 80's is arguably the result of congressionally perceived
presidential abuses or excesses.
From the time when President Jefferson transferred
funding authorizations for frigates to purchase coastal
vessels, president have maintained the executive power to
impound transfer, and reprogram funds. Because of repeated
congressional failures to develop an effective centralized
budgetary process, the 1921 Budgeting and Accounting Act
surrendered to the president the express legislative power
of budget formulation through the Bureau of the budget and a
presidentially appointed Director of the Budget. Later in
1933 in an executive order following the passage of the
Emergency Recovery Act, president Franklin Roosevelt moved
the director from Treasury to the executive office as part
of the organizational reforms of the Brownlow Commission.
He also further expanded the function of the bureau to one
of legislative clearance of the budget. In 1970, President
Nixon reorganized the bureau into the Office of Management
and Budget, further centralizing executive control of the
federal pursestrings, and to expand the role of the agency
in budget preparation and legislative clearance, he added
program assessment.16
The unraveling of presidential power in budgetary
concerns began when Nixon's command prerogative in the
unpopular Vietnam conflict, and the implicit belief of
presidents that congressional budget passage grants
legislative sanction of presidential actions, led congress
to reclaim a stronger budgetary role. Specifically,
congress opposed Nixon's transfer of 255 million in economic
and military assistance to Cambodia after the 1970 U.S.
incursion into that country to destroy North Vietnamese Army
sanctuaries.17 Later, as a result of Nixon's impoundment
of ten billion dollars in Office of Economic Opportunity,
funds and six billion dollars in water pollution control
funds, enactment of the Budget Reform and Impoundment
Control Act of 1974 placed procedural restrictions upon the
president's fiscal discretion. Among the provisions is a
legislative veto of transfers or impoundments through joint
resolution. Also, to check the president's Office of
Management and Budget and assume stronger policy oversight,
the Budget Reform and Impoundment Control Act created the
Congressional Budget Office and congressional budget
commitees superimposed upon the existing appropriations
committees and taxation commitees in both houses. This
measure restored stronger legislative influence by
reestablishing congressional budgetary competition with the
president, but significantly slowed the budget cycle through
the lengthy deliberative process engendered.
Habitually, beginning each fiscal year, congress runs
the nation on continuing resolutions while engineering a
compromise budget bill acceptable to a majority coalition.18
To underscore the inefficiency of the appropriations process
and lobby for a presidential line item veto, President
Reagan mocked congress in his 1988 State of the Union
Address by displaying the heavy and cumbersome FY 88
Appropriations Bill and the subsequent compromise bill while
admonishing members to expedite the process in future
budgets. Additionally, though more procedural than
substantive, a 1974 amendment to the Budget and Accounting
Act of 1921 requires Senate confirmation of the powerful
Director of The Office of Management and Budget.19
Nothing has the universal effect on all policy areas
like the federal budget and the fiscal policy it
represents.20 The presidency in the 1970's lost its
monopoly on the control of budgetary and program information
along with the power and flexibility that such a monopoly
carries with it.
Even before the reform legislation, the power of
puree was a "long suit" for congress in influencing policy.
Using their appropriation power during the Vietnam conflict,
congressional constraints on the president included measures
to limit widening the war to neighboring countries, despite
the problem of persistant attacks by the North Vietnamese
Army from neutral sanctuaries in Laos, Cambodia, and
Thailand. In 1970 the Defense Appropriations Act prohibited
financing the introduction of U.S. ground combat troops into
Laos and Thailand.21 Using his command prerogative,
President Nixon continued to bomb Laos and accomodated the
troop restriction by substituting mercenary and CIA equipped
paramilitary forces.22 In 1971, in response to Nixon's
transfer of foreign assistance funds to prosecute operations
in Cambodia previously mentioned, the Cooper-Church
Amendment to the supplemental appropriation to the Foreign
Assistance Act forbade financing of U.S. ground combat
troops, or providing U.S. advisors to, or for, the Cambodian
military forces in Cambodia. Circumventing the intent if
not the letter of this provision, the Nixon administration
tasked military equipment delivery teams to advise the
Cambodian field commanders.
