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 a redesign, or more accurately, the
creation of a new government. This resulted in a completly
new Constitution, simultaneously shifting governmental
structural from a system with legislative primacy to one
where sharing of power among three branches would be the
design. The notion of the sovereign legislature had been
discredited and replaced with the realization that national
survival depended also upon an energetic presidency. To
this end the founders were explicit that presidential power
have a Constitutional and not a statutory foundation of
formal power.
Judith A. Best suggests the founders construction of
the presidency grew out of an overriding fear of legislative
tyranny and the confident belief in an energetic executive
as the cure. Supporting this fear was a new and more
sophisticated philosophical conception of tyranny as the
accumulation of powers, legislative, executive, and judicial
in the same hands growing out of the political theories of
Baron Charles Secondat De Montesquieu and John Locke, as
opposed to the precept of tyranny as one man rule conveyed
by Aristotle. Ingrained in the Constitution, this divergent
conception holds that a republic improperly balanced can be
as tyrannical as an unbenevolent monarchy. Specifically, a
legislative body unchecked in its power can wield the
tyrannical reign of a single despot. On the Philadelphia
Convention floor James Madison suggested the popular faith
in legislatures as the only source of good government,
devolving from the American colonial years was, perhaps,
misplaced:
"Experience had proved a tendency in our goverments to
throw all power into the legislative vortex. The executives
of states are in general little more than cyphers; the
legislatures omnipotent. If no effective check be devised
for restraining the instability and encroachment of the
latter, a revolution of some kind or other would be
inevitable."
Incorporating a so-called "check" against legislative
tyranny, Article II of the U. S. Constitution designates the
president commander-in-chief of the army and navy of the
United States and of the militia of the several states, when
called into actual service of the United States. He is to
act as a chief diplomat in receiving ambassadors and other
public ministers and to make treaties with the advice and
consent of the Senate.17
In Article I the congress is empowered to "provide for
the common defense" and to regulate commerce with foreign
nations. This sharing of foreign affairs functions between
congress and the president reflects the design to prevent
the accumulation of power in the same hands, the equivelant
of tyranny. At the same time, power sharing was a
compromise, a countervailing of the modern conception of
tyranny against a parallel belief that strength was
essential to balanced government.18 The legislative -
executive construct with its division and sharing of power
also documents the interplay between the nationalists, who
greatly admired the British governmental model and the
traditional republicans, many of whom were satisfied, given
small modifications, with the Articles of Confederation.
The presidency, thought by the founders to be the weaker of
the two when paired against congress, is an office, a
position of undefined and therefore expandable power,
whereas the congressional powers are much more carefully
delineated in Article I under the assumption the legislature
will by nature predominate in government. One of the main
poitical divisions between the traditional republicans and
the nationalists was their opposing views of executive
power. The nationalists were victorious in Philadelphia and
their view defines the presidency as it developed.19
In practice and precedent the presidency has grown via
the commander-in-chief power to dominate in foreign policy
and national security policy, both in the nation's early
history, but increasingly in the twentieth century with
exponential growth following World War II. Alexander
Hamilton, denied an active part in the Philadelphia
Convention when the New York delegation left prematurely in
protest of the decision to draft a new Constitution, played
a large role in the turf battle for executive power through
his ideas contained in The Federalist Papers, which were
originally newspaper articles supporting ratification of the
Constitution. Later, as President Washington's Secretary of
the Treasury, Hamilton's advise was instrumental in sizing
the office to the dimensions intended by the Nationalists.
In "Federalist #70" Hamilton argues for unity,
duration, adequate provision for support, and competent
power for the president. The destruction of unity can
result from either a plural executive or by making a single
executive subject to the control and cooperation of others
within the political spectrum. By duration he advocated a
sufficiently long tenure in office to allow continuity and
firm institution of policy. Provision for support meant
divorcing the president's salary from the congressional
purse strings for obvious reasons of executive independence,
and competent power meant the power to effectively execute
the laws and lead the nation. Hamilton felt the greater
danger lay in not exercising enough presidential power. He
advocated virtu or energy in the executive against ambitious
individuals, against seditious classes of the community, and
against the invasion of external enemies.20 It is fairly
clear that Hamilton was a monarchist and a strong advocate
of executive prerogative in the kingly sense. His arguments
for executive energy in The Federalist Papers downplay this
leaning, compromising his strong views concerning the
primacy of foreign affairs over domestic and the
corresponding primacy of executive function over
legislative. For example, "Federalist # 69" aims to win
over Constitutional opponents of strong executive power by
delineating why the president is not a monarch.21
The expansion of vaguely defined formal power first
occured when the primacy of the president in foreign affairs
was recognized by congress in 1789. The first congress
chartered a Department of Foreign Affairs, later the State
Department, under complete executive control. Foreign
expeditures and their disclosure were placed in the
president's charge, and when the Senate created the Foreign
Relations Committee in 1816 a commitee report stated: "The
president is the constitutional representative of the United
States with regard to foreign relations. He manages our
concerns with foreign nations; for his conduct he is
responsible to the Constitution."22
U.S. history, national security interests, and
expanding foreign policy concerns have produced more than
two centuries of incrementally increasing presidential power
with many presidents availing themselves of discretionary
powers implied by the skeletal constitutional nucleus.
Discretionary measures, or prerogative, as described by the
political theorist John Locke, entail actions to ensure the
spirit if not the letter of the law. Prerogative parallels
Hamilton's virtu, derived from Niccolo Machiavelli's The
Prince. Contained within this treatise, considered one the
western world's first works of modern political science, is
Machiavelli's advise to Florentine ruler Lorenzo Medici.
The intent was to advise Lorenzo in the ways of acquiring
power and uniting a large portion of present day Italy to
ensure survival of the state through good arms, which, in
turn, bring forth good laws. Since fortune and pride should
dictate success, the Prince should act as though half lion
to frighten away wolves and half fox to avoid snares.
Ideally impetuous and unpredictable, he should never confuse
virtu with virtue. Virtu is the accomodation, or the
appearance of virtue, necessary to appease subjects, to
acquire, and to hold power. Because politics are constantly
in motion they parallel the laws of physics. Consequently,
virtu (energy) accomodates politics (motion), while virtue
is by contrast, stagnant. A Prince with virtu will stay in
power while a Prince with virtue is doomed to failure.23
In agreement with Machiavelli's notion that success of
the state involves the goodwill of its subjects, John Locke
advises that citizens will allow, in fact demand prerogative
actions by the sovereign as long as the actions do not
interfere with property and life. Because laws are fixed
but politics are in motion, a legislative body as a
deliberative organization is not suited to the immediacy of
command decision. On the other hand, the capability of
executive prerogative to provide flexible responses to
various emergencies and state survival issues justifies its
exercise. The sovereign can also use prerogative to enforce
the spirit or intent of laws, in so doing exceeding positive
law or domestic law as we know it.24
Locke's definition of "executive prerogative" is the
power to act according to discretion, for the public good,
without the prescription of the domestic law, and even
sometimes against it.25 Stated another way, the Lockean
reasoning in defense of executive prerogative is this: The
legislature is incapable of completely fulfilling
governmental functions, particularly where protection
against external threats is concerned, therefore, sovereign
power must extend beyond the mere execution of the laws.
