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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

 

 

 

 

 

 

FORMAL POWER AND PREROGATIVE: THE PRESIDENCY AND NATIONAL

 

SECURITY

 

 

By

 

Major Fergus Paul Briggs

 

United States Marine Corps Reserve

 

9 May 1988

 

 

 

TABLE OF CONTENTS

 

Page

 

 

Chapter 1 Introduction: "The Sharing of Power......... 1

 

Chapter 2 The Presidential Roots: Colonial,

Early National, and Constitutional

Overviews.................................... 23

 

Chapter 3 Presidential Authority: Definition

by Precedent................................. 51

 

Chapter 4 Congressional Reform, Pluralism,

Oversight of the President, and National

Security..................................... 83

 

Chapter 5 The Elite Divergence, The Mass Public,

and Presidential Leadership in

National Security........................... 105

 

Chapter 6 Summary..................................... 123

 

Notes ............................................ 126

 

Bibliography ............................................ 137

 

 

 

 

Chapter 1

 

INTRODUCTION

 

THE SHARING OF POWER: CHANGING RELATIONSHIPS

 

 

Who makes national security policy is not an idle

question for academic debate. How we answer that

question in practice determines the American capacity

to act in the world. That, in turn, affects not only

our ability to ensure the survival and security of the

United States, but also our capacity to affect the

future of world events.1

 

 

 

Former U.S. National Security Advisor Zbigniew

 

Brezezinski's remarks before the Federalist Society

 

"Symposium on Foreign Affairs and the Constitution" on 6

 

November 1987 evoke the fundamental topic of this paper. To

 

what degree do the executive and legislative branches share

 

the formulation and execution of U.S. national security

 

objectives; and to what means is the president as chief

 

executive and commander-in-chief limited as America's

 

primary agent of responsibility for the defense of the

 

republic and its allies? Since the Spanish-American War,

 

especially in the era following The Great Depression and

 

World War II, the executive branch, personified in the

 

president, is the focal point of national politics both

 

domestic and foreign. Correspondingly, within the

 

international context, the American post-World War II global

 

role magnifies executive branch responsibility in the

 

presidential roles of chief diplomat and commander in chief.

 

Following VJ Day in 1945 the increased peacetime

 

presidential authority underlying the U.S. Status as a

 

superpower was publicly accepted as a necessity until the

 

Vietnam War when the president's ability to set a coherent

 

course for national security to complement the U.S. role was

 

challenged by legislative limitations and by public

 

questioning of America's contemporary great power

 

responsibilities.

 

The challenges to presidential foreign policy power are

 

grounded within the pluralistic principles of U.S.

 

government with its separation of powers, within the

 

inherent constitutional ambiguities regarding the boundaries

 

between specific executive and legislative powers, and

 

within the interbranch sharing of certain powers such as the

 

warpower and the treaty power. A reading of the U.S.

 

Constitution shows a blending of foreign policy and war

 

making powers between the two branches. Counterposed to the

 

specific presidential powers of treaty making, commander-in-

 

chief of the armed forces, and all the powers of national

 

sovereignty not specified as congressional, the legislative

 

branch has the war declaration power, treaty ratification

 

power in the Senate, and the power of the purse originating

 

in the House of Representatives, which is ancillary yet

 

fundamental to policy implementation. The diffusion of

 

powers and policy functions contributes an adverse political

 

dimension to the pervading interbranch Constitutional

 

struggle over foreign policy. How this dimension is viewed

 

depends upon the point of view: Principled advocates of

 

strong presidential authority, such as Dr Brzezinski and

 

others contend the scales have shifted in the direction of

 

the legislative branch in the past fifteen years.2

 

Principled opponents of a strong presidency in foreign

 

affairs suggest that since 1950 "revisionist contentions"

 

concerning the power of the presidency in foreign affairs

 

wrongfully justify presidential power in terms of the

 

Constitution within the following categories: prerogative

 

powers, executive power, the commander-in-chief power,

 

foreign affairs power, and the precedents of preceding

 

presidential office holders.3 With the Watergate scandal of

 

President Richard Nixon and the American failure in Vietnam

 

as catalysts for increased congressional oversight of the

 

president, the traditionally fluid relationship between

 

branches experienced during the Cold War period is

 

increasingly adversarial, polarized, and characterized by

 

heated deliberation and sometimes political paralysis on the

 

major foreign policy questions of the day.

 

Advocates of presidential primacy in national security

 

policy suggest the legislative branch has overstepped its

 

proper constitutional role. William Bradford Reynolds, U.S.

 

Assistant Attorney General Civil Rights Division, complains

 

of congressional encroachment on presidential foreign policy

 

turf:

 

 

 

.... in the field of foreign relations, we have seen

since the Vietnam experience an increasingly assertive

congress, intruding broadly into the execution of

American foreign affairs through improper use of the

appropriations power, its determination to declare war,

and its advice and consent to treaties, among other

powers. But the recent story is less one of genial

constitutional power sharing than of determined

encroachment upon the powers of the executive in the

international field - encroachment that has taken its

toll on American efficacy and prestige abroad and the

bipartisan spirit that long attended foreign policy

matters at home.

 

 

 

Whether the bipartisan consensus of the Cold War

 

mentioned by Brad Reynolds was an historical aberration or

 

not, the constitutional framers understood the transcendent

 

importance of national unity in foreign relations as

 

underscored by James Madison's admonition that if we are to

 

be one nation in any respect, it ought to be in respect to

 

other nations. Unity and decisiveness in the international

 

realm dictates both a strong national government and the

 

vesting of executive authority in a single President.4

 

Clearly, World War II propelled the United States to

 

its position as senior partner in freeworld coalition

 

defense and, along with it, elevated the president to a more

 

dominant role in warmaking. The centrality of the president

 

as a commander is conconstitutionally mandated and made

 

possible by the speed and centralization of modern

 

communications means available for presidential control of

 

the U.S nuclear deterrent defense. Presidential command

 

authority, public expectation, and command and control

 

capability combined encourage involvement of the president

 

in command decisions formerly made at lower levels. Martin

 

Van Creveld shows that president between 1946 and 1975 was

 

involved in 144 of 200 crises, though the actual need for

 

his services occured in only 44 of those instances.5 The

 

Constitutional questions raised by these presidential

 

command responsibilities in global defense are increasingly

 

studied. But the framers' intent is sufficiently ambiguous

 

to cover all contingencies, resulting in differing

 

interpretations and biases among scholars concerning whether

 

the executive or legislature is supreme in warmaking and

 

foreign policy.

 

Presidential advocates contend the commander-in-chief

 

powers and the framers' substitution of the words "declare

 

war" instead of "make war" in the Article I congressional

 

powers illustrates a broad intent within the Constitution

 

for vigorous executive power in this area. Historical

 

precedent further defines this intent. By 1967, presidents

 

had unilaterally sent troops or arms abroad 132 times

 

compared to five times with congressional declaration of war

 

and 62 times with congressional approval short of war.

 

Recent presidencies show a continuation of the command

 

decision tradition with the Mayaguez rescue, the aborted

 

hostage rescue mission to Iran, the liberation of Grenada,

 

the air raid on Libya, the sale or provision of arms to

 

Iran, Nicaraugua, and Afghanistan, and the current naval

 

escort operations in the Persian Gulf. Also, when compared

 

to only 1,000 Senatorially ratified formal treaties, the

 

several thousand executive agreements with foreign

 

governments during the nation's history further demonstrate

 

the breadth of presidential discretion or prerogative in

 

national security affairs.6

 

One of the lessons of Vietnam is that sweeping

 

presidential authority cannot routinely withstand strong

 

public opposition. As President Kennedy stated: "The

 

President is rightly described as a man of extraordinary

 

powers. Yet it is also true he must exercise those powers

 

under extraordinary limitations". The president is powerful

 

when the citizenry allows him to be, and the public

 

consensus in the modern era is quioxtic. Dr Brzezinski

 

assesses the contemporary dearth of public consensus in

 

national security policy and the political dimension of the

 

interbranch competition between president and congress for

 

primacy in foreign affairs as resulting from five factors:

 

 

 

1. The collapse of bipartisanshipin the second half of

the forty year period of U.S. global power.

Bipartisanship meant both branches shared common

assumptions in contrast to the alternative partisan

conceptions of foreign policy in the post Vietnam era

reflecting differing views about American values, about

exercise of power, about threats to national security,

and about national priorities.

 

2. Americans tend to confuse strategy with tactics,

failing to define strategic priorities, failing to

differentiate central from peripheral fronts in the

struggle against Soviet hegemony, and allowing tactics

to dominate strategic considerations in both the

executive and legislative branches of government.

 

3. Inadequate consultation occurs between executive and

legislature in the area of strategic thought. The

National Security Council could promote a constructive

dialogue, but is institutionalized as a presidential

advisory group which does not formally appear before

congress and incurs incriminations from a turf

conscious State Department if informal congressional

liaisons occur. Unfortunately, the State Department's

diplomatic role is but one component of foreign policy

which by necessity also includes military power,

intelligence, covert activity, financial power, and

threat assessment; areas of clearly deficient expertise

at State.

 

4. The nature of modern warfare has compressed the time

available for critical decision making. The prospect

of nuclear conflict exacerbates the executive

relationship with congress and further concentrates

command and control in the hands of the President. The

time for deliberation in a larger forum is often

absent.