In the face of stiff congressional opposition Nixon
also continued bombing of the sanctuaries in Laos and
Cambodia. Attempts by antiwar legislators to stop the
bombing, such as the Gravel Amendment to a defense
procurement bill, and the Proxmire Amendment to a defense
appropriations bill were defeated until after the Paris
Peace Accords between the United States and North Vietnam
had been signed and American combat involvement in Indochina
had ended.23
In total, Congress took 113 role call or teller votes
between 1966 and July 1973 (94 occured during the Nixon
years alone) upon legislation to limit or end U.S. combat in
Indochina. Defeated were the most drastic "end the war"
amendments such as the Hatfield-McGovern Amendment to the
Military Procurement Act of 1971, proposing to cut funding
for all military operations, save the orderly withdrawal of
U.S. troops. Using a different approach, the Mansfield
amendment to the Defense Procurement Authorization Act of
1972 dictated in a broad statement of policy the termination
of all military operations in Indochina, and the withdrawal
of all U.S. military forces at the earliest possible date.
Though the Mansfield Amendment never faced a Supreme Court
test, Nixon viewed the amendment an unconstitutional
exercise against the commander-in-chief power because it set
policy for forces in the field.
Nixon refused to announce a withdrawal date or to
negotiate under the congressional procedures.24 Later,
facing the prospect of a general congressional resolution
limiting presidential warpowers, the first attempted War
Powers Act, Nixon signed a bill accepting a cutoff of future
operational funding to Indochina. Despite Nixon's
acquiesce, largely as a result of the disputes over the
operations in Laos and Cambodia, congress passed the War
Powers Resolution in the Autumn of 1973 over Nixon's veto.
Passage of the Warpowers Act, at the time Nixon was
embroiled in the Watergate scandal, and the Yom Kippur War
crisis in the Middle East, is testimony to the political
weakness to which Nixon had fallen. The inopportune timing
demonstrates the extreme congressional discontent caused by
their inability to control Nixon's command prerogative, in
the prosecution of the Indochina conflict.
Another piece of presidentially restrictive
legislation, the National Emergencies Act of 1976 targeted
the huge amount of unrevoked emergency power legislatively
authorized the President, especially since the Great
Depression in the 1930's. Below is described the vast scope
of emergency laws:
Emergency powers have permitted a president to control
the economy, regulate imports and exports, impose
rationing, intervene in labor disputes, freeze wages
and prices, suspend civil liberties, impose censorship,
and otherwise control the information the free press
can publish.25
Presidents have been far more willing to declare
emergencies than to end them, so emergency periods and
the laws operative in them typically have lasted many
years beyond the end of the original emergency.26
For example, using a dated but unrevoked congressional
emergency grant, Woodrow Wilson approved the arming of
merchant ships prior to the U.S entry into World War I.
Similarly, during the Cuban Missile Crisis, John Kennedy
froze Cuban assets in U.S. banks using a statute passed
during the Korean War. Concerned not so much with the fact
of emergency powers as with the nontermination of latent
presidential authority existing beyond the period of the
emergency, the National Emergencies Act places limitations
upon emergency powers and allows a legislative veto of
emergency declarations through concurrent resolution. The
effect or the bill is to leave the 470 existing emergency
acts in place (congress cannot revoke them because they
originate from presidential declarations), but to limit
executive prerogative in declaration of national emergencies
in so far as the president must inform congress of emergency
actions through a formal entry in the Federal Register and
the congress must meet every six months to reconsider the
necessity of the emergency. The president, under this law,
may declare a state of emergency to run for a year,
renewable upon 90 days notification to congress. This is a
significant lessening of a formerly almost unlimited
prerogative.27
Another major area of executive prerogative in national
security affairs since the end of World War II, the
unfettered authority to conduct covert activities given the
President by the 1949 amendment to the National Defense Act
of 1947, was checked by the 1974 Hughes Ryan Amendment to
the Foreign Assistance Act. Hughes Ryan responded to
congressionally perceived abuses in CIA operations which in
the 1970's contributed to the overthrow of Chile's communist
president Salvatore Allende. The law requires the President
deliver a Scope Paper detailing the size, cost, and purpose
of each covert activity. Until the Reagan Administration,
it also prohibited the CIA from utilizing funds for covert
operations, limiting the agency to intelligence collection
activities only. As an additional control mechanism during
the Carter administration, the House and Senate established
inteiligence oversight commitees empowered to demand
information, review budgets, subpoena information and
require testimony from the intelligence establishment
through the Director of Central Intelligence. The
congressionally perceived urgent need for legislative review
of intelligence community operations was spurred in part by
the Watergate burglars use of CIA voiceboxes, burglar tools,
and disguises, all in the name of national security.28
Unfortunately, the effect of bringing congress "into the
know" on covert actions is the compromise of some operations
and the blockage of others by hostile legislators who
threaten to leak operational information. In many cases the
result has been to confuse the need for oversight with a
need for congressional consensus in secret operations.29
To regulate the President in foreign arms sales,
congress amended section 36 of the Foreign Military Sales
Act requiring executive notification to congress of military
sales in excess of $25 M, later amended downward to $7 M.