Lockean prerogative would permit the executive to act,
exceeding the laws in those cases where action by the
legislature would be impossible or ineffective. Regarding
the federative power which concerns affairs in the
international realm, distinct from positive (domestic) law,
the sovereign has no limitations.26 Locke's notion of dual
spheres for domestic and international affairs is a commonly
held postulate of modern political philosophy.
The Lockean intellectual disposition of the founding
fathers raises the question: Does the President have the
duty to violate the Constitution under some circumstances
especially when he judges it necessary to preserve the
Constitution? Some presidents, like Thomas Jefferson,
Abraham Lincoln to a degree, and Harry S.Truman, have
claimed emergency powers for which there seems to be no
constitutional basis. An overview of presidential
prerogative comprises part of the following chapter.
Charles Secondat Baron de Montesquieu, whose book The
Spirit of the Laws provides the basis for the constitutional
separation of powers conceptions expressed by James Madison,
was referred to more often by name than any other political
philosopher at the Constitutional convention. He articulates
a parallel to Locke's federative power, calling it "the
executive power".27 The "dual sphere of foreign and
domestic affairs underpinning the Constitution is often
misconstrued, denied or ignored in the modern American
approach to foreign policy, which by its nature treats
foreign policy as an extension of domestic politics.
Constitutional history shows a clearcut intent by the
framers to endow the presidential office with energy,
reflecting as previously alluded, a shifting in beliefs
about the aims and nature of good government, at least among
the American propertied elite responsible for the
Philadelphia Convention outcome and the eventual
ratification of the Constitution. The assumption of
traditional republicans (antifederalists) that the ideal
polity consisted of small, agrarian republics with tightly
limited governments lost in the competition of ideas with
the nationalists, or federalists, who envisioned the common
good arising in a polity characterized by large size,
diversity, and economic development. To compensate for
potential rule by factions, narrow interests would be
rendered ineffective in an extended republic by the
plentitude of competing and, countervailing interests.28
Encapsuled in the properly constructed constitution was
an expansive economic vision which foresaw a strong national
government and a vigorous president to acheive that
vision.29 James Wilson, educated in Scotland and an
adherent of the Scottish school of political economy was
largely responsible for shaping the presidency in the
Constitutional Convention through his writing of the first
Constitutional draft and his subsequent influence with the
commitees of style and detail which were responsible for the
final smooth document. He felt a strong Constitutional
presidency essential to commercial growth and reasoned that,
given a properly designed republican system, a president
would more likely act benevolently than corruptly in order
to increase his constituents good will.30
In terms of presidential power it also important to
reflect upon what the revolution and the establishment of
the national government was not: It was not a radical
revolution, but an evolutionary modification of familiar
modes of governance.
Even though it was born of a war of independence
the establishment of the American nation involved no
sharp break with the past.31
It did not reject the British example, but more
accurately, reaffirmed it.
The American revolution left the nation firmly
anchored in the English political tradition.
Government should be strong but limited by law, the
consent of the governed and individual rights; and -
representation is the approprate institutional
mechanism for limiting power and securing government.32
The founders did not favor popular control of
government, in fact they feared it.
Though esconced in the liberal traditions of
Locke, Hume, and Montesquieu, the Constitutional
framers put their faith in the orderly processes of
government. They feared volatile and radical
majorities and recognized the role of authority and
even of elites.33
The virtue of the people was not adequate to the
task of controlling the political effects of human
weaknesses. Only a properly constructed constitution
could have that happy effect.34
The American Revolution did not represent a transition
from monarchy to mass rule. Because the founders feared the
volatility of the public, the original Constitutional
framework envisioned elite rule with mass participation,
which explains the election of presidents by electors and
the election of the senate originally by the state
legislatures. The power and influence of the mass public in
the United States politics developed in gradual steps over
the nation's history.
In summary, the American nation, after shedding the
British colonial yoke, experimented with state and
legislative primacy, but, after the negative experience of
disunity in the Continental Government, attempted to
centralize government, liberate executive power from
legislative tyranny, and insulate government from popular
passion through elite rule, while resting ultimate power
with the people. The Construction of the U.S. national
government and the Constitution was designed to do all of
this.
U.S. political history from colonial times reflects a
shifting of relationships among the branches and levels of
government. In the post Vietnam era a renewed perception of
potential executive tyranny is responsible for the congress
circumscribing presidential authority and rejecting a
portion of the sovereignty it validly possesses in affairs
external to the nation.
Chapter 3
ENERGY AND UNITY
PRESIDENTIAL AUTHORITY: DEFINITION BY PRECEDENT
The scope of the American presidency as it is known in
the modern era is evolutionary, resting upon the custom and
practice of former presidents as a shaping influence within
the political constraints, the power relationships and
circumstances of given eras of U.S. history, and the
interpretation of individual presidents regarding the scope
of their formal and discretionary powers. As Woodrow Wilson
stated in a lecture series he presented while at Princeton:
Greatly as the practice and influence of the Presidents
has varied, there can be no mistaking the fact that we have
grown more and more inclined from generation to generation
to look to the President as the unifying force in our
complex system, the leader both of his party and of the
nation...His is the only national voice in
affairs.(Constitutional Government)
The presidents position as both commander of the armed
forces and head of state make him the logical purveyor of
American authority in international dealings. It is fair to
say that without the relatively unrestricted presidential
use of prerogative powers in the arena of foreign policy
this nation would be unrecognizable today.
The first president, George Washington, aided by
Alexander Hamilton (Secretary of Treasury) and Thomas
Jefferson (Secretary of State) established several
precedents effecting presidential roles in national security
policy when he established a cabinet and mobilized the
militia in quelling the Whiskey Rebellion, a revolt in
Pennsylvania against federal taxing authority. By the power
of his personal prestige he was spared addressing many of
the interbranch powersharing concerns caused by
Constitutional ambiguity in the Article II definitions of
presidential authority. Washington thusly, incurred no
protest when he initiated the practices of executive
privilege, the confidentiality of presidential
communications, and the pattern of presidential nonconferral
with the Senate on treaty formulation. The first president
drew heavily, not on the model of the colonial governors or
the ideals of British republicanism, but rather on his
experiences as Commander-in-Chief of the Continental Army.