 

5. The need for covert operations and the requirement

for secrecy in these operations creates a security

dilemma when consultation between executive and

legislature is undertaken. Leaks jeopardize

operational success and destroy the cooperation

necessary to integrate covert activity into the

national strategy.7

 

 

 

One political outcome of the post Vietnam legislative-

 

executive struggle, The Warpowers Act of 1973, serves as a

 

symbol for a host of legislation in the 1970's limiting,

 

overseeing, and proscribing the boundaries of presidential

 

authority in national security policy. The Warpowers Act

 

raises genuine political problems not properly solved by

 

legislation.8 Mr. Reynolds, reflecting the Reagan

 

Administration point of view, feels the law is a circuitous

 

assertion of congressional authority and is a highly

 

questionable statutory reallocation of fundamental executive

 

discretion from the standpoint of the Constitution.9 The

 

"flipside" of the Warpowers Act is its explicit recognition

 

of presidential authority to initiate hostilities, a

 

concession which those who read the Constitution strictly

 

would never warrant.10

 

President Ford, the first U.S. chief executive forced

 

to operate within the War Powers Act provisions, and whose

 

views have been echoed by all subsequent presidents,

 

believes the law unconstitutional, impractical, and a

 

constraint on the President's effort to acheive or maintain

 

peace.11 His strongest objection is the requirement to

 

withdraw troops from hostilities after 90 days if Congress

 

simply fails to approve the deployment.

 

 

 

"If the Congress is mired in indecision or inaction or

lacks courage or guts - if you want to call it that -

to do anything, it can do nothing and acheives the same

result as if they had ordered it by majority vote in

both the House and the Senate."12

 

 

 

The Supreme Court decision in Immigration and Naturalization

 

Service vs Chadha rules legislative vetos unconstitutional,

 

and will in all probability, overule the automatic 90 day

 

troop withdrawal provision, should the Warpowers Act ever

 

face a Supreme Court test.

 

Ford, a congressman from Michigan before becoming

 

president after the resignations of Vice President Spiro

 

Agnew and President Richard Nixon in 1974, recounts alot of

 

difficulty in locating congressional leaders for

 

consultation in times of crisis. The inadequacy of

 

deliberative bodies such as legislatures to make command

 

decisions is particularly acute in situations where no clear

 

public support mobilizes toward objectives and requirements.

 

To cite a current example, despite U.S. naval presence

 

there since 1949, during the Persian (Arabian) Gulf

 

situation of 1987-88, congress debated at length whether

 

naval escort operations of American flagged Kuwaiti tankers

 

was a proper role for U.S. military forces. Refusing to

 

accept presidential initiative and autonomy in command

 

decisions, congress was unable to legislate quickly enough

 

to control the rapidly evolving and dangerous situation.

 

The naval role was brought to public attention in the Fall

 

of 1987 by an accidental Iraqi missile bombardment of the

 

destroyer U.S.S. Stark. Split on the wisdom of invoking the

 

Warpowers Act, the congress voted instead on two bills

 

neither giving clear policy direction, but each

 

incorporating some kind of presidential reporting

 

requirement as an oversight mechanism. Secretary of

 

Defense, Casper Weinberger recounted his conversations with

 

three U.S. Senator concerning these two bills:

 

 

 

Senator Bumpers states, "The resolution is carefully

designed to do nothing." Senator Weiker says "Its

better to do something than nothing. Senator Pryor

says, "I don't know what we're doing." This is not a

signal of resolve.!13

 

 

 

The major shortcoming of congress as a deliberative body

 

competing with the president in decisions concerning the

 

employment of forward deployed U.S. forces is best put by

 

president Ford: "There can be only one Commander in

 

Chief".14

 

As mentioned, although the Warpowers Resolution enjoys

 

the most notoriety, it is only one of several congressional

 

actions aimed at reigning in presidential national security

 

prerogative in the wake of Watergate and Vietnam.

 

In highlighting some of the major legislation, it is

 

essential to briefly review the dynamic relationship between

 

the legislative and executive branches. A more extensive

 

treatment follows in chapter 3. The nature of American

 

interbranch relations shifted from one characterized by

 

congressional dominance to one characterized by presidential

 

dominance with the global extension of the interests after

 

the Spanish American War in 1898. The development of a

 

public presidency commencing with Theodore Roosevelt

 

initiated the routine practice of modern presidents of

 

circumventing congress by appealing to popular support and

 

pressuring legislative approval of, or acquiescence to,

 

presidential initiatives. Teddy Roosevelt's machinations

 

behind the revolution seizing the Panama Canal Zone from

 

Columbia in 1903 illustrate the point.15 When viewed from

 

the perspective of 20th century presidential government, the

 

legislation of the 1970's, like the Senate's revocation of

 

the Versailles treaty after World War I, seems a

 

congressional attempt at turning back the clock to the

 

nineteenth century legislative/executive power ratio, when

 

iimited America foreign policy interests allowed a stronger

 

congressional role and a more benign presidency

Critics of wide ranging presidential discretion often

 

overlook the great amount of authority ceded to the

 

executive branch by congressional statute because of

 

inadequecies in the legislative process. These legislative

 

cessions were of vast scope especially during wartime and

 

during the New Deal programs of the Great Depression.

 

Conversely, congressional assertion of power in the 1970's

 

and 80's is arguably the result of congressionally perceived

 

presidential abuses or excesses.

 

From the time when President Jefferson transferred

 

funding authorizations for frigates to purchase coastal

 

vessels, president have maintained the executive power to

 

impound transfer, and reprogram funds. Because of repeated

 

congressional failures to develop an effective centralized

 

budgetary process, the 1921 Budgeting and Accounting Act

 

surrendered to the president the express legislative power

 

of budget formulation through the Bureau of the budget and a

 

presidentially appointed Director of the Budget. Later in

 

1933 in an executive order following the passage of the

 

Emergency Recovery Act, president Franklin Roosevelt moved

 

the director from Treasury to the executive office as part

 

of the organizational reforms of the Brownlow Commission.

 

He also further expanded the function of the bureau to one

 

of legislative clearance of the budget. In 1970, President

 

Nixon reorganized the bureau into the Office of Management

 

and Budget, further centralizing executive control of the

 

federal pursestrings, and to expand the role of the agency

 

in budget preparation and legislative clearance, he added

 

program assessment.16

 

The unraveling of presidential power in budgetary

 

concerns began when Nixon's command prerogative in the

 

unpopular Vietnam conflict, and the implicit belief of

 

presidents that congressional budget passage grants

 

legislative sanction of presidential actions, led congress

 

to reclaim a stronger budgetary role. Specifically,

 

congress opposed Nixon's transfer of 255 million in economic

 

and military assistance to Cambodia after the 1970 U.S.

 

incursion into that country to destroy North Vietnamese Army

 

sanctuaries.17 Later, as a result of Nixon's impoundment

 

of ten billion dollars in Office of Economic Opportunity,

 

funds and six billion dollars in water pollution control

 

funds, enactment of the Budget Reform and Impoundment

 

Control Act of 1974 placed procedural restrictions upon the

 

president's fiscal discretion. Among the provisions is a

 

legislative veto of transfers or impoundments through joint

 

resolution. Also, to check the president's Office of

 

Management and Budget and assume stronger policy oversight,

 

the Budget Reform and Impoundment Control Act created the

 

Congressional Budget Office and congressional budget

 

commitees superimposed upon the existing appropriations

 

committees and taxation commitees in both houses. This

 

measure restored stronger legislative influence by

 

reestablishing congressional budgetary competition with the

 

president, but significantly slowed the budget cycle through

 

the lengthy deliberative process engendered.

 

Habitually, beginning each fiscal year, congress runs

 

the nation on continuing resolutions while engineering a

 

compromise budget bill acceptable to a majority coalition.18

 

To underscore the inefficiency of the appropriations process

 

and lobby for a presidential line item veto, President

 

Reagan mocked congress in his 1988 State of the Union

 

Address by displaying the heavy and cumbersome FY 88

 

Appropriations Bill and the subsequent compromise bill while

 

admonishing members to expedite the process in future

 

budgets. Additionally, though more procedural than

 

substantive, a 1974 amendment to the Budget and Accounting

 

Act of 1921 requires Senate confirmation of the powerful

 

Director of The Office of Management and Budget.19

 

Nothing has the universal effect on all policy areas

 

like the federal budget and the fiscal policy it

 

represents.20 The presidency in the 1970's lost its

 

monopoly on the control of budgetary and program information

 

along with the power and flexibility that such a monopoly

 

carries with it.

 

Even before the reform legislation, the power of

 

puree was a "long suit" for congress in influencing policy.

 

Using their appropriation power during the Vietnam conflict,

 

congressional constraints on the president included measures

 

to limit widening the war to neighboring countries, despite

 

the problem of persistant attacks by the North Vietnamese

 

Army from neutral sanctuaries in Laos, Cambodia, and

 

Thailand. In 1970 the Defense Appropriations Act prohibited

 

financing the introduction of U.S. ground combat troops into

 

Laos and Thailand.21 Using his command prerogative,

 

President Nixon continued to bomb Laos and accomodated the

 

troop restriction by substituting mercenary and CIA equipped

 

paramilitary forces.22 In 1971, in response to Nixon's

 

transfer of foreign assistance funds to prosecute operations

 

in Cambodia previously mentioned, the Cooper-Church

 

Amendment to the supplemental appropriation to the Foreign

 

Assistance Act forbade financing of U.S. ground combat

 

troops, or providing U.S. advisors to, or for, the Cambodian

 

military forces in Cambodia. Circumventing the intent if

 

not the letter of this provision, the Nixon administration

 

tasked military equipment delivery teams to advise the

 

Cambodian field commanders.