Congress can disapprove any regulated sale by concurrent
resolution within 30 days, unless there is an emergency such
as the 1973 Yom Kippur War in which Israel was aided.30
From a commander-in-chief perspective, security assistance
funds are a cornerstone of the Containment Policy, offering
the president the capability to respond flexibly to third
world low intensity conflicts around the golbe.
Congressional strictures in this area prevent prudent,
timely, and economical measures to support U.S. allies, as
exemplified in the detailed language limiting the
construction of airfields and roads in Honduras in recent
security assistance bills.
With the war in Vietnam in progress, the Senate in 1969
passed a William Fulbright sponsored resolution to limit
presidential executive agreements by forbidding binding
national commitments to use military force on behalf of
another country unless commited by means of treaty, statute,
or concurrent resolution of both houses of congress.
President Nixon successfully defended executive orders,
establishing U.S. military basing in Spain and Portugal and
claiming that a congressional resolution could not strip an
executive order of its legally binding effect in the case of
Spain; nor could it in the case of Portugal require an
executive agreement's formalizion by treaty .
The Case Act of 1972 goes a step further, requiring the
reporting of secret executive agreements, one of which
congress felt responsible for their "being had" in the Gulf
of Tonkin incident and for their near unanimous resolution
to enter the Vietnam War (Congress rescinded the Gulf of
Tonkin Resolution in 1971).31 From the legal standpoint the
presidential practice of secret executive agreements was
determined constitutional by the Supreme Court in U.S. vs
Belmont, upholding Franklin Roosevelt's diplomatic
recognition of the Soviet Union prior to U.S. entry into
World War II.32
In 1976, determined to keep the U.S. out of an "African
Vietnam", congress passed the Clark Amendment to the
International Security Assistance and Arms Export Control
Act to prohibit the use of V.S. funds for military
operations in Angola, unless approved by joint resolution.33
Years later, during the Reagan Administration, Congress,
recognized the error of a flat ban on covert aid to Angola,
and acknowledged that the Cuban Soviet surrogates had not
departed the country within a year as the bill's proponents
had promised. The law was repealed to allow limited support
to UNITA rebels under Jonas Savimbi. Another outcome of the
Clark Amendment experience is the legally circumspect
wording of the Boland Amendments of the 1980's, which sought
not to restrict the president, but only the intelligence
community, from supporting the democratic resistance in
Nicaraugua.34 The congressional intent of these amendments
is a central issue in the criminal prosecution of former
National Security Advisor William Poindexter and National
Security Assistant Oliver North, defendants in the Iran -
Contra affair. Both men were members of the executive
branch, not the intelligence community. Iran-Contra was
investigated under the Special Prosecutor Act, a legacy of
the Watergate scandal authorizing congress to investigate
allegations of criminal misconduct independent of the
Justice Department. The constitutionality of this law is
heatedly debated.
From this brief overview one can surmise as Dr.
Brzezinski does:
Congress is more involved, more central in the shaping
of national security policy. This has resulted from a
variety of factors, but it is a fact of life.... 19
I mention this to highlight the fact that over the last
fifteen years a pattern in executive-legislative
relations has developed which does create serious
difficulties. These cannot be finally resolved by
legislation or formal agreements. Repealing the War
Powers Act would not solve the problem . Alone, that
would not automaticalLy restore a proper balance. The
difficulty arises not from a deficiency in the
statutes. It is instead a political problem. What is
needed is a process of political accommodation and
adjustment that takes into account the global
circumstances of the United States and political
realities at home.35
The purpose of this paper is to the sources of presidential
power and to analyze the political problems of the
presidency in U.S. national security policy originating from
two sources: One, the nature of U.S. political institutions
mandated in the Constitution with its eighteenth century
liberal view that tyranny is best avoided through the
separation of powers and its countervailing checks and
balances. Edwin Corwin alludes to this feature of the U.S.