The lessons of generalship guided him in making the
presidency a symbol of nationalism, an advocate of energy
and unity, and a focus for administrative centralization and
responsibility.1
Owing to his Revolutionary war experience, national
security ranked as Washington's highest priority. Within
the broad category of security, specific issues of concern
were the U.S. commitment by treaty to guarantee French
possessions in the Americas, the presence of British forts
in the Northwest territory, and British and Spanish efforts
to incite disruption and secession in the states bordering
the territories. Additionally, U.S. navigation rights on
the Mississippi were at the mercy of the Spaniards, a factor
limiting national commerce
With the nation encircled by European adversaries and
uncertain of congressional support for diplomatic
initiatives, Washington relied upon prerogative powers in
foreign policy, and in so doing, established the foundation
for presidential assertion of authority in national security
issues. In a highly popular decision Washington opted for
strict neutrality in the British - French Naval War,
ignoring treaty observance with the French and favoring the
British, partly as a result of Alexander Hamilton's
Anglophilic proclivities.
In the ensuing Constitutional debate over the
neutrality proclamation Hamilton defined the issue as one of
diplomacy, an inherent power to the executive foreign policy
power, while James Madison, a member of the House of
Representatives, maintained that the proclamation dealt with
issues of war and peace, an implied congressional power
pursuant to the enumerated power of war declaration. When
congress opted against challenging the executive by passing
supporting legislation, Washlngton's edict initiated an
historical pattern where presidential foreign policy
initiatives are legitimized by congressional affirmation.
The contrast in Washington's neutrality proclamation in 20th
Century terms is that in this case, the president advocated
neutrality while congress prefered war. This pattern of
congressional war initiation repeated itself in the War of
1812 and the Spanish American War.
Washington also established the presidential practices
of recognizing foreign governments, and of breaking
diplomatic relations. His discretion in foreign policy
averted war's escalation from Europe to North America,
secured the U.S. Northwest Territory, and facilitated the
evacuation of British posts, in the Northwest Territory. In
dealing with Spain he negotiated commercial rights on the
Mississippi River and settled the issue of the Spanish
Florida boundary.2
Devoid the heroic warrior image of his predecessor,
John Adams, the second President of the United States was
handicapped politically when he agreed to retain
Washington's cabinet. His authority was challenged
particularly by Alexander Hamilton's effort to command the
U.S. Army against the French, an intrigue in which George
Washington, always popular and still highly influential,
played a passive but important role. Using his formal power
as commander-in-chief Adams was able to field a navy, fight
an undeclared war with France from 1798-1800, and delay
formation of an Army until the need for force passed,
foiling Hamilton in the press. The attempt by Hamilton to
politically manipulate Adams using his affinity with
Washington, threatened the independence of the executive
office for which he and the nationalists had diligently
labored in the Philadelphia Convention. An uncharismatic
leader, Adams illustrated at a critical juncture in U.S.
history the Constitutional strength of formal executive
power and the command prerogative available to even a
politically weak president.3
The strength of the president's voice in national
security affairs is related to the U.S. geopolitical
position and the American foreign policy and warmaking which
are both geopolitically and event driven. The 19th century
was characterized by a U.S. foreign policy of continental
expansion. The greatest perceived security threat was
territorial encroachment, or the possibility of being
surrounded by colonies owing allegiance to one of the
European Crowns. Accompanying the gradual dissolution of
the Spanish Empire during the Napoleanic Wars, the
retrocession of the Louisiana Territory from Spain to France
aroused U.S. fears of additional European colonies changing
hands as a result of European Wars.4 President Jefferson,
who followed Adams in office, took advantage of Napolean's
European war difficulties and France's unrealistic designs
for Haiti as an advance naval base to control the American
interior via the Mississippi Valley. Using executive
discretion as chief diplomat, in 1803 he purchased the vast
western tract of the Louisiana Territory against the wishes
of congress.5 This action he acknowledged as extra-
Constitutional, but as supportive of the long range security
interests of the nation.
In addition to the measures mentioned, Jefferson also
engaged in a covert operation in Tripoli, transferred monies
appropriated by congress for frigates to small gunboat
construction, and waged an undeclared war against the
Barbary pirates from 1801-1805. It is no small irony he
had been a vocal critic of both Washington and Adams for
exceeding their strictly interpreted Constitutional powers
in foreign policy. He would not be the last president to
take a more expansive prerogative view upon assuming the
office.
The Great Lakes were demilitarized by an executive
agreement with the British by President James Monroe in 1817
and, later, in 1819, when General Andrew Jackson entered
Spanish Florida in hot pursuit of Seminole Indians,
Secretary of State John Quincy Adams negotiated for West
Florida and Spain's claim to the Oregon Territory.
In 1823 the Monroe Doctrine, part of an annual message
to congress by President James Monroe which was named cost
facto, became a documentary manifestation of a deliberate
U.S. policy to exclude Europe from the Western Hemisphere.6
The proclamation, had no legal standing but expressed the
continental security sentiments of the Senate's No Transfer
Doctrine passed in 1811 to protest the possibility of
Florida falling into British hands the way Louisiana had
been transferred to the French. The Monroe Doctrine
forbade: further colonization in the Western Hemisphere by
the Europeans, the transfer of existing colonies from one
European power to another, and attempts by Europeans to
extend their system of government to the Western Hemisphere.
The brains behind the Doctrine belonged to Secretary of
State John Quincy Adams, responding to a perceptive view of
the world situation. In 1821 the Czar of Russia, Alexander
I, had issued a Ukase, or edict claiming American
continental territory on the west coast, south to the 51st
parallel and forbidding ships to sail near this claim.
Adam's fear was that the Czar had aims for a further
southern thrust into the Oregon Country and possibly
California.7
The younger Adams also had an expansive view of the
prerogative inherent in the executive exercise of war power.