 

In the face of stiff congressional opposition Nixon

 

also continued bombing of the sanctuaries in Laos and

 

Cambodia. Attempts by antiwar legislators to stop the

 

bombing, such as the Gravel Amendment to a defense

 

procurement bill, and the Proxmire Amendment to a defense

 

appropriations bill were defeated until after the Paris

 

Peace Accords between the United States and North Vietnam

 

had been signed and American combat involvement in Indochina

 

had ended.23

 

In total, Congress took 113 role call or teller votes

 

between 1966 and July 1973 (94 occured during the Nixon

 

years alone) upon legislation to limit or end U.S. combat in

 

Indochina. Defeated were the most drastic "end the war"

 

amendments such as the Hatfield-McGovern Amendment to the

 

Military Procurement Act of 1971, proposing to cut funding

 

for all military operations, save the orderly withdrawal of

 

U.S. troops. Using a different approach, the Mansfield

 

amendment to the Defense Procurement Authorization Act of

 

1972 dictated in a broad statement of policy the termination

 

of all military operations in Indochina, and the withdrawal

 

of all U.S. military forces at the earliest possible date.

 

Though the Mansfield Amendment never faced a Supreme Court

 

test, Nixon viewed the amendment an unconstitutional

 

exercise against the commander-in-chief power because it set

 

policy for forces in the field.

 

Nixon refused to announce a withdrawal date or to

 

negotiate under the congressional procedures.24 Later,

 

facing the prospect of a general congressional resolution

 

limiting presidential warpowers, the first attempted War

 

Powers Act, Nixon signed a bill accepting a cutoff of future

 

operational funding to Indochina. Despite Nixon's

 

acquiesce, largely as a result of the disputes over the

 

operations in Laos and Cambodia, congress passed the War

 

Powers Resolution in the Autumn of 1973 over Nixon's veto.

 

Passage of the Warpowers Act, at the time Nixon was

 

embroiled in the Watergate scandal, and the Yom Kippur War

 

crisis in the Middle East, is testimony to the political

 

weakness to which Nixon had fallen. The inopportune timing

 

demonstrates the extreme congressional discontent caused by

 

their inability to control Nixon's command prerogative, in

 

the prosecution of the Indochina conflict.

 

Another piece of presidentially restrictive

 

legislation, the National Emergencies Act of 1976 targeted

 

the huge amount of unrevoked emergency power legislatively

 

authorized the President, especially since the Great

 

Depression in the 1930's. Below is described the vast scope

 

of emergency laws:

 

 

 

Emergency powers have permitted a president to control

the economy, regulate imports and exports, impose

rationing, intervene in labor disputes, freeze wages

and prices, suspend civil liberties, impose censorship,

and otherwise control the information the free press

can publish.25

 

Presidents have been far more willing to declare

emergencies than to end them, so emergency periods and

the laws operative in them typically have lasted many

years beyond the end of the original emergency.26

 

 

 

For example, using a dated but unrevoked congressional

 

emergency grant, Woodrow Wilson approved the arming of

 

merchant ships prior to the U.S entry into World War I.

 

Similarly, during the Cuban Missile Crisis, John Kennedy

 

froze Cuban assets in U.S. banks using a statute passed

 

during the Korean War. Concerned not so much with the fact

 

of emergency powers as with the nontermination of latent

 

presidential authority existing beyond the period of the

 

emergency, the National Emergencies Act places limitations

 

upon emergency powers and allows a legislative veto of

 

emergency declarations through concurrent resolution. The

 

effect or the bill is to leave the 470 existing emergency

 

acts in place (congress cannot revoke them because they

 

originate from presidential declarations), but to limit

 

executive prerogative in declaration of national emergencies

 

in so far as the president must inform congress of emergency

 

actions through a formal entry in the Federal Register and

 

the congress must meet every six months to reconsider the

 

necessity of the emergency. The president, under this law,

 

may declare a state of emergency to run for a year,

 

renewable upon 90 days notification to congress. This is a

 

significant lessening of a formerly almost unlimited

 

prerogative.27

Another major area of executive prerogative in national

 

security affairs since the end of World War II, the

 

unfettered authority to conduct covert activities given the

 

President by the 1949 amendment to the National Defense Act

 

of 1947, was checked by the 1974 Hughes Ryan Amendment to

 

the Foreign Assistance Act. Hughes Ryan responded to

 

congressionally perceived abuses in CIA operations which in

 

the 1970's contributed to the overthrow of Chile's communist

 

president Salvatore Allende. The law requires the President

 

deliver a Scope Paper detailing the size, cost, and purpose

 

of each covert activity. Until the Reagan Administration,

 

it also prohibited the CIA from utilizing funds for covert

 

operations, limiting the agency to intelligence collection

 

activities only. As an additional control mechanism during

 

the Carter administration, the House and Senate established

 

inteiligence oversight commitees empowered to demand

 

information, review budgets, subpoena information and

 

require testimony from the intelligence establishment

 

through the Director of Central Intelligence. The

 

congressionally perceived urgent need for legislative review

 

of intelligence community operations was spurred in part by

 

the Watergate burglars use of CIA voiceboxes, burglar tools,

 

and disguises, all in the name of national security.28

 

Unfortunately, the effect of bringing congress "into the

 

know" on covert actions is the compromise of some operations

 

and the blockage of others by hostile legislators who

 

threaten to leak operational information. In many cases the

 

result has been to confuse the need for oversight with a

 

need for congressional consensus in secret operations.29

 

To regulate the President in foreign arms sales,

 

congress amended section 36 of the Foreign Military Sales

 

Act requiring executive notification to congress of military

 

sales in excess of $25 M, later amended downward to $7 M.

 

Congress can disapprove any regulated sale by concurrent

 

resolution within 30 days, unless there is an emergency such

 

as the 1973 Yom Kippur War in which Israel was aided.30

 

From a commander-in-chief perspective, security assistance

 

funds are a cornerstone of the Containment Policy, offering

 

the president the capability to respond flexibly to third

 

world low intensity conflicts around the golbe.

 

Congressional strictures in this area prevent prudent,

 

timely, and economical measures to support U.S. allies, as

 

exemplified in the detailed language limiting the

 

construction of airfields and roads in Honduras in recent

 

security assistance bills.

 

With the war in Vietnam in progress, the Senate in 1969

 

passed a William Fulbright sponsored resolution to limit

 

presidential executive agreements by forbidding binding

 

national commitments to use military force on behalf of

 

another country unless commited by means of treaty, statute,

 

or concurrent resolution of both houses of congress.

 

President Nixon successfully defended executive orders,

 

establishing U.S. military basing in Spain and Portugal and

 

claiming that a congressional resolution could not strip an

 

executive order of its legally binding effect in the case of

 

Spain; nor could it in the case of Portugal require an

 

executive agreement's formalizion by treaty .

 

The Case Act of 1972 goes a step further, requiring the

 

reporting of secret executive agreements, one of which

 

congress felt responsible for their "being had" in the Gulf

 

of Tonkin incident and for their near unanimous resolution

 

to enter the Vietnam War (Congress rescinded the Gulf of

 

Tonkin Resolution in 1971).31 From the legal standpoint the

 

presidential practice of secret executive agreements was

 

determined constitutional by the Supreme Court in U.S. vs

 

Belmont, upholding Franklin Roosevelt's diplomatic

 

recognition of the Soviet Union prior to U.S. entry into

 

World War II.32

 

In 1976, determined to keep the U.S. out of an "African

 

Vietnam", congress passed the Clark Amendment to the

 

International Security Assistance and Arms Export Control

 

Act to prohibit the use of V.S. funds for military

 

operations in Angola, unless approved by joint resolution.33

 

Years later, during the Reagan Administration, Congress,

 

recognized the error of a flat ban on covert aid to Angola,

 

and acknowledged that the Cuban Soviet surrogates had not

 

departed the country within a year as the bill's proponents

 

had promised. The law was repealed to allow limited support

 

to UNITA rebels under Jonas Savimbi. Another outcome of the

 

Clark Amendment experience is the legally circumspect

 

wording of the Boland Amendments of the 1980's, which sought

 

not to restrict the president, but only the intelligence

 

community, from supporting the democratic resistance in

 

Nicaraugua.34 The congressional intent of these amendments

 

is a central issue in the criminal prosecution of former

 

National Security Advisor William Poindexter and National

 

Security Assistant Oliver North, defendants in the Iran -

 

Contra affair. Both men were members of the executive

 

branch, not the intelligence community. Iran-Contra was

 

investigated under the Special Prosecutor Act, a legacy of

 

the Watergate scandal authorizing congress to investigate

 

allegations of criminal misconduct independent of the

 

Justice Department. The constitutionality of this law is

 

heatedly debated.

 

From this brief overview one can surmise as Dr.