Constitution as establishing "an open invitation to
struggle".36 The expansion of pluralistic, interest group
norms in the national security bureaucracy and congress
increases the number of participants in the struggle. The
conflict between the president's national security
responsibility and the modern regime values of participatory
democracy are covered in chapter 4. The other political
problem is the post-Vietnam public attitude and competing
belief systems which question the propriety of U.S. great
power responsibility in world affairs. These attitudes,
mirrored in the neoisolationist congressional approach to
national security policy and, arguably, even that of the
Department of Defense, are discussed in chapter 5. Next,
chapter 2 will analyze the colonial, early national, and
constitutional background of the presidential office, with
emphasis on the Commander-in-Chief and foreign policy
functions. Following that, Chapter 3 traces the evolution
of power which resides in the modern presidential office.
In this introduction is outlined the major legislative
restrictions on presidential power resulting from the
Vietnam War and the Watergate scandal. The overall scope
of the paper is simply political analysis of presidential
power and executive prerogative in national security policy
with emphasis on the political environment in the modern
era.
Chapter 2
THE PRESIDENTIAL ROOTS: COLONIAL, EARLY NATIONAL, AND
CONSTITUTIONAL OVERVIEWS
Gaining a meaningful perspective upon current issues
surrounding the presidential power in national defense and
foreign affairs requires a study of the basis for unity in
the presidency emanating from American colonial U.S. early
national, and U.S. Constitutional history.
The invention and establishment of the American
Presidency took place over an almost twenty year
period, between the years 1775 and around 1795. During
this time a variety of factors and influences shaped
American political thought. No one explanation
suffices. The excesses and deficiencies of legislative
government caused people to reconsider the executive
institutions they had earlier rejected. Thus the
British crown and even the detested royal governors
served as models. The example set by General George
Washington provided another. The framers learned also
from the crucial experiences of trying to make their
new governments work both at the state level and under
the (Articles of) Confederation. Finally, the writings
of political theorists, historians, and legal scholars
informed them as they went about the practical work of
devising a new national government.
Some of the dreamers of the day dreamed dreams of
an entirely new form of government, one led and
organized only by legislators who would constitute
representative government. But both history and
experience pointed to the need for a single executive
who would complement legislative policymaking. Thus
separate institutions, a presidency included, were
agreed upon; separate institutions that would share
various policy and rulemaking powers necessary to make
a large growing nation work. The challenges of
governance and leadership encouraged first the design
and then the functioning of a strong executive.
Considerable debate and uncertainty existed at first.
With George Washington elected and in office for
awhile, however, the shape of the institution became
increasingly clear. The presidency continues to evolve
today, but its creation and chief characteristics were
plainly cast in the last quarter of the eighteenth
century. Unique, dangerous, yet necessary, the
creation or invention of the American presidency was
one of the most important acheivements of the
Constitutional Convention. A brilliant fusion of
theory and experience, and a major political gamble,
the American presidency served us well for our first
two hundred years.1
In the forgoing summary Thomas Cronin capsulizes the
historical currents underlying the American chief executive
concept. A thorough analysis of presidential power and
executive prerogative had its anchor in the rudimentary
intellectual and experiential millieu of revolutionary
America and the initial experience as a nation.
Using the Declaration of Independence of 1776 as a
statement of foreign policy, the American founding fathers
succeeded in winning independence against three tyrannies:
kings, courts, and parliaments. The most significant
perceived tyranny was that of the King of England, George
III, who through his royal governors, and supported by acts
of a budget conscious Parliament, taxed the colonies in the
Stamp Acts and the Townshend Act in order to pay colonial
expenses which were an increasing drain on the Royal
Treasury. Though approved by parliament, the colonists
interpreted these measures as kingly taxation without due
process, contrary to the democratic control in British
taxation matters instituted by Oliver Cromwell.
Consequently, the colonists saw themselves as Englishmen
whose rights were abridged because of their colonial status.
Calling the King "The Royal Brute of Britain", Thomas
Paine's written aspersions, indicative of his somewhat
demogogic didain for authority, crystallized the emotion
mobilizing a large percentage of American colonists toward
independence, and symbolized the negative public attitude
regarding executive power in government.2
When relieved from the governmental template imposed by
the British Crown during the American Revolution, the
colonial popular assemblies were free to concoct methods of
controlling their executives. With the exception of New
York, this control included a diversity of provisions to
subordinate government to the legislative bodies; the
legislature was supreme. The Continental Government
operated for five years with no Constitution or documentary
authority until the ratification of The Articles of
Confederation in 1781. Originally proposed as a so-called
Council of State the Articles of Confederation provided a
weak executive to assume limited functions. But the
Continental Congress, regarded the semantics of the word
"council" as connoting excessive central power and
substituted the weaker name "Commitee of States".