In a speech delivered May 25, 1836 he commented:
The war power is limited only by the laws and usages of
nations. This power is tremendous; it is strictly
constitutional, but it breaks down every barrier so
anxiously erected for the protection of liberty, of
property, and of life. The powers of war are all
regulated by the laws of rations, and subJect to no other
limitations.8
The other factor driving the Monroe doctrine was the
Latin American "Age of Emancipation", which began in 1821
based upon the U.S. and French revolutionary models. With
the fledgling Latin American Republics separating from
Spain, they were potentially easy prey for other European
powers, especially France. The Americans had not sufficient
naval power to enforce the idea of the "separate sphere",
but were able to get the British to go along with the idea
and to subsequently ward off French western hemispheric
ambitions through the Provisions of the British - French
Poligniac Agreement. John Quincy Adams wisely counseled
Monroe to make his edict concerning the separate spheres a
unilateral one despite the collusion with Britain.9 In a
separate action without congressional approval, Monroe
conducted a ruthless war with pirates in the Caribbean which
involved shore landings on Spanish Territory. The policy,
albeit risky, was effective from the stand-point of
Caribbean security.10
During the administration of President Tyler steps
were taken to protect so called "inchoate interests" of the
United States in Texas without legislative approval. Tyler,
awaiting Senate ratification of the Texas Annexation Treaty,
signed on April 12, 1844, gave his assurance to Texas
commissions on May 15, 1844 that he would, as Commander in
Chief of the U.S. Armed Forces, defend Texas against foreign
invasion. The Senate protested this executive agreement as
an usurpation of the legislative war function, but to no
avail.11
In 1845 President James Polk restated the Monroe
Doctrine in his inaugural address in order to discourage
suspected British ambitions toward possession of Mexican
owned California. When the Annexation of Texas was
approved, Polk ordered General Zachary Taylor into disputed
territory between the Nueces and Rio Grande Rivers to repel
possible invaders,instigating a Mexican Army attack on
Taylor's force, following which Polk asked congress for
antecedent recognition that a state of war with Mexico
existed. The congressional war declaration which followed
set a precedent in presidential initiation of war through a
defensive fait accompli. The "spoils" of the Mexican war
included the Mexican Cession of present day Arizona, New
Mexico, and California. With the later addition of the
Oregon Territory following an 1846 agreement with the
British, and the Gadsden Purchase from Mexico in 1853 the,
present day U.S. continental boundaries were secure,
fundamentally altering the course of American foreign police
to a preoccupation with the U.S. Civil War, the events
surrounding the war, and the reconstruction period
following the war. In the 1890's economic conditions of
would shift the American political debate to foreign trade
and potential foreign territorial acquisition.
Tyler's "inchoate agreement" with the Texans and Polks
subsequent fait accompli making inevitable the Mexican War,
represent actions which involved Americans in a war at the
direction of one man with no legislative accountability. It
is precisely the parallel between the fait accompli of the
Mexican War and the perceived fait accompli represented by
the Gulf of Tonkin incident in Vietnam which underlie the
congressional concerns represented by the host of
contemporary legislation aimed at limiting the president in
warmaking. Though initially supportive, many questioned the
morality of the Mexican War because of the circumstances
surrounding its initiation. Civil War Union Army Commander
and U.S. President Ulysees S. Grant would claim the U.S.
Civil War to be God's judgement against America for it's
methods in Mexico. Future President Abraham Lincoln, a whig
member of the U.S. House of Representatives, following the
war declaration voted with the majority, 85-81 in a House
resolution condemning the war as unnecessarily and
unconstitutionally initiated by President Polk.12 Vocally
criticizing the war for its initiation despite the absense
of an apparent threat, Lincoln demanded to know the exact
spot where the armed forces clashed.13
But Polk's pursuit of territory in fact was security
oriented in the same fashion as the Louisiana Purchase of
Thomas Jefferson, and, more importantly, was popularly
motivated. The national attitude of the period included a
public belief that it was a God given American destiny to
occupy the continental landmass from coast to coast. This
attitude was named by newspaper editor John L. O'Sullivan,
"Manifest Destiny".
Ironically, in light of Lincoln's criticism of Polk, he
took drastic and unprecedented, almost dictatorial
prerogative measures with the outset of the civil war. With
the congress out of session Lincoln mobilized the militia,
declared a blockade of southern ports (the legal equivalent
to a declaration of war), suspended writs of habeus corpus,
and declared martial law. Using a corroborative opinion of
Attorney General Edward Bates Lincoln claimed the necessity
of the situation required swift and bold action "whether
strictly legal or not and, further, that he felt congress
would "readily ratify" his actions. The Prize cases later
confirmed the constitutional legality of Lincolns actions.
Later in the war, following the Battle of Antietam and
Union General McClelland's failure after a tactical victory,
to destroy the Confederate Army, Lincoln's Jan. 1, 1863
Emacipation Proclamation freed black slaves in the States of
the Confederacy by executive order as the Commander-in-
Chief. Though never legally challenged,14 when questioned
by a reporter in 1864 concerning the discretion authority
exercised in excess of strict Constitutional powers, Lincoln
penned this famous response, now entitled "The Prerogative
View".
Executive Mansion, April 4, 1864
My dear Sir: You ask me to put in writing the
substance of what I verbally said the other day in your
presence, to Governor Bramlette and Senator Dixon. It
was about as follows:
"I am naturally antislavery. If slavery is not wrong,
nothing is wrong. I cannot remember when I did not so
think and feel, and yet I have never understood that
the presidency conferred upon me an unrestricted right
to act officially upon this judgment and feeling. It
was in the oath I took that I would, to the best of my
ability, preserve, protect, and defend the Constitution
of the United States. I could not take the office
without taking the oath. Nor was it my view that I
might take an oath to get power, and break the oath in
using the power. I understood, too, that in ordinary
civil administration this oath even forbade me to
practically indulge my primary abstract judgment on the
moral question of slavery. I had publicly declared
this many time's, and in many ways. And I aver that, to
this day, I have done no official act in mere deference
to my abstract judgment and feeling on slavery. I did
understand, however, that my oath to preserve the
Constitution to the best of my ability imposed upon me
the duty of preserving, by every indispensable means,
that government-that nation, of which that Constitution
was the organic law. Was it possible to lose the
nation and yet preserve the Constitution? By general
law, life and limb must be protected, yet often a limb
must be amputated to save a life; but a life is never
wisely given to save a limb. I felt that measures
otherwise unconstitutional might become lawful by
becoming indispensable to the preservation of the
Constitution through the preservation of the nation.
Right or wrong, I assume this ground, and now avow it.
I could not feel that, to the best of my ability, I had
even tried to reserve the Constitution, if, to save
slavery or any minor matter, I should permit the wreck
of government, country, and Constitution all together.
When, early in the war, General Fremont attempted
military emancipation, I forbade it, because I did not
then think it an indispensable necessity. When, a
little later, General Cameron, then Secretary of War,
suggested the arming of the blacks, I objected because
I did not yet think it an indispensable necessity.