 

Brzezinski does:

 

 

 

Congress is more involved, more central in the shaping

of national security policy. This has resulted from a

variety of factors, but it is a fact of life.... 19

 

I mention this to highlight the fact that over the last

fifteen years a pattern in executive-legislative

relations has developed which does create serious

difficulties. These cannot be finally resolved by

legislation or formal agreements. Repealing the War

Powers Act would not solve the problem . Alone, that

would not automaticalLy restore a proper balance. The

difficulty arises not from a deficiency in the

statutes. It is instead a political problem. What is

needed is a process of political accommodation and

adjustment that takes into account the global

circumstances of the United States and political

realities at home.35

 

 

 

The purpose of this paper is to the sources of presidential

 

power and to analyze the political problems of the

 

presidency in U.S. national security policy originating from

 

two sources: One, the nature of U.S. political institutions

 

mandated in the Constitution with its eighteenth century

 

liberal view that tyranny is best avoided through the

 

separation of powers and its countervailing checks and

 

balances. Edwin Corwin alludes to this feature of the U.S.

 

Constitution as establishing "an open invitation to

 

struggle".36 The expansion of pluralistic, interest group

 

norms in the national security bureaucracy and congress

 

increases the number of participants in the struggle. The

 

conflict between the president's national security

 

responsibility and the modern regime values of participatory

 

democracy are covered in chapter 4. The other political

 

problem is the post-Vietnam public attitude and competing

 

belief systems which question the propriety of U.S. great

 

power responsibility in world affairs. These attitudes,

 

mirrored in the neoisolationist congressional approach to

 

national security policy and, arguably, even that of the

 

Department of Defense, are discussed in chapter 5. Next,

 

chapter 2 will analyze the colonial, early national, and

 

constitutional background of the presidential office, with

 

emphasis on the Commander-in-Chief and foreign policy

 

functions. Following that, Chapter 3 traces the evolution

 

of power which resides in the modern presidential office.

 

In this introduction is outlined the major legislative

 

restrictions on presidential power resulting from the

 

Vietnam War and the Watergate scandal. The overall scope

 

of the paper is simply political analysis of presidential

 

power and executive prerogative in national security policy

 

with emphasis on the political environment in the modern

 

era.

 

 

 

Chapter 2

 

 

THE PRESIDENTIAL ROOTS: COLONIAL, EARLY NATIONAL, AND

 

CONSTITUTIONAL OVERVIEWS

 

 

 

 

Gaining a meaningful perspective upon current issues

 

surrounding the presidential power in national defense and

 

foreign affairs requires a study of the basis for unity in

 

the presidency emanating from American colonial U.S. early

 

national, and U.S. Constitutional history.

 

 

 

The invention and establishment of the American

Presidency took place over an almost twenty year

period, between the years 1775 and around 1795. During

this time a variety of factors and influences shaped

American political thought. No one explanation

suffices. The excesses and deficiencies of legislative

government caused people to reconsider the executive

institutions they had earlier rejected. Thus the

British crown and even the detested royal governors

served as models. The example set by General George

Washington provided another. The framers learned also

from the crucial experiences of trying to make their

new governments work both at the state level and under

the (Articles of) Confederation. Finally, the writings

of political theorists, historians, and legal scholars

informed them as they went about the practical work of

devising a new national government.

 

Some of the dreamers of the day dreamed dreams of

an entirely new form of government, one led and

organized only by legislators who would constitute

representative government. But both history and

experience pointed to the need for a single executive

who would complement legislative policymaking. Thus

separate institutions, a presidency included, were

agreed upon; separate institutions that would share

various policy and rulemaking powers necessary to make

a large growing nation work. The challenges of

governance and leadership encouraged first the design

and then the functioning of a strong executive.

Considerable debate and uncertainty existed at first.

With George Washington elected and in office for

awhile, however, the shape of the institution became

increasingly clear. The presidency continues to evolve

today, but its creation and chief characteristics were

plainly cast in the last quarter of the eighteenth

century. Unique, dangerous, yet necessary, the

creation or invention of the American presidency was

one of the most important acheivements of the

Constitutional Convention. A brilliant fusion of

theory and experience, and a major political gamble,

the American presidency served us well for our first

two hundred years.1

 

 

 

In the forgoing summary Thomas Cronin capsulizes the

 

historical currents underlying the American chief executive

 

concept. A thorough analysis of presidential power and

 

executive prerogative had its anchor in the rudimentary

 

intellectual and experiential millieu of revolutionary

 

America and the initial experience as a nation.

 

Using the Declaration of Independence of 1776 as a

 

statement of foreign policy, the American founding fathers

 

succeeded in winning independence against three tyrannies:

 

kings, courts, and parliaments. The most significant

 

perceived tyranny was that of the King of England, George

 

III, who through his royal governors, and supported by acts

 

of a budget conscious Parliament, taxed the colonies in the

 

Stamp Acts and the Townshend Act in order to pay colonial

 

expenses which were an increasing drain on the Royal

 

Treasury. Though approved by parliament, the colonists

 

interpreted these measures as kingly taxation without due

 

process, contrary to the democratic control in British

 

taxation matters instituted by Oliver Cromwell.

 

Consequently, the colonists saw themselves as Englishmen

 

whose rights were abridged because of their colonial status.

 

Calling the King "The Royal Brute of Britain", Thomas

 

Paine's written aspersions, indicative of his somewhat

 

demogogic didain for authority, crystallized the emotion

 

mobilizing a large percentage of American colonists toward

 

independence, and symbolized the negative public attitude

 

regarding executive power in government.2

 

When relieved from the governmental template imposed by

 

the British Crown during the American Revolution, the

 

colonial popular assemblies were free to concoct methods of

 

controlling their executives. With the exception of New

 

York, this control included a diversity of provisions to

 

subordinate government to the legislative bodies; the

 

legislature was supreme. The Continental Government

 

operated for five years with no Constitution or documentary

 

authority until the ratification of The Articles of

 

Confederation in 1781. Originally proposed as a so-called

 

Council of State the Articles of Confederation provided a

 

weak executive to assume limited functions. But the

 

Continental Congress, regarded the semantics of the word

 

"council" as connoting excessive central power and

 

substituted the weaker name "Commitee of States".

 

Deficient both executive and unified power, the initial

 

presidency both before and under the articles served as a

 

presiding officer and a delegate with terms of one year and

 

eligibility to serve one year in three.3 Continuity or

 

duration in office was obviously considered a liability and

 

not an asset. From the First Continental Congress in 1774

 

to the 1st session of the Second Continental Congress in

 

1789, fourteen presidents served terms averaging only a year

 

each. Of these early presidents John Hancock holds,

 

perhaps, the most renown for his presiding over the

 

Declaration of Independence, to which is boldly affixed his

 

famous signature. The pre-constitutional presidents

 

comprise a portion of the conceptual and experiential base

 

for the constitutional framers as noted by Richard Morris:

 

 

 

Since these presidents exercised the first glimmerings

of executive power under the central government, and

since six presidents preceded the actual formation of

executive departments, their role foreshadowed, however

dimly, the presidency under the federal constitution,

which assumes a separation of powers unknown to the

congress of the pre-confederation or the confederation

years. Whatever authority the president exercised

emerged out of the necessities of the case and rested

on slight legal foundation, but what they did and how

they did it depended in no small measure on their

personalities, their own conception of their roles in

office, and the political situation which confronted

the respective incumbents.4

 

The personality dependence of power in the early presidency

 

illustrates the paucity of presidentiai authority absent

 

express legal grounding and longevity of term.

 

The Congress of Confederation, as it was called under

 

the Articles, was structured similar to the Continental

 

Congress, with a unicameral body of between two and seven

 

delegates from each state elected every three years by each

 

state's legislature.5 It served executive as well as

 

legislative functions, appointed a committee of states to

 

manage affairs of union while the congress recessed, and was

 

empowered to create commitees to conduct the national

 

business. Inadequate to perform the executive tasks, but

 

opposed to central authority, congress assigned the

 

portfolios of foreign affairs, war, navy, and treasury to

 

committees rather than individuals. When the committees

 

exhibited shortcomings in unity of effort, congress

 

compromised its preference for commitees by appointing

 

secretaries of the various departments as replacements.6 A

 

symbol of legislative primacy in the national scheme prior

 

to the Constitution, the United States government was known

 

as "The Congress" until 1781, when, with the advent of the

 

Articles of Confederation, the name was changed to "The

 

United States in Congress Assembled". Though vastly

 

different in substance, The Articles of Confederation are

 

the national predecessor to the U.S. Constitution,

 

representing the "American learning curve" regarding the

 

necessity for a strong central government.

 

Supremacy of states over the national government under

 

the Articles of Confederation was the major feature of the

 

early federal structure deriving from the colonial period

 

when only two of the charter colonies were allowed a

 

popularly elected governor, thereby making the popular

 

assemblies integral to colonial self-expression as a check

 

against the royal governor and his power of absolute veto.

 

Royal governors, though not in every case appointed by the

 

king, were always answerable to him and not to the popular

 

assemblies. The importance of the popular assemblies as an

 

outlet for grievances was magnified by the restriction of

 

franchise to property owners only. When the royal governors

 

dissolved the mandated popular assemblies per the terms of

 

the colonial charter, the colonists devised their own

 

representative assemblies connected by an informal national

 

network.