Deficient both executive and unified power, the initial
presidency both before and under the articles served as a
presiding officer and a delegate with terms of one year and
eligibility to serve one year in three.3 Continuity or
duration in office was obviously considered a liability and
not an asset. From the First Continental Congress in 1774
to the 1st session of the Second Continental Congress in
1789, fourteen presidents served terms averaging only a year
each. Of these early presidents John Hancock holds,
perhaps, the most renown for his presiding over the
Declaration of Independence, to which is boldly affixed his
famous signature. The pre-constitutional presidents
comprise a portion of the conceptual and experiential base
for the constitutional framers as noted by Richard Morris:
Since these presidents exercised the first glimmerings
of executive power under the central government, and
since six presidents preceded the actual formation of
executive departments, their role foreshadowed, however
dimly, the presidency under the federal constitution,
which assumes a separation of powers unknown to the
congress of the pre-confederation or the confederation
years. Whatever authority the president exercised
emerged out of the necessities of the case and rested
on slight legal foundation, but what they did and how
they did it depended in no small measure on their
personalities, their own conception of their roles in
office, and the political situation which confronted
the respective incumbents.4
The personality dependence of power in the early presidency
illustrates the paucity of presidentiai authority absent
express legal grounding and longevity of term.
The Congress of Confederation, as it was called under
the Articles, was structured similar to the Continental
Congress, with a unicameral body of between two and seven
delegates from each state elected every three years by each
state's legislature.5 It served executive as well as
legislative functions, appointed a committee of states to
manage affairs of union while the congress recessed, and was
empowered to create commitees to conduct the national
business. Inadequate to perform the executive tasks, but
opposed to central authority, congress assigned the
portfolios of foreign affairs, war, navy, and treasury to
committees rather than individuals. When the committees
exhibited shortcomings in unity of effort, congress
compromised its preference for commitees by appointing
secretaries of the various departments as replacements.6 A
symbol of legislative primacy in the national scheme prior
to the Constitution, the United States government was known
as "The Congress" until 1781, when, with the advent of the
Articles of Confederation, the name was changed to "The
United States in Congress Assembled". Though vastly
different in substance, The Articles of Confederation are
the national predecessor to the U.S. Constitution,
representing the "American learning curve" regarding the
necessity for a strong central government.
Supremacy of states over the national government under
the Articles of Confederation was the major feature of the
early federal structure deriving from the colonial period
when only two of the charter colonies were allowed a
popularly elected governor, thereby making the popular
assemblies integral to colonial self-expression as a check
against the royal governor and his power of absolute veto.
Royal governors, though not in every case appointed by the
king, were always answerable to him and not to the popular
assemblies. The importance of the popular assemblies as an
outlet for grievances was magnified by the restriction of
franchise to property owners only. When the royal governors
dissolved the mandated popular assemblies per the terms of
the colonial charter, the colonists devised their own
representative assemblies connected by an informal national
network.
Virginia, in 1774, initiated the Committees of
Intercolonial Correspondence in response to the 1773 British
Coercive Acts. In successive steps the First Continental
Congress of 1775 was originally proposed by the Virginia
Committee of Correspondence, and the Continental Congress,
in turn, legitimized the provincial congresses by calling
for their creation and for the drafting of their
constitutions prior to the Declaration of Independence.
With representative government effectuated despite its
dissolution by the royal governors, Americans viewed their
homegrown assemblies favorably, believing sovereignty to
reside in the people and their representatives; whereas
central government and executive power experienced under the
royal governors were each synonymous in the colonial mind
with monarchy, tyranny, and the usurpation of popular
sovereignty.
In reaction to the British colonial rule, the first
state constitutions provided a skewed balance between the
branches by subordinating the executive to the legislature.
The governors in all states, except New York, Rhode Island,
and Connecticut, were elected by the legislature and the
latter two were strongly subordinated to the legislature.