When, still later, General Hunter attempted military
emancipation, I again forbade it, because I did not yet
think the indispensable necessity had come. When in
March and May and July, 1862, I made earnest and
successive appeals to the border states to favor
compensated emancipation, I believed the indispensable
necessity for military emancipation and arming the
blacks would come unless averted by that measure. They
declined the proposition, and was, in my best
judgment, driven to the alternative of either
surrendering the Union, and with it the Constitution,
or of laying strong hand upon the colored element. I
chose the latter. In choosing it, I hoped for greater
gain than loss; but of this, I was not entirely
confident. More than a year of trial now shows no loss
by it in our foreign relations, none in our home
popular sentiment, none in our white military force -
no loss by it anyhow or anywhere. On the contrary it
shows a gain of quite a hundred and thirty thousand
soldiers, seamen, and laborers. These are palpable
facts, about which, as facts, there can be no caviling.
We have the men; and we could not have had them without
the measure.
"And now let any Union man who complains of the
measure test himself by writing down in one line that
he is for subduing the rebellion by force of arms; and
in the next, that he is for taking these hundred and
thirty thousand men from the Union side, and placing
them where they would be but for the measure he
condemns. If he cannot face his case so stated, it is
only because he cannot face the truth."
I add a word which was not in the verbal
conversation. In telling this tale I attempt no
compliment to my own sagacity. I claim not to have
controlled events, but confess plainly that events have
controlled me. Now, at the end of three years'
struggle, the nation's condition is not what either
party, or any man, devised or expected. God alone can
claim it. Whither it is tending seems plain. If God
now wills the removal of a great wrong, and wills also
that we of the North, as well as you of the South,
shall pay fairly for our complicity in that wrong,
impartial history will find therein no cause to attest
and revere the justice and goodness of God.15
The strength of Lincoln's precedent is substantial as
detailed in this description:
Between 1789 and 1861, presidents regarded their
role as commander-in-chief as purely military in nature.
Faced with a civil war, however, President Abraham Lincoln
began to expand the presidential war power beyond that
original concept. He found constitutional justification for
the exercise of broad discretionary by fusing the powers of
the commander-in-chief with the executive's general
coonstitutional responsibility to take care that the laws
are faithfully executed. The national emergency of
secession and war, Lincoln said, required the swift and firm
exercise of extraordinary powers by the chief executive.
In two world wars in the 20th century, Presidents
Woodrow Wilson and Franklin Roosevelt took a similar view of
presidential war powers as they further expanded the sphere
of those powers in wartime.16
With the post civil war presidents the executive
experienced its weakest period in U.S. history.17 Some
foreign policy initiatives were attempted to expand the U.S.
domain: President Grant, certain that great benefit would
befall the United States with acquisition of Santo Domingo
(The Dominican Republic) submitted a treaty of annexation in
1870. The treaty was defeated in the Senate but Grant both
pending the Senate vote and afterwards, in the hope of
renegotiating after a congressional study, deployed the U.S.
Navy to defend U.S. "inchoate interests" against invasion
pursuant to the presidential treaty making power. The
Senate debate which resulted demonstrated the futility of
attempting to limit the president's protective function to
the merely the repelling of invasion or immediate physical
attack.18 Santo Domingo was never annexed but the commander
in chief power remained unchallenged in Grant's employment
of the Navy.
The Presidency began to come back into the primacy
enjoyed under the first presidents in the 1890's when
another corollary to the Monroe Doctrine was added in 1893
through President Grover Cleveland's squaring off with Great
Britain and insisting on U.S. arbitration of the Venezuelan-
British Guyana border dispute, despite a U.S. Navy woefully
inadequate to back up any threat of force.19 Fortunately,
for Cleveland and the nation, the British were involved with
the German supported Boers in South Africa and, having in
the process cultivated some international ill will, could
not afford to lose the U.S. as an ally. The British got
their way despite Cleveland's bluster, but U.S. national ego
soared as a result of this successful ultimatum to British
naval power inspired by Secretary of State Richard Olney.20
The Olney corollary to the Monroe Doctrine expanded the
U.S. sphere of influence in Latin America as an honest
broker for European disputes occurring within the Western
Hemisphere.21 Robert Ragazzo opines Cleveland's "moralism"
with the British was a gross distortion of the Monroe
Doctrine expanding its meaning well beyond the original
intent, but the Olney Corollary was a clear statement of
executive prerogative in foreign policy.22
In election of 1896 imperialism vs anti-imperialism was
a pivotal campaign issue, one which would shape the course
of the nation and the role of the executive. William
Jennings Bryan, the anti-imperialist candidate lost and the
imperialist point of view, essentially represented by
William McKinley and the ideas of the "New Manifest Destiny"
won the presidency. After a year in office, yielding to
public and congressional pressure to annex Cuba from the
declining Spanish empire, Mckinley used the sinking of the
USS Maine in Havana Harbor as a pretext to send to congress
his war message against Spain. For his action Mckinley was
roundly criticized by former President Cleveland, who had
resisted similar congressional pressure - "the country
cannot go to war without the president". When Admiral Dewey
attacked the Spanish Fleet in Manila Harbor, The Phillippine
Islands, his easy and decisive victory yielded the United
States a colonial empire including Puerto Rico, The
Phillippine Islands and Guam. Cuba became a protectorate
and Hawaii was subsequently annexed as a naval coaling
station. With a Pacific empire to defend, and U.S. economic
interests in the Pacific emerging the role of the U.S.
presidency was forever changed with the addition of the
increased defense and foreign affairs responsibilities of
the United States as a global power. McKinley ended the war
through an executive agreement and proceeded to shore up
U.S. interests in the far east through other executive
agreements, such as the Boxer Indemnity Protocol and the
"open door notes" guarateeing Chinese sovereignty and great
power spheres of influence within that country for trade
purposes. He also sent troops to China to protect the
American legation during the Boxer Rebellion.23
The advent of navalism in the United States beginning
in the late 19th century in concert with the newly acquired
U.S. Pacific holdings combined to focus President Theodore
Roosevelt's attention upon the construction of a
Transisthmian canal across the neck of Central America as an
economy of force measure, allowing limited naval shipping to
defend either Pacific or Atlantic coasts as well as the
Pacific territories. The canal had been thought necessary
for continental naval defense since the Mexican Cession of
1848 immediately followed by the statehood of California in
1849. When Colombia asked too high a price for canal real
estate, Roosevelt initiated a revolution, quickly recognized
the independent State of Panama, provided U.S. Marine
protection to the new government, and negotiated a
satisfactory treaty, all with no congressional approval.23
Authorized in the Naval Construction Acts at the turn
of the century and complimenting the U.S. Panama Policy, a
strong U.S. fleet stood ready to protect the Canal Zone and
the Carabbean approaches. In 1904 President Theodore
Roosevelt issued his famous corollary to the Monroe
Doctrine, which proclaimed U.S. responsibility for Latin
American debts owed to European nations, even at the expense
of U.S. forcible intervention on the European's behalf.24
The Roosevelt Corollary was a response to the international
law of the early 20th century which recognized the legality
of nations forcibly collecting their debts. A key to
understanding the many U.S. interventions of the period, its
purpose was essentially to prevent European pretexts for
intervention in an area geopolitically vital to the U.S..
