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Formal Power And Prerogative: The Presidency And National Security

Formal Power And Prerogative: The Presidency And National Security


CSC 1988


SUBJECT AREA National Security














Major Fergus Paul Briggs


United States Marine Corps Reserve


9 May 1988









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







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




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






.... 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



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




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



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






Chapter 2










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




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




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




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



To Hamilton a weak executive meant weak ineffective



"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




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


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,






"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





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




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











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




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




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




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





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




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







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




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.