Terms of office were one year, except for New York and
Delaware where terms lasted three years, and South Carolina,
where it ran two years. Governors had neither final veto
power, power to adjourn the legislature, nor extensive, if
any, appointive power.7 To ensure diffusion of authority
Pennsylvania, Delaware, New Hampshire, and Massachusetts
substituted an executive council for the office of
governor.
A model for the U.S. Constitution, the constitutional
government of New York State benefited from the negative
experience of governmental fragmentation in the other states
and, not least of all, upon a dangerous military situation
within the state during the Revolutionary War, necessitating
the features of unity and continuity in the governor's
office. Shaping the New York executive design were a group
of pro-active conservative thinkers, including John Jay and
Gouverneur Morris, who would later form the nucleus of
nationalists, or federalists, in the 1787 Philadelphia
Convention. Favorably impressed with the success of New
York's chief executive, Massachusetts replaced its plural
executive with a single governor.8
The adoption of the Articles of Confederation in 1781,
was an initial move to codify federal governmental
relationships initiated in part through the ascendance
within the Continental Congress of the nationalists, whose
expansive vision of the nation's future was interwoven with
their fidelity to the cause of a strong national government.
The nationalists included Alexander Hamilton, James Madison,
Gouverneur Morris, James Duane, John Jay, and Robert Morris,
among others. The influence of these men initiated an
extraordinary shift in public philosophy toward support of a
more positive government characterized by central authority.
This differed markedly with the main tenets of the American
Revolution opposing monarchy and authoritative national
power. Those opposed to strong national government were
among the notable patriotic heros of the American
Revolution, including whigs, or traditional republicans like
Samuel Adams, Richard Henry Lee, and Patrick Henry.
The nationalists advocated not only strong central
power, but broad discretionary power in the national
government, especially the executive branch. For them the
meaning of republicanism had evolved since the Revolution,
and the concepts of "civic virtue" and liberty were defined
in new ways particular to an emergent science of politics
which was capable of accomodating democracy, not only in
small polities of agrarian composition, but in a larger
extended republic of commercial enterprise. The whigs, or
traditional republicans, also called "antifederalists"
during the Constitutional ratification maintained weak
central power with strictly interpreted limited powers were
fundamental to individual liberty. In their opinion, the
Philadelphia Convention, by deviating from a mere
modification of the Articles of Confederation to the
drafting of a new a constitution, betrayed the republican
principles of the Revolution, lacked civic virtue, and
ignored the basis of liberty in favor of a politics devoted
to the pursuit of riches and glory.9
The divergence of philosophy between the two early
national competing schools of American republican thought
have flavored the nation's political culture for more than
two hundred years with their divergent viewpoints concerning
the limits of presidential power and the role of national
government. While the American Civil War solved through
violent means the smoldering issue of state nullification of
national sovereignty, the questions surrounding the limits
of executive prerogative are a recurring source of
discussion and argument.
In September, 1780, after the nationalists gained a
prevailing political influence in the Continental Congress,
Alexander Hamilton wrote a letter to fellow New Yorker James
Duane prescribing a nationalist agenda in which he proposed
the Articles of Confederation, then in drafting, authorize a
rational power to tax and make war. Because Hamilton felt
the power of the purse the essence of governmental power, he
advocated that the states provide perpetual funds to
congress, reasoning that high taxes are the mark of a free
people because:
"The obedience of a free people to general laws, no
matter how hard they bear are ever more perfect than
the obedience of slaves to the arbitrary will of the
Prince."
To Hamilton a weak executive meant weak ineffective
government:
"In our case the problem is that the common sovereign
will not have power sufficient to unite the separate
parts together and direct the common forces to the
interest and happiness of the whole."10
When the states did not expressly agree to authorize
national taxation, the Articles of Confederation were
approved minus the taxation power. Hamilton subsequently
argued for the discretionary power to tax consonant with a
power implied, in his view, by national sovereignty in the
prosecution of a war. His rationale was that undefined
powers are limited only by the object for which intended.
The idea of discretionary powers as the axiom of all
political power, or a principle from which all subsequent
reasoning descends, was later spelled out in The Federalist
Papers # 31 during the Constitutional ratification debates
and is fundamental to an understanding of executive
prerogative.11 Having failed to persuade the states on the
taxation issue, and the Continental Congress on the
propriety of discretionary taxation, Hamilton proposed
strengthening the Articles through a constitutional
convention in order to overcome the disunity and the
corresponding national weakness existing in the governmental
structure.