Announced after the election in 1904, the necessity for the
pronouncement followed a 1902 incident between Germany and
Venezuela, in which Venezuela defaulted on her debts and a
German, British, Italian task force blockaded the Venezuelan
coast, sank several gunboats, and bombarded a coastal fort.
Concerned mainly with German intentions in the region, U.S.
deployment of the Caribbean fleet persuaded arbitration by
the Europeans.25
Soured by the memory of sending the Army to occupy Cuba
following the Spanish American war and to the Phillipines to
extinguish the Phillipine Insurrection in the aftermath of
the Spanish American War, Roosevelt favored using the Navy
and its Marine detachments to achieve the limited military
objectives necessary to maintaining U.S. interests inthe
Caribbean. Use of Naval Forces was also politically safer
than dispatching an occupying army.26 During the time frame
of the Roosevelt administration the British Navy
relinquished its role in the Caribbean in order to meet the
nascent naval expansion of Germany. The United States could
no longer secure her Caribbean interests under the umbrella
of Pax Brittanica. The Roosevelt Corollary, to the Monroe
Doctrine like the Olney which preceded it, represented a
significant expansion beyond the original meaning of the
Doctrine. However, the basic rationale of hemispheric
security was consistent.
Roosevelt appoached the presidential office with what
he called "The Stewardship Doctrine":
My view was that every executive officer, and above all
every executive officer in high position, was a steward of
the people bound actively and affirmatively to do all he
could for the people, and not to content himself with the
negative merit of keeping his talents undamaged in a napkin.
I declined to adopt the view that what was imperatively
necessary for the nation could not be done by the president
unless he could find some specific authorization to do it.
My belief was it was not only his right but his duty to do
anything that the needs of the nation demanded unless he
could find such action was specifically forbidden under the
Constitution or by the laws.... I did not usurp power, but I
acted for the public welfare, I acted for the common well-
being of all our people, whenever and in whatever manner was
necessary, unless prohibited by direct constitutional or
legislative prohibition .... 27
Roosevelt's successor, William Howard Taft, encouraged
U.S. businesses to invest heavily in Latin America and then
employed the Navy and Marines to protect American captial
under the "American lives and property" rationale. This
policy, known as "Dollar Diplomacy", was more meddlesome in
world opinion than Roosevelt's "big stick. Dollar
Diplomacy sowed immense ill will and encouraged the anti-
Yankee perception that U.S. Marines intervened to protect
American business pure and simple. The true significance of
the geopolitical connection often tended to get lost.
Taft, who later became Chief Justice of the Supreme
Court, in contrast to Roosevelt, held what he called a
"Restricted View of the Office":
The true view of the executive, is, as I conceive it,
that the president can exercise no power which cannot be
fairly and reasonably traced to some specific grant or
justly implied and included within such express grantas
proper and necessary to its exercise. Such specific grant
must be either in the federal Constitution or in an act of
congress passed in pursuance thereof.28
The contrast between Roosevelt and Taft is remarkable,
mirroring the fundamental nationalist/whig dichotomy in
questions of government addressed at the Constitutional
Convention. Generally speaking presidents with the
stewardship or prerogative view fair better in the
historical treatment they receive. For example, who
appplauds the James Buchanans and the Herbert Hoovers for
their restricted view of the office in the face of clear and
pressing national exigencies? On the other hand the two
Roosevelts, Lincoln, Wilson and Truman are lionized. And
presidents like Polk and McKinley at least command respect.
The downfall of Lyndon Johnson and particularly the demise
of Richard Nixon might be considered a revolution in
American thinking about the heroic image of prerogative
presidencies. Arthur Schlesinger Jr's 1973 book, The
Imperial Presidency seems to indicate so.
The protection of the Panama Canal and the Carribbean
against German ambitions toward the Caribbean in World War I
was the rationale for the many Latin American interventions
undertaken at the direction of President Woodrow Wilson.
Several Wilsonian interventions, including Haiti, Santo
Domingo, and Nicaraugua involved long term occupations, even
complete takeovers of government by Naval and Marine
Officers. This practice turned Roosevelts limited objective
logic for using Naval Forces on its head. (Banana Wars)29
Wilson, more idealistic and less pragmatic than either
Roosevelt or Taft, objected to business playing such a
strong role in U.S. Latin American policy. Ironically, with
his crusading attitude, he intervened militarily in the
Caribbean more than any other president.30 The Wilson Plan,
implemented with the Haitian intervention in 1915, was to
"teach these Latin American's to elect good people. The
concern then, as in the present day, is not only a fair
election, but a fair election that elects the "right
people", people not averse to democracy, stability, and U.S.
security interests.31 Despite the hegemony of Wilson's
actions the occupations accomplished the security of the
Caribbean against German naval power during World War I at a
relatively small cost in military manpower and national
treasure.
In one of the largest Latin American interventions
prior to World War I, Wilson ordered U.S. troops to Mexico
both in pursuit of bandits across the southern U.S. border
and in a landing at Vera Cruz during Mexico's revolution and
her subsequent search for stable and democratic government.
As World War I in Europe also engulfed the United States and
American troops entered the conflict in 1917, Wilson sought
and obtained from Congress comprehensive delegations of
power to prepare for war and to mobilize the home front.
During the war, Wilson managed the nation's economy by
delegating power to a series of war management and war
production boards created to coordinate domestic production
and supply. "It is not an army that we must shape and train
for war, Wilson explained; "it is a nation."
Wilson commandeered plants and mines; he requisitioned
supplies, fixed prices, seized and operated the nation's
transportation and communications networks, and managed the
production and distribution of foodstuffs. The Council of
National Defense, an umbrella agancy created by Wilson,
administered the economy during the war. Wall Street broker
Bernard Baruch, who headed the War Industries Board, became
the nation's virtual economic dictator. The board had no
statutory authority whatsoever; Wilson simply created it
under his authority as commander in chief.
Wilson's exercise of the war power went unchallenged by
the Supreme Court. In part, this was the result of Wilson's
obtaining prior congressional al for all his actions.
Issues that raised constitutional questions, moreover,
reached the court only after the armistice, when they no
longer possessed urgent significance. All three branches of
the government seemed to assume that the broad powers
exercised by Lincoln during the Civil War carried over for
use in foreign wars.
The delegation of legislative power by Congress to the
president reached unprecedented heights during World War I.
Many statutes simply stated their general objectives and
left it to the president to interpret those goals and
administer the measures he felt necessary to achieve them.