 

Virginia, in 1774, initiated the Committees of

 

Intercolonial Correspondence in response to the 1773 British

 

Coercive Acts. In successive steps the First Continental

 

Congress of 1775 was originally proposed by the Virginia

 

Committee of Correspondence, and the Continental Congress,

 

in turn, legitimized the provincial congresses by calling

 

for their creation and for the drafting of their

 

constitutions prior to the Declaration of Independence.

 

With representative government effectuated despite its

 

dissolution by the royal governors, Americans viewed their

 

homegrown assemblies favorably, believing sovereignty to

 

reside in the people and their representatives; whereas

 

central government and executive power experienced under the

 

royal governors were each synonymous in the colonial mind

 

with monarchy, tyranny, and the usurpation of popular

 

sovereignty.

 

In reaction to the British colonial rule, the first

 

state constitutions provided a skewed balance between the

 

branches by subordinating the executive to the legislature.

 

The governors in all states, except New York, Rhode Island,

 

and Connecticut, were elected by the legislature and the

 

latter two were strongly subordinated to the legislature.

 

Terms of office were one year, except for New York and

 

Delaware where terms lasted three years, and South Carolina,

 

where it ran two years. Governors had neither final veto

 

power, power to adjourn the legislature, nor extensive, if

 

any, appointive power.7 To ensure diffusion of authority

 

Pennsylvania, Delaware, New Hampshire, and Massachusetts

 

substituted an executive council for the office of

 

governor.

 

A model for the U.S. Constitution, the constitutional

 

government of New York State benefited from the negative

 

experience of governmental fragmentation in the other states

 

and, not least of all, upon a dangerous military situation

 

within the state during the Revolutionary War, necessitating

 

the features of unity and continuity in the governor's

 

office. Shaping the New York executive design were a group

 

of pro-active conservative thinkers, including John Jay and

 

Gouverneur Morris, who would later form the nucleus of

 

nationalists, or federalists, in the 1787 Philadelphia

 

Convention. Favorably impressed with the success of New

 

York's chief executive, Massachusetts replaced its plural

 

executive with a single governor.8

 

The adoption of the Articles of Confederation in 1781,

 

was an initial move to codify federal governmental

 

relationships initiated in part through the ascendance

 

within the Continental Congress of the nationalists, whose

 

expansive vision of the nation's future was interwoven with

 

their fidelity to the cause of a strong national government.

 

The nationalists included Alexander Hamilton, James Madison,

 

Gouverneur Morris, James Duane, John Jay, and Robert Morris,

 

among others. The influence of these men initiated an

 

extraordinary shift in public philosophy toward support of a

 

more positive government characterized by central authority.

 

This differed markedly with the main tenets of the American

 

Revolution opposing monarchy and authoritative national

 

power. Those opposed to strong national government were

 

among the notable patriotic heros of the American

 

Revolution, including whigs, or traditional republicans like

 

Samuel Adams, Richard Henry Lee, and Patrick Henry.

 

The nationalists advocated not only strong central

 

power, but broad discretionary power in the national

 

government, especially the executive branch. For them the

 

meaning of republicanism had evolved since the Revolution,

 

and the concepts of "civic virtue" and liberty were defined

 

in new ways particular to an emergent science of politics

 

which was capable of accomodating democracy, not only in

 

small polities of agrarian composition, but in a larger

 

extended republic of commercial enterprise. The whigs, or

 

traditional republicans, also called "antifederalists"

 

during the Constitutional ratification maintained weak

 

central power with strictly interpreted limited powers were

 

fundamental to individual liberty. In their opinion, the

 

Philadelphia Convention, by deviating from a mere

 

modification of the Articles of Confederation to the

 

drafting of a new a constitution, betrayed the republican

 

principles of the Revolution, lacked civic virtue, and

 

ignored the basis of liberty in favor of a politics devoted

 

to the pursuit of riches and glory.9

 

The divergence of philosophy between the two early

 

national competing schools of American republican thought

 

have flavored the nation's political culture for more than

 

two hundred years with their divergent viewpoints concerning

 

the limits of presidential power and the role of national

 

government. While the American Civil War solved through

 

violent means the smoldering issue of state nullification of

 

national sovereignty, the questions surrounding the limits

 

of executive prerogative are a recurring source of

 

discussion and argument.

 

In September, 1780, after the nationalists gained a

 

prevailing political influence in the Continental Congress,

 

Alexander Hamilton wrote a letter to fellow New Yorker James

 

Duane prescribing a nationalist agenda in which he proposed

 

the Articles of Confederation, then in drafting, authorize a

 

rational power to tax and make war. Because Hamilton felt

 

the power of the purse the essence of governmental power, he

 

advocated that the states provide perpetual funds to

 

congress, reasoning that high taxes are the mark of a free

 

people because:

 

 

 

"The obedience of a free people to general laws, no

matter how hard they bear are ever more perfect than

the obedience of slaves to the arbitrary will of the

Prince."

 

To Hamilton a weak executive meant weak ineffective

government:

 

"In our case the problem is that the common sovereign

will not have power sufficient to unite the separate

parts together and direct the common forces to the

interest and happiness of the whole."10

 

 

 

When the states did not expressly agree to authorize

 

national taxation, the Articles of Confederation were

 

approved minus the taxation power. Hamilton subsequently

 

argued for the discretionary power to tax consonant with a

 

power implied, in his view, by national sovereignty in the

 

prosecution of a war. His rationale was that undefined

 

powers are limited only by the object for which intended.

 

The idea of discretionary powers as the axiom of all

 

political power, or a principle from which all subsequent

 

reasoning descends, was later spelled out in The Federalist

 

Papers # 31 during the Constitutional ratification debates

 

and is fundamental to an understanding of executive

 

prerogative.11 Having failed to persuade the states on the

 

taxation issue, and the Continental Congress on the

 

propriety of discretionary taxation, Hamilton proposed

 

strengthening the Articles through a constitutional

 

convention in order to overcome the disunity and the

 

corresponding national weakness existing in the governmental

 

structure.

 

An illustration of the truth in Hamilton's premise that

 

taxation is the source of government power unfolded with the

 

creative scheme to finance the Continental Army during the

 

Revolution. Lacking a national treasury and the coercive

 

power to develop one, Revolutionary War finances depended

 

upon the voluntary graces of the states. To rectify the

 

absence of central revenue raising, the Continental Congress

 

appointed the independently wealthy Robert Morris to the

 

post of Financier. Enlisting his credit to secure

 

governmental financing, the Continental Congress gave Morris

 

absolute discretion in purchasing foreign goods and ceded to

 

him many congressional functions such as controlling loans

 

and assuming authority for all national appointive offices,

 

with the exceptions of General Washington and the Secret

 

Service. In executing his official duties, Morris added to

 

his personal fortune and enjoyed vast personal fiat in

 

government, unequivocally demonstrating the logic of

 

Hamilton's position vis-a-vis the power of the purse and its

 

relationship to power and efficacy.

 

With the American victory at the Battle of Yorktown on

 

19 October 1781, revolutionary hostilities with the British,

 

in essence, ended. The prospect of peace, although ten

 

years in the making, struck a blow to the nationalists who

 

felt the continuance of the conflict necessary for the

 

nation to acquire both the habit of paying taxes and the

 

vigor and confidence to provide a common defense.

 

Gouverneur Morris summarized nationalist sentiments:

 

 

 

"War is a ride wet nurse to infant states. States

either die or grow vigorous."12

 

 

 

Nationalist frustration was increasingly evident in a

 

political misjudgement which occured during the peace

 

negotiations. While awaiting the Treaty of Paris,

 

eventually signed on 3 September 1783, disgruntled

 

Continental Soldiers, garrisoned in Newburg, New York,

 

petitioned congress for their pay with a veiled threat of

 

insurrection. Alexander Hamilton, Robert Morris, and

 

Gouverneur Morris saw in "The Newburg Conspiracy" a

 

political opportunity to force national taxation. On his

 

own, Hamilton recklessly endorsed the endeavor to the

 

delight of his political opponents, the traditional

 

republicans. The episode climaxed when the conspirators

 

invited George Washington to become their military dictator

 

and the General responded with a reprimand, ending the

 

episode and temporarily dashing the aspirations of those who

 

favored national taxation.

 

At the Revolution's ending the limited impetus for

 

coalition among states represented by the common British

 

enemy was lost and the Continental Congress was rendered

 

useless, as it could hardly function. Nine of thirteen

 

states were the quorum to conduct business; but the real

 

political leadership, resident in the state legislatures,

 

was disinterested to the point of seldom sending

 

representatives to the national assemblages.

 

Depending on the point of view, the years 1783 to 1788

 

were either a critical period for the United States because

 

of the weak central government, or, as the traditional

 

republicans claimed, the nationalists magnified the problems

 

of the day to justify a stronger national government.

 

Among the substantial problems were: rampant inflation in

 

the Continental paper currency, British banning of American

 

ships from the West Indies, and British restrictions to

 

trade. The British also refused to remove troops from the

 

northwest garrisons under the valid justification that

 

nonpayment to British concerns of private debts incurred

 

prior to the war's outbreak violated the Treaty of Paris.