An illustration of the truth in Hamilton's premise that
taxation is the source of government power unfolded with the
creative scheme to finance the Continental Army during the
Revolution. Lacking a national treasury and the coercive
power to develop one, Revolutionary War finances depended
upon the voluntary graces of the states. To rectify the
absence of central revenue raising, the Continental Congress
appointed the independently wealthy Robert Morris to the
post of Financier. Enlisting his credit to secure
governmental financing, the Continental Congress gave Morris
absolute discretion in purchasing foreign goods and ceded to
him many congressional functions such as controlling loans
and assuming authority for all national appointive offices,
with the exceptions of General Washington and the Secret
Service. In executing his official duties, Morris added to
his personal fortune and enjoyed vast personal fiat in
government, unequivocally demonstrating the logic of
Hamilton's position vis-a-vis the power of the purse and its
relationship to power and efficacy.
With the American victory at the Battle of Yorktown on
19 October 1781, revolutionary hostilities with the British,
in essence, ended. The prospect of peace, although ten
years in the making, struck a blow to the nationalists who
felt the continuance of the conflict necessary for the
nation to acquire both the habit of paying taxes and the
vigor and confidence to provide a common defense.
Gouverneur Morris summarized nationalist sentiments:
"War is a ride wet nurse to infant states. States
either die or grow vigorous."12
Nationalist frustration was increasingly evident in a
political misjudgement which occured during the peace
negotiations. While awaiting the Treaty of Paris,
eventually signed on 3 September 1783, disgruntled
Continental Soldiers, garrisoned in Newburg, New York,
petitioned congress for their pay with a veiled threat of
insurrection. Alexander Hamilton, Robert Morris, and
Gouverneur Morris saw in "The Newburg Conspiracy" a
political opportunity to force national taxation. On his
own, Hamilton recklessly endorsed the endeavor to the
delight of his political opponents, the traditional
republicans. The episode climaxed when the conspirators
invited George Washington to become their military dictator
and the General responded with a reprimand, ending the
episode and temporarily dashing the aspirations of those who
favored national taxation.
At the Revolution's ending the limited impetus for
coalition among states represented by the common British
enemy was lost and the Continental Congress was rendered
useless, as it could hardly function. Nine of thirteen
states were the quorum to conduct business; but the real
political leadership, resident in the state legislatures,
was disinterested to the point of seldom sending
representatives to the national assemblages.
Depending on the point of view, the years 1783 to 1788
were either a critical period for the United States because
of the weak central government, or, as the traditional
republicans claimed, the nationalists magnified the problems
of the day to justify a stronger national government.
Among the substantial problems were: rampant inflation in
the Continental paper currency, British banning of American
ships from the West Indies, and British restrictions to
trade. The British also refused to remove troops from the
northwest garrisons under the valid justification that
nonpayment to British concerns of private debts incurred
prior to the war's outbreak violated the Treaty of Paris.
Because of deficient national coercive power in the federal
relatiorship, some states passed laws actually impeding the
collection of these pre-war British debts. When congress
sent John Adams as emissary to England to protest the
continued manning of the British garrisons in the northwest,
the nonexistent American military backing left the British
completely unconcerned.
Beside the private debt problem, the provision
requiring unanimous consent of the states for raising
nationai revenue resulted in the nonpayment of the national
war debt. The fledgling nation's economic difficulties
acceleraLed when, in Spain, John Jay failed to negotiate
American rights of navigation on the Mississippi River, and
both Britain and Spain embargoed trade, forcing The United
States further into post war recession.
Because of the ominous economic nationwide difficulties
owing to trade and currency, a national convention was
planned for Annapolis, Maryland in 1786 but was disbanded
before it convened with the rationale that postponement of
the convention would allow a more serious addressal of
national issues in Philadelphia the following year, 1787.
In fact, for reasons of no clear self-interest, the New
England states had opted not to attend the Annapolis
gathering and other states were poorly represented. To
conduct the convention with such a weak representation would
have defeated any initiatives taken.
During the year's interim between the Annapolis and
Philadelphia Conventions, financially pressed citizens in
western Massachusetts called a number of local conventions
to demand changes in the state government, such as abolition
of the senate and cessation of heavy land taxation, lawyer's
fees, and county court costs. Later, during the winter of
1786-87, in protest of farm foreclosures, mobs prevented
Massachusetts county courts from holding session, and about
two thousand farmers rose in armed rebellion under the
leadership of a former Continental Army Captain named Daniel
Shays. Though suppressed by the Massachusetts State
Militia, Shays Rebellion raised national fears of widespread
anarchy in other indebted areas of the United States.