Modern day executive departments operate under the same
general mandates in peacetime. When the Senate attempted to
form a watchdog committee to oversee management of the war
Wilson opposed the measure as a check on his leadership.
The House of Representatives then killed the proposal.
The closest the court came to questioning executive war
power during World War I came with its 1921 decision
declaring unconstitutional a portion of the Lever Food
Control Act unconstitutional. The Lever Act provided for
federal control of the distribution and production of
foodstuffs and the marketing of fuel. The bill subjected
the nation's economy to whatever regulations the president
mandated to guarantee Allied victory. It authorized the
president to license the manufacture and distribution of
foodstuffs and to seize factories and mines to ensure
continued production of defense-related commodities.
Section 4 of the act made it a criminal offense to charge
excessive prices for commodities. The court invalidated
that section of the law because it set no ascertainable
standard of guilt, failed to define unjust or unreasonable
prices, and was therefore in conflict with the
constitutional guarantees of due process of law and of
adequate notice to persons accused of crime regarding the
cause of the charge against them.32
In an act rejecting U.S. great power responsibility and
presidential initiative after the Armistice, several
powerful senators, called irreconcilables, including William
Borah and Henry Cabot Lodge, orchestrated the defeat of the
Versailles Treaty, causing the war settlement in Europe to
be less then fair and, some critics contend, fomenting World
War II twenty years later. The United States fell into a
state of familiar isolationism and a naive foreign policy
which included laws passed with blind hopes of eliminating
war: the Kellog Briand Act and the Neutrality Acts.
Convinced that it had been dragged into the Great War
by arms merchants and allies, the nation legislated its
disillusions of Neutrality Acts during the 1930s. These
forced the president to announce U.S. neutrality when other
nations fought, prohibited arms sales to belligerent States,
banned travel by U.S. citizens on belligerent ships, and
allowed belligerents to buy commodities like raw materials
on a cash and carry basis only (The Johnson Act of 1934
had already prohibited loans to countries with outstanding
World War I debts - just about all of Europe.)33
The concept of expanded presidential powers in wartime,
tested in the civil war and expanded upon in World War I
with congressional approval, underwent their greatest
expansion during the 3 terms of President Franklin
Roosevelt. With the emergency of the Great Depression
Roosevelt's New Deal programs employed emergency measures
only experienced during the Civil War and World War I. The
Supreme Court was initially nonsupportive of many of these
actions, because of their domestic content.
When the rise of fascist dictators in Japan, Germany,
and Italy changed the national focus, Roosevelt circumvented
the Neutrality Acts of 1935, 1936 and 1937 by committing the
U.S. to a neutrality weighted toward Great Britain against
the expansionist fascists. Declaring emergencies in 1939
and 1941 Roosevelt assumed almost dictatorial powers in his
prosecution of the war effort. By executive agreement on
Sept. 3, 1940, he traded 50 U.S. destroyers for long term
leases on six British Western Hemispheric bases. Roosevelt
called those who advocated congressional approval
"legalists".34 He ordered the occupation of Iceland and
Greenland in 1941, and without public knowledge on April 24,
1941 instructed U.S. ships in the Atlantic in Hemispheric
Defense Plan No.4 to trail Axis vessels and aircraft and
broadcast their positions every four hours.35 Later, on Oct
11, 1941 Hemispheric Defense Plan No.5 was ordered without
public knowledge. Its guidance was: "The operations which
will be conducted under this plan are conceived to form a
preparatory phase for the operation of Navy basis War Plan
No.5". the Plan for open and declared war. Executing this
order American surface combatants engaged German submarines
on several occassions, sometimes provocatively. Roosevelt
hoped to gain a congressional declaration of war from one of
these naval confrontations but did not sense a climate
politically favorable to do so. Consequently, the attack by
the Japanese on Pearl Harbor on 7 Dec. 1941 only finalized
U.S. entry into the war Roosevelt had incrementally moved
the nation toward through Presidential prerogative.36
Woodrow Wilson's management of the economy during World
War I lessened reservations constitutional about broad
federal war power. When the U.S. entered the Second World
War, Congress again delegated vast federal powers to the
president to prosecute the war. Roosevelt and Congress
developed a partnership to win the war with the legal
assumption that war powers exercised by Lincoln and Wilson
carried over to the new emergency. The Supreme Courts view
on executive power was different, however, in 1936 took a
more Lockean view of presdential authority in affairs
external to the state. A war between Paraguay and Bolivia
and an embargo Roosevelt placed on arms shipments evoked one
of the most extensive Supreme Court precedents concerning
presidential plenary power in foreign affairs:37
Congress on May 24, 1934, approved a joint
resolution that authorized President Roosevelt to embargo
these arms shipments if, in his judgment, an embargo would
contribute to ending the war. The resolution provided for
fines and imprisonment, or both, forthose who violated the
embargo. Roosevelt signed the resolution into law May 28,
1934. The resolution in no way restricted or directed his
discretion in instituting the embargo.
Roosevelt soon declared an embargo in effect.
Curtiss-Wright Export Corporation and two other
companies were subsequently convicted of selling
aircraft machine guns to Bolivia in violation of the
embargo. They challenged the constitutionality of the
resolution, arguing that it was an improper delegation
of congressional power to the president.
The Supreme Court already had envinced sympathy
for such challenges, striking down several major New
Deal initiatives in 1936 on that basis.
The Curtiss-Wright Decision
The court upheld the embargo resolution. The vote
was 7-1. Justice Harlan Fiske Stone took no part in
the case. Justice James McReynolds dissented.
Justice George Sutherland's opinion, written for
the majority, upheld sweeping executive powers in
foreign affairs. The majority distinguished between
external and "internal" powers of the federal
government - foreign policy and domestic policy. Based
on his reading of the historical evidence and on his
own previous studies of the foreign affairs power,
Justice Sutherland concluded that the source of
national authority in foreign relations was the British
crown, not the separate state. This placed the foreign
affairs power on an extra-constitutional footing
different from that of the internal powers which passed
from the states to the federal government.
Sutherland's opinion elaborated on the theory of
external sovereignty argued in 1795 by Justice William
Paterson. Sutherland wrote:
The broad statement that the federal
government can exercise no powers except those
specifically enumerated in the Constitution, and
such implied powers as are necessary and proper to
carry into effect the enumerated powers, is
categorically true only in respect of our internal
affairs. In that field, the primary purpose of
the Constitution was to carve from the general
mass of legislative powers then possessed by the
states such positions as it was thought desirable
to vest in the federal government, leaving those
not included in the enumeration still in the
states... That this doctrine applies only to
powers which the state had is self-evident. And
since the states severally never possessed
international powers, such powers could not have
been carved from the mass of state powers but
obviously were transmitted to the United States
from some other source.