 

Because of deficient national coercive power in the federal

 

relatiorship, some states passed laws actually impeding the

 

collection of these pre-war British debts. When congress

 

sent John Adams as emissary to England to protest the

 

continued manning of the British garrisons in the northwest,

 

the nonexistent American military backing left the British

 

completely unconcerned.

 

Beside the private debt problem, the provision

 

requiring unanimous consent of the states for raising

 

nationai revenue resulted in the nonpayment of the national

 

war debt. The fledgling nation's economic difficulties

 

acceleraLed when, in Spain, John Jay failed to negotiate

 

American rights of navigation on the Mississippi River, and

 

both Britain and Spain embargoed trade, forcing The United

 

States further into post war recession.

 

Because of the ominous economic nationwide difficulties

 

owing to trade and currency, a national convention was

 

planned for Annapolis, Maryland in 1786 but was disbanded

 

before it convened with the rationale that postponement of

 

the convention would allow a more serious addressal of

 

national issues in Philadelphia the following year, 1787.

 

In fact, for reasons of no clear self-interest, the New

 

England states had opted not to attend the Annapolis

 

gathering and other states were poorly represented. To

 

conduct the convention with such a weak representation would

 

have defeated any initiatives taken.

 

During the year's interim between the Annapolis and

 

Philadelphia Conventions, financially pressed citizens in

 

western Massachusetts called a number of local conventions

 

to demand changes in the state government, such as abolition

 

of the senate and cessation of heavy land taxation, lawyer's

 

fees, and county court costs. Later, during the winter of

 

1786-87, in protest of farm foreclosures, mobs prevented

 

Massachusetts county courts from holding session, and about

 

two thousand farmers rose in armed rebellion under the

 

leadership of a former Continental Army Captain named Daniel

 

Shays. Though suppressed by the Massachusetts State

 

Militia, Shays Rebellion raised national fears of widespread

 

anarchy in other indebted areas of the United States.

 

Shays' threat to seize the U.S. Arsenal at Springfield,

 

Massachusetts had raised concerns that the militia might

 

need assistance from a national army which the congress was

 

incapable of expeditiously providing.

 

The shock of Shay's Rebellion mobilized a strong and

 

representative turnout of concerned state delegations at the

 

Philadelphia Convention, but the panic and insecurity were

 

not universally shared. Thomas Jefferson, speaking for the

 

traditional republican viewpoint expressed skepticism toward

 

of Secretary of War Knox for having greatly exaggerated the

 

numbers of Shay's adherents. Furthermore, he suggested that

 

the Americans were once again being duped by the British

 

with their constant rumors of anarchy, and that the

 

nationalists in their plans for a strong central government

 

would set up a kite to guard the hen yard.13 Jefferson's

 

thoughts notwithstanding, the Post Revolutionary War

 

depression and the experience of Shay's Rebellion in 1786

 

underscored public perceptions of the inadequecy of national

 

military means, adding a grassroots sense of urgency to the

 

quest to form a strong central government and a credible

 

common defense.

 

In tune with political thought of the times, the

 

Constitutional Convention in 1787 created the unprecedented

 

office of president with an inherent conflict deriving from

 

the colonial and early national experiences in parallel with

 

the traditional republican - nationalist divergence of

 

viewpoints. Rationalizing a strong national government

 

while guarding against potential monopoly of power, the

 

Philadelphia Convention initiated a system of checks and

 

balances among three branches: the legislative, the

 

executive, and the judiciary. Conservative in outlook, the

 

convention rejected eighteenth century notions of the

 

perfectability of man and excessive expectations about the

 

possibilities of political action. The constitutional

 

separation of powers embodies a belief in political

 

engineering and a propensity to pursue diverse, even

 

controverting goals through the implementation of a complex

 

governmental structure.14 In terms of national security the

 

president was designated commander-in-chief of the armed

 

forces with undefined and therefore expandable or limitable

 

authority; however, the congress would provide for the

 

common defense through declaration of war, raising and

 

supporting armies, providing and maintaining a navy, and

 

providing for calling forth a militia to execute the laws of

 

the union. Jean S. Holder distills the inherent

 

presidential conflict in the Constitutional arrangement:

 

 

 

Americans have characteristically held ambivelant views

toward power - particularly presidential power. In the

decade that began in 1970 the pendulum moved full swing

as critics of various stripes first deplored the

"imperial presidency" of Richard Nixon and then

rejected the leadership of Jimmy Carter who tried to

strip the presidency of its regal trappings. The

present day ambivelance is, in part, a legacy from the

Founding Fathers who resolved their own inner and

interpersonal conflicts in regard to power by creating

an executive office of minimal definition in the

Constitution. These men who had fought to free

themselves from what they perceived to be the threat of

enslavement to royal tyranny were caught between their

fear of creating a quasi-regal leader and their belief

that strength in the executive was essential to

effective, balanced government. In providing a merely

skeletal description of the presidential role, the

framers of the Constitution skirted their own dilemma

but set the stage for a power struggle that would

essentially begin with the second American presidency.

As the idol of the entire nation, George Washington

conducted a magisterial administration; his personal

prestige and stature made his word fiat among

contemporaries.15

State experience under the Articles of Confederation

 

underscored the necessity for a vigorous, responsible, and

 

singular president, emphasizing emergent tendencies toward

 

confidence in the executive and distrust of the legislature.

 

New York, under the Governorship of George Clinton for

 

eighteen years, provided the model for the U.S. Presidency

 

within a constitutional separation of powers, and is

 

noteable for limiting the power of the legislature.

 

Executive independence, election by the people instead of

 

the legislature, command of the military, qualified veto,

 

unlimited three year terms, and executive equality with the

 

legislature were factors at variance with other states, most

 

of which had plural executives of extremely limited power

 

Clinton largely influenced the New York constitution with

 

his aversion to councils and his feeling that executive

 

energy and responsibility are inversely proportional to

 

reponsibility. Ironically, Clinton felt monarchy was more

 

likely to occur with strong executive power on the national

 

than on the state level, and his letter to the people of New

 

York during the ratification debates stands as one of the

 

most articulate traditional republican arguments against the

 

constitutional presidency.16 That the governor with the

 

strongest formal power among the states should oppose

 

similar authority at the national level epitomizes the

 

contradictions inherent in the American ambivelance toward

 

central government.

 

With the persuasive leverage of the nationalists over

 

the traditional republicans in Philadelphia, the convention

 

changed course from a modification of the Articles of

 

Confederation to a redesign, or more accurately, the

 

creation of a new government. This resulted in a completly

 

new Constitution, simultaneously shifting governmental

 

structural from a system with legislative primacy to one

 

where sharing of power among three branches would be the

 

design. The notion of the sovereign legislature had been

 

discredited and replaced with the realization that national

 

survival depended also upon an energetic presidency. To

 

this end the founders were explicit that presidential power

 

have a Constitutional and not a statutory foundation of

 

formal power.

 

Judith A. Best suggests the founders construction of

 

the presidency grew out of an overriding fear of legislative

 

tyranny and the confident belief in an energetic executive

 

as the cure. Supporting this fear was a new and more

 

sophisticated philosophical conception of tyranny as the

 

accumulation of powers, legislative, executive, and judicial

 

in the same hands growing out of the political theories of

 

Baron Charles Secondat De Montesquieu and John Locke, as

 

opposed to the precept of tyranny as one man rule conveyed

 

by Aristotle. Ingrained in the Constitution, this divergent

 

conception holds that a republic improperly balanced can be

 

as tyrannical as an unbenevolent monarchy. Specifically, a

 

legislative body unchecked in its power can wield the

 

tyrannical reign of a single despot. On the Philadelphia

 

Convention floor James Madison suggested the popular faith

 

in legislatures as the only source of good government,

 

devolving from the American colonial years was, perhaps,

 

misplaced:

 

 

 

"Experience had proved a tendency in our goverments to

throw all power into the legislative vortex. The executives

of states are in general little more than cyphers; the

legislatures omnipotent. If no effective check be devised

for restraining the instability and encroachment of the

latter, a revolution of some kind or other would be

inevitable."

 

 

 

Incorporating a so-called "check" against legislative

 

tyranny, Article II of the U. S. Constitution designates the

 

president commander-in-chief of the army and navy of the

 

United States and of the militia of the several states, when

 

called into actual service of the United States. He is to

 

act as a chief diplomat in receiving ambassadors and other

 

public ministers and to make treaties with the advice and

 

consent of the Senate.17

 

In Article I the congress is empowered to "provide for

 

the common defense" and to regulate commerce with foreign

 

nations. This sharing of foreign affairs functions between

 

congress and the president reflects the design to prevent

 

the accumulation of power in the same hands, the equivelant

 

of tyranny. At the same time, power sharing was a

 

compromise, a countervailing of the modern conception of

 

tyranny against a parallel belief that strength was

 

essential to balanced government.18 The legislative -

 

executive construct with its division and sharing of power

 

also documents the interplay between the nationalists, who

 

greatly admired the British governmental model and the

 

traditional republicans, many of whom were satisfied, given

 

small modifications, with the Articles of Confederation.

 

The presidency, thought by the founders to be the weaker of

 

the two when paired against congress, is an office, a

 

position of undefined and therefore expandable power,

 

whereas the congressional powers are much more carefully

 

delineated in Article I under the assumption the legislature

 

will by nature predominate in government. One of the main

 

poitical divisions between the traditional republicans and

 

the nationalists was their opposing views of executive

 

power. The nationalists were victorious in Philadelphia and

 

their view defines the presidency as it developed.19

 

In practice and precedent the presidency has grown via

 

the commander-in-chief power to dominate in foreign policy

 

and national security policy, both in the nation's early

 

history, but increasingly in the twentieth century with

 

exponential growth following World War II. Alexander

 

Hamilton, denied an active part in the Philadelphia

 

Convention when the New York delegation left prematurely in

 

protest of the decision to draft a new Constitution, played

 

a large role in the turf battle for executive power through

 

his ideas contained in The Federalist Papers, which were

 

originally newspaper articles supporting ratification of the

 

Constitution. Later, as President Washington's Secretary of

 

the Treasury, Hamilton's advise was instrumental in sizing

 

the office to the dimensions intended by the Nationalists.

 

In "Federalist #70" Hamilton argues for unity,

 

duration, adequate provision for support, and competent

 

power for the president. The destruction of unity can

 

result from either a plural executive or by making a single

 

executive subject to the control and cooperation of others

 

within the political spectrum. By duration he advocated a

 

sufficiently long tenure in office to allow continuity and

 

firm institution of policy. Provision for support meant

 

divorcing the president's salary from the congressional

 

purse strings for obvious reasons of executive independence,

 

and competent power meant the power to effectively execute

 

the laws and lead the nation. Hamilton felt the greater

 

danger lay in not exercising enough presidential power. He

 

advocated virtu or energy in the executive against ambitious

 

individuals, against seditious classes of the community, and

 

against the invasion of external enemies.20 It is fairly

 

clear that Hamilton was a monarchist and a strong advocate

 

of executive prerogative in the kingly sense. His arguments

 

for executive energy in The Federalist Papers downplay this

 

leaning, compromising his strong views concerning the

 

primacy of foreign affairs over domestic and the

 

corresponding primacy of executive function over

 

legislative. For example, "Federalist # 69" aims to win

 

over Constitutional opponents of strong executive power by

 

delineating why the president is not a monarch.21

 

The expansion of vaguely defined formal power first

 

occured when the primacy of the president in foreign affairs

 

was recognized by congress in 1789. The first congress

 

chartered a Department of Foreign Affairs, later the State

 

Department, under complete executive control. Foreign

 

expeditures and their disclosure were placed in the

 

president's charge, and when the Senate created the Foreign

 

Relations Committee in 1816 a commitee report stated: "The

 

president is the constitutional representative of the United

 

States with regard to foreign relations. He manages our

 

concerns with foreign nations; for his conduct he is

 

responsible to the Constitution."22

 

U.S. history, national security interests, and

 

expanding foreign policy concerns have produced more than

 

two centuries of incrementally increasing presidential power

 

with many presidents availing themselves of discretionary

 

powers implied by the skeletal constitutional nucleus.

 

Discretionary measures, or prerogative, as described by the

 

political theorist John Locke, entail actions to ensure the

 

spirit if not the letter of the law. Prerogative parallels

 

Hamilton's virtu, derived from Niccolo Machiavelli's The

 

Prince. Contained within this treatise, considered one the

 

western world's first works of modern political science, is

 

Machiavelli's advise to Florentine ruler Lorenzo Medici.

 

The intent was to advise Lorenzo in the ways of acquiring

 

power and uniting a large portion of present day Italy to

 

ensure survival of the state through good arms, which, in

 

turn, bring forth good laws. Since fortune and pride should

 

dictate success, the Prince should act as though half lion

 

to frighten away wolves and half fox to avoid snares.

 

Ideally impetuous and unpredictable, he should never confuse

 

virtu with virtue. Virtu is the accomodation, or the

 

appearance of virtue, necessary to appease subjects, to

 

acquire, and to hold power. Because politics are constantly

 

in motion they parallel the laws of physics. Consequently,

 

virtu (energy) accomodates politics (motion), while virtue

 

is by contrast, stagnant. A Prince with virtu will stay in

 

power while a Prince with virtue is doomed to failure.23

 

In agreement with Machiavelli's notion that success of

 

the state involves the goodwill of its subjects, John Locke

 

advises that citizens will allow, in fact demand prerogative

 

actions by the sovereign as long as the actions do not

 

interfere with property and life. Because laws are fixed

 

but politics are in motion, a legislative body as a

 

deliberative organization is not suited to the immediacy of

 

command decision. On the other hand, the capability of

 

executive prerogative to provide flexible responses to

 

various emergencies and state survival issues justifies its

 

exercise. The sovereign can also use prerogative to enforce

 

the spirit or intent of laws, in so doing exceeding positive

 

law or domestic law as we know it.24

 

Locke's definition of "executive prerogative" is the

 

power to act according to discretion, for the public good,

 

without the prescription of the domestic law, and even

 

sometimes against it.25 Stated another way, the Lockean

 

reasoning in defense of executive prerogative is this: The

 

legislature is incapable of completely fulfilling

 

governmental functions, particularly where protection

 

against external threats is concerned, therefore, sovereign

 

power must extend beyond the mere execution of the laws.

 

Lockean prerogative would permit the executive to act,

 

exceeding the laws in those cases where action by the

 

legislature would be impossible or ineffective. Regarding

 

the federative power which concerns affairs in the

 

international realm, distinct from positive (domestic) law,

 

the sovereign has no limitations.26 Locke's notion of dual

 

spheres for domestic and international affairs is a commonly

 

held postulate of modern political philosophy.

 

The Lockean intellectual disposition of the founding

 

fathers raises the question: Does the President have the

 

duty to violate the Constitution under some circumstances

 

especially when he judges it necessary to preserve the

 

Constitution? Some presidents, like Thomas Jefferson,

 

Abraham Lincoln to a degree, and Harry S.Truman, have

 

claimed emergency powers for which there seems to be no

 

constitutional basis. An overview of presidential

 

prerogative comprises part of the following chapter.

 

Charles Secondat Baron de Montesquieu, whose book The

 

Spirit of the Laws provides the basis for the constitutional

 

separation of powers conceptions expressed by James Madison,

 

was referred to more often by name than any other political

 

philosopher at the Constitutional convention. He articulates

 

a parallel to Locke's federative power, calling it "the

 

executive power".27 The "dual sphere of foreign and

 

domestic affairs underpinning the Constitution is often

 

misconstrued, denied or ignored in the modern American

 

approach to foreign policy, which by its nature treats

 

foreign policy as an extension of domestic politics.

 

Constitutional history shows a clearcut intent by the

 

framers to endow the presidential office with energy,

 

reflecting as previously alluded, a shifting in beliefs

 

about the aims and nature of good government, at least among

 

the American propertied elite responsible for the

 

Philadelphia Convention outcome and the eventual

 

ratification of the Constitution. The assumption of

 

traditional republicans (antifederalists) that the ideal

 

polity consisted of small, agrarian republics with tightly

 

limited governments lost in the competition of ideas with

 

the nationalists, or federalists, who envisioned the common

 

good arising in a polity characterized by large size,

 

diversity, and economic development. To compensate for

 

potential rule by factions, narrow interests would be

 

rendered ineffective in an extended republic by the

 

plentitude of competing and, countervailing interests.28

 

Encapsuled in the properly constructed constitution was

 

an expansive economic vision which foresaw a strong national

 

government and a vigorous president to acheive that

 

vision.29 James Wilson, educated in Scotland and an

 

adherent of the Scottish school of political economy was

 

largely responsible for shaping the presidency in the

 

Constitutional Convention through his writing of the first

 

Constitutional draft and his subsequent influence with the

 

commitees of style and detail which were responsible for the

 

final smooth document. He felt a strong Constitutional

 

presidency essential to commercial growth and reasoned that,

 

given a properly designed republican system, a president

 

would more likely act benevolently than corruptly in order

 

to increase his constituents good will.30

 

In terms of presidential power it also important to

 

reflect upon what the revolution and the establishment of

 

the national government was not: It was not a radical

 

revolution, but an evolutionary modification of familiar

 

modes of governance.

 

 

 

Even though it was born of a war of independence

the establishment of the American nation involved no

sharp break with the past.31

 

It did not reject the British example, but more

accurately, reaffirmed it.

 

The American revolution left the nation firmly

anchored in the English political tradition.

Government should be strong but limited by law, the

consent of the governed and individual rights; and -

representation is the approprate institutional

mechanism for limiting power and securing government.32

The founders did not favor popular control of

government, in fact they feared it.

 

Though esconced in the liberal traditions of

Locke, Hume, and Montesquieu, the Constitutional

framers put their faith in the orderly processes of

government. They feared volatile and radical

majorities and recognized the role of authority and

even of elites.33

 

The virtue of the people was not adequate to the

task of controlling the political effects of human

weaknesses. Only a properly constructed constitution

could have that happy effect.34

 

 

The American Revolution did not represent a transition

 

from monarchy to mass rule. Because the founders feared the

 

volatility of the public, the original Constitutional

 

framework envisioned elite rule with mass participation,

 

which explains the election of presidents by electors and

 

the election of the senate originally by the state

 

legislatures. The power and influence of the mass public in

 

the United States politics developed in gradual steps over

 

the nation's history.

 

In summary, the American nation, after shedding the

 

British colonial yoke, experimented with state and

 

legislative primacy, but, after the negative experience of

 

disunity in the Continental Government, attempted to

 

centralize government, liberate executive power from

 

legislative tyranny, and insulate government from popular

 

passion through elite rule, while resting ultimate power

 

with the people. The Construction of the U.S. national

 

government and the Constitution was designed to do all of

 

this.

 

U.S. political history from colonial times reflects a

 

shifting of relationships among the branches and levels of

 

government. In the post Vietnam era a renewed perception of

 

potential executive tyranny is responsible for the congress

 

circumscribing presidential authority and rejecting a

 

portion of the sovereignty it validly possesses in affairs

 

external to the nation.

 

 

 

 

Chapter 3

 

 

 

ENERGY AND UNITY

 

PRESIDENTIAL AUTHORITY: DEFINITION BY PRECEDENT

 

 

 

 

The scope of the American presidency as it is known in

 

the modern era is evolutionary, resting upon the custom and

 

practice of former presidents as a shaping influence within

 

the political constraints, the power relationships and

 

circumstances of given eras of U.S. history, and the

 

interpretation of individual presidents regarding the scope

 

of their formal and discretionary powers. As Woodrow Wilson

 

stated in a lecture series he presented while at Princeton:

 

 

 

Greatly as the practice and influence of the Presidents

has varied, there can be no mistaking the fact that we have

grown more and more inclined from generation to generation

to look to the President as the unifying force in our

complex system, the leader both of his party and of the

nation...His is the only national voice in

affairs.(Constitutional Government)

 

 

 

The presidents position as both commander of the armed

 

forces and head of state make him the logical purveyor of

 

American authority in international dealings. It is fair to

 

say that without the relatively unrestricted presidential

 

use of prerogative powers in the arena of foreign policy

 

this nation would be unrecognizable today.

 

The first president, George Washington, aided by

 

Alexander Hamilton (Secretary of Treasury) and Thomas

 

Jefferson (Secretary of State) established several

 

precedents effecting presidential roles in national security

 

policy when he established a cabinet and mobilized the

 

militia in quelling the Whiskey Rebellion, a revolt in

 

Pennsylvania against federal taxing authority. By the power

 

of his personal prestige he was spared addressing many of

 

the interbranch powersharing concerns caused by

 

Constitutional ambiguity in the Article II definitions of

 

presidential authority. Washington thusly, incurred no

 

protest when he initiated the practices of executive

 

privilege, the confidentiality of presidential

 

communications, and the pattern of presidential nonconferral

 

with the Senate on treaty formulation. The first president

 

drew heavily, not on the model of the colonial governors or

 

the ideals of British republicanism, but rather on his

 

experiences as Commander-in-Chief of the Continental Army.

 

The lessons of generalship guided him in making the

 

presidency a symbol of nationalism, an advocate of energy

 

and unity, and a focus for administrative centralization and

 

responsibility.1

 

Owing to his Revolutionary war experience, national

 

security ranked as Washington's highest priority. Within

 

the broad category of security, specific issues of concern

 

were the U.S. commitment by treaty to guarantee French

 

possessions in the Americas, the presence of British forts

 

in the Northwest territory, and British and Spanish efforts

 

to incite disruption and secession in the states bordering

 

the territories. Additionally, U.S. navigation rights on

 

the Mississippi were at the mercy of the Spaniards, a factor

 

limiting national commerce

 

With the nation encircled by European adversaries and

 

uncertain of congressional support for diplomatic

 

initiatives, Washington relied upon prerogative powers in

 

foreign policy, and in so doing, established the foundation

 

for presidential assertion of authority in national security

 

issues. In a highly popular decision Washington opted for

 

strict neutrality in the British - French Naval War,

 

ignoring treaty observance with the French and favoring the

 

British, partly as a result of Alexander Hamilton's

 

Anglophilic proclivities.

 

In the ensuing Constitutional debate over the

 

neutrality proclamation Hamilton defined the issue as one of

 

diplomacy, an inherent power to the executive foreign policy

 

power, while James Madison, a member of the House of

 

Representatives, maintained that the proclamation dealt with

 

issues of war and peace, an implied congressional power

 

pursuant to the enumerated power of war declaration. When

 

congress opted against challenging the executive by passing

 

supporting legislation, Washlngton's edict initiated an

 

historical pattern where presidential foreign policy

 

initiatives are legitimized by congressional affirmation.

 

The contrast in Washington's neutrality proclamation in 20th

 

Century terms is that in this case, the president advocated

 

neutrality while congress prefered war. This pattern of

 

congressional war initiation repeated itself in the War of

 

1812 and the Spanish American War.

 

Washington also established the presidential practices

 

of recognizing foreign governments, and of breaking

 

diplomatic relations. His discretion in foreign policy

 

averted war's escalation from Europe to North America,

 

secured the U.S. Northwest Territory, and facilitated the

 

evacuation of British posts, in the Northwest Territory. In

 

dealing with Spain he negotiated commercial rights on the

 

Mississippi River and settled the issue of the Spanish

 

Florida boundary.2

 

Devoid the heroic warrior image of his predecessor,

 

John Adams, the second President of the United States was

 

handicapped politically when he agreed to retain

 

Washington's cabinet. His authority was challenged

 

particularly by Alexander Hamilton's effort to command the

 

U.S. Army against the French, an intrigue in which George

 

Washington, always popular and still highly influential,

 

played a passive but important role. Using his formal power

 

as commander-in-chief Adams was able to field a navy, fight

 

an undeclared war with France from 1798-1800, and delay

 

formation of an Army until the need for force passed,

 

foiling Hamilton in the press. The attempt by Hamilton to

 

politically manipulate Adams using his affinity with

 

Washington, threatened the independence of the executive

 

office for which he and the nationalists had diligently

 

labored in the Philadelphia Convention. An uncharismatic

 

leader, Adams illustrated at a critical juncture in U.S.

 

history the Constitutional strength of formal executive

 

power and the command prerogative available to even a

 

politically weak president.3

 

The strength of the president's voice in national

 

security affairs is related to the U.S. geopolitical

 

position and the American foreign policy and warmaking which

 

are both geopolitically and event driven. The 19th century

 

was characterized by a U.S. foreign policy of continental

 

expansion. The greatest perceived security threat was

 

territorial encroachment, or the possibility of being

 

surrounded by colonies owing allegiance to one of the

 

European Crowns. Accompanying the gradual dissolution of

 

the Spanish Empire during the Napoleanic Wars, the

 

retrocession of the Louisiana Territory from Spain to France

 

aroused U.S. fears of additional European colonies changing

 

hands as a result of European Wars.4 President Jefferson,

 

who followed Adams in office, took advantage of Napolean's

 

European war difficulties and France's unrealistic designs

 

for Haiti as an advance naval base to control the American

 

interior via the Mississippi Valley. Using executive

 

discretion as chief diplomat, in 1803 he purchased the vast

 

western tract of the Louisiana Territory against the wishes

 

of congress.5 This action he acknowledged as extra-

 

Constitutional, but as supportive of the long range security

 

interests of the nation.

 

In addition to the measures mentioned, Jefferson also

 

engaged in a covert operation in Tripoli, transferred monies

 

appropriated by congress for frigates to small gunboat

 

construction, and waged an undeclared war against the

 

Barbary pirates from 1801-1805. It is no small irony he

 

had been a vocal critic of both Washington and Adams for

 

exceeding their strictly interpreted Constitutional powers

 

in foreign policy. He would not be the last president to

 

take a more expansive prerogative view upon assuming the

 

office.

 

The Great Lakes were demilitarized by an executive

 

agreement with the British by President James Monroe in 1817

 

and, later, in 1819, when General Andrew Jackson entered

 

Spanish Florida in hot pursuit of Seminole Indians,

 

Secretary of State John Quincy Adams negotiated for West

 

Florida and Spain's claim to the Oregon Territory.

 

In 1823 the Monroe Doctrine, part of an annual message

 

to congress by President James Monroe which was named cost

 

facto, became a documentary manifestation of a deliberate

 

U.S. policy to exclude Europe from the Western Hemisphere.6

 

The proclamation, had no legal standing but expressed the

 

continental security sentiments of the Senate's No Transfer

 

Doctrine passed in 1811 to protest the possibility of

 

Florida falling into British hands the way Louisiana had

 

been transferred to the French. The Monroe Doctrine

 

forbade: further colonization in the Western Hemisphere by

 

the Europeans, the transfer of existing colonies from one

 

European power to another, and attempts by Europeans to

 

extend their system of government to the Western Hemisphere.

 

The brains behind the Doctrine belonged to Secretary of

 

State John Quincy Adams, responding to a perceptive view of

 

the world situation. In 1821 the Czar of Russia, Alexander

 

I, had issued a Ukase, or edict claiming American

 

continental territory on the west coast, south to the 51st

 

parallel and forbidding ships to sail near this claim.

 

Adam's fear was that the Czar had aims for a further

 

southern thrust into the Oregon Country and possibly

 

California.7

 

The younger Adams also had an expansive view of the

 

prerogative inherent in the executive exercise of war power.

 

In a speech delivered May 25, 1836 he commented:

 

 

The war power is limited only by the laws and usages of

nations. This power is tremendous; it is strictly

constitutional, but it breaks down every barrier so

anxiously erected for the protection of liberty, of

property, and of life. The powers of war are all

regulated by the laws of rations, and