Shays' threat to seize the U.S. Arsenal at Springfield,
Massachusetts had raised concerns that the militia might
need assistance from a national army which the congress was
incapable of expeditiously providing.
The shock of Shay's Rebellion mobilized a strong and
representative turnout of concerned state delegations at the
Philadelphia Convention, but the panic and insecurity were
not universally shared. Thomas Jefferson, speaking for the
traditional republican viewpoint expressed skepticism toward
of Secretary of War Knox for having greatly exaggerated the
numbers of Shay's adherents. Furthermore, he suggested that
the Americans were once again being duped by the British
with their constant rumors of anarchy, and that the
nationalists in their plans for a strong central government
would set up a kite to guard the hen yard.13 Jefferson's
thoughts notwithstanding, the Post Revolutionary War
depression and the experience of Shay's Rebellion in 1786
underscored public perceptions of the inadequecy of national
military means, adding a grassroots sense of urgency to the
quest to form a strong central government and a credible
common defense.
In tune with political thought of the times, the
Constitutional Convention in 1787 created the unprecedented
office of president with an inherent conflict deriving from
the colonial and early national experiences in parallel with
the traditional republican - nationalist divergence of
viewpoints. Rationalizing a strong national government
while guarding against potential monopoly of power, the
Philadelphia Convention initiated a system of checks and
balances among three branches: the legislative, the
executive, and the judiciary. Conservative in outlook, the
convention rejected eighteenth century notions of the
perfectability of man and excessive expectations about the
possibilities of political action. The constitutional
separation of powers embodies a belief in political
engineering and a propensity to pursue diverse, even
controverting goals through the implementation of a complex
governmental structure.14 In terms of national security the
president was designated commander-in-chief of the armed
forces with undefined and therefore expandable or limitable
authority; however, the congress would provide for the
common defense through declaration of war, raising and
supporting armies, providing and maintaining a navy, and
providing for calling forth a militia to execute the laws of
the union. Jean S. Holder distills the inherent
presidential conflict in the Constitutional arrangement:
Americans have characteristically held ambivelant views
toward power - particularly presidential power. In the
decade that began in 1970 the pendulum moved full swing
as critics of various stripes first deplored the
"imperial presidency" of Richard Nixon and then
rejected the leadership of Jimmy Carter who tried to
strip the presidency of its regal trappings. The
present day ambivelance is, in part, a legacy from the
Founding Fathers who resolved their own inner and
interpersonal conflicts in regard to power by creating
an executive office of minimal definition in the
Constitution. These men who had fought to free
themselves from what they perceived to be the threat of
enslavement to royal tyranny were caught between their
fear of creating a quasi-regal leader and their belief
that strength in the executive was essential to
effective, balanced government. In providing a merely
skeletal description of the presidential role, the
framers of the Constitution skirted their own dilemma
but set the stage for a power struggle that would
essentially begin with the second American presidency.
As the idol of the entire nation, George Washington
conducted a magisterial administration; his personal
prestige and stature made his word fiat among
contemporaries.15
State experience under the Articles of Confederation
underscored the necessity for a vigorous, responsible, and
singular president, emphasizing emergent tendencies toward
confidence in the executive and distrust of the legislature.
New York, under the Governorship of George Clinton for
eighteen years, provided the model for the U.S. Presidency
within a constitutional separation of powers, and is
noteable for limiting the power of the legislature.
Executive independence, election by the people instead of
the legislature, command of the military, qualified veto,
unlimited three year terms, and executive equality with the
legislature were factors at variance with other states, most
of which had plural executives of extremely limited power
Clinton largely influenced the New York constitution with
his aversion to councils and his feeling that executive
energy and responsibility are inversely proportional to
reponsibility. Ironically, Clinton felt monarchy was more
likely to occur with strong executive power on the national
than on the state level, and his letter to the people of New
York during the ratification debates stands as one of the
most articulate traditional republican arguments against the
constitutional presidency.16 That the governor with the
strongest formal power among the states should oppose
similar authority at the national level epitomizes the
contradictions inherent in the American ambivelance toward
central government.
With the persuasive leverage of the nationalists over
the traditional republicans in Philadelphia, the convention
changed course from a modification of the Articles of
Confederation to