As a result of separation from Great Britain
by the coionies, acting as a unit, the powers of
external sovereignty passed from the Crown not to
the colonies severally, but to the colonies in
their collective and corporate capacity as the
United States of America.... Rulers come and go;
governments and forms of government change; but
sovereignty survives. A political society cannot
endure without a supreme will somewhere.
Sovereignty is never held in suspense. When,
therefore, the external sovereignty of Great
Britain in respect of the colonies ceased, it
passed to the ......... It results that the
investment of the federal government with the
powers of external sovereignty did not depend upon
the affirmative grants of the Constitution. The
powers to declare and wage war, to conclude peace,
to make treaties, to maintain diplomatic relations
with other sovereignties, if they had never been
mentioned in the Constitution, would have vested
in the federal government as necessary
concomitants of nationality.
Sutherland then, echoing John Marshall's
phrases, asserted the key role in foreign affairs for
the president:
... The President alone has the power to speak as a
representative of the nation. He makes treaties
with the advice and consent of the Senate; but he
alone negotiates. Into the field of negotiation
the Senate cannot intrude; and Congress is
powerless to invade it.
It is important to bear in mind that we are here
dealing not alone with an authority vested in the President
by an exertion of legislative power, but with such an
authority plus the very delicate, plenary and exclusive
power of the President as the sole organ of the federal
government in the field of international relations - a power
which does not require as a basis for its exercise an act of
congress, but which...must be exercised in subordination to
the applicable provisions of the Constitution.38
The Curtis Wright Decision, sometimes disputed by
opponents of presidential power, acknowledges the awesome
plenary powers in foreign affairs which the executive would
exercise in the U.S. assumption of global Power after World
War II.
The Lend-Lease Act of March 11, 1941, granted Roosevelt
the power to enter into executive agreements to manufacture
in government arsenals or "otherwise procure" defense
articles and "to sell, transfer, exchange, lease, and lend
those war materials to the governments of any country deemed
vital to the defense of the United States." More
interestingly, however, Roosevelt prior to lend lease had
unsuccessfully used his persuasive skills to convince the
public of the need to take national action against facist
Germany and Japan.39
To deal with congressional intransigence Roosevelts'
use of executive agreements made that procedure a primary
instrument and nearly replaced the treaty making power
because of its effect. The force of law accruing to
executive agreements was upheld in the cases of U.S. vs
Belmont and U.S. vs Pink, both rulings concerning Franklin
Roosevelts secret recognition of the Soviet Union prior to
U.S. entry into World War II.40
Roosevelts expansive use of presidential authority and
prerogative have set the pace for the modern presidency.41
With the advent of the U.S. - Soviet Cold War between 1945
and 1947, a permanent state of emergency underlay
presidential authority in National Security.42 Multilateral
treaty making engaged the U.S. in the coalition defense of
the Western world. But executive agreements, many of them
secret, facilitated the control and direction of foreign
policy. John Foster Dulles, Seretary of State under
Eisenhower, in 1953 estimated 10,000 executive agreements in
connection with the NATO treaty alone. The NATO treaty was
also cause for the deployment by executive order of U.S.
forces which remain in Europe today. It is important to
note, however, that many executive agreements are
legislatively authorized.43
President Truman unilaterally entered the Korean war in
1950, six months after the communists took power in China,
basing his action on a U.N. Security Council Resolution.44
He might have based it upon the NATO treaty of 1949 since
the Korean invasion was perceived as a prelude to a Soviet
thrust into Western Europe.
Presidents Eisenhower, Kennedy, and Johnson received
initial congressional carte blanche for their foreign
policies because of the state of permanent emergency caused
by global communist agression and later heightened by
advances in Soviet nuclear capabilities. Eisenhower
received Congressional approval to defend the Nationalist
Chinese Government on Taiwan and to block Communist
aggression in the middle east resulting in the 1958
deployment of Marines to Lebanon.
President Kennedy, during the Cuban missile Crisis of
1962, obtained a joint resolution authorizing him to prevent
the spread of communism in the Western Hemisphere, by force
if necessary. After Kennedy's assassination, and the war in
Indochina involved the U.S. increasingly more, President
Johnson responded to a reported patrol boat attack on U.S.
destroyers in the Gulf of Tonkin by requesting and receiving
congressional passage of the Gulf of Tonkin Resolution,
which he would rely upon as congressional legitimation of
his ensuing war effort there. The resolution read, in part,
...the United States is...prepared, as the President
determines, to take all necessary steps, including the
use of armed force, to assist any member or protocol
state of the Southeast Asia Collective Defense Treaty
requesting defense of its freedom.
The vote in support of the Southeast Asia Resolution (Tonkin
Gulf) was 88-2 in the Senate and 416-0 in the House.45
Certainly, Johnson could have deployed troops to Vietnam
without congressional sanction but he had learned from
Eisenhower's experience in Lebanon about the political value
of such sanction.
Eisenhower ordered a CIA directed covert operation to
help overthrow a communist government in Guatemala in 1954,
beginning the use of unconventional measures to enforce the
Monroe Doctrine, which like the global Containment Policy
took on an anticommunist twist. The success of the
operation convinced Ike of the economy and efficiency of
such operations, making them the operation of choice in the
3rd World from that time on, especially in Latin America. 46
President Johnson employed U.S. ground forces against a
communist threat in Latin America, when he dispatched 22,000
troops to the Dominican Republic in 1965. This action
contravened the nonintervention provisions of Franklin
Roosevelt's Good Neighbor Policy of 1933. His rationale for
intervention was to prevent another Cuba. President Reagan
would take a similar prerogative in the 1983 Grenada
operation. Both of these involvements carried the
multilateral sanction of allied neighboring countries.
Concentration of power in the presidency has been
evolutionary depending upon historical circumstances of war,
military threat or emergency for their expansion. Until
Lincoln, and the U.S. civil war presidents viewed their
commander-in-chief role as military in nature. By fusing
the commander-in-chief power with the executive power to
meet various national exigencies, Lincoln initiated the use
of extraordinary prerogative which would later reemerge in
the same, or stronger form under later presidents,
especially Wilson and Franklin Roosevelt. These two
presidents operationalized the total control of the nation
in global war efforts. The power they added to the
presidential repetoire became available to post World War II
presidents when the nuclear age and the threat of global
communism thrust the nation into a perpetual state of
emergency. These powers carried into the Cold War, as
Roosevelt had revolutionized the national government and the
presidency, and they were available to the presidential
office during Vietnam.
As detailed in Chapter 2 the consensus supporting the
freehand of presidents collapsed beginning with the decision
of Richard Nixon to extend the Vietnam War another four
years, a decision which, given the public opposition to U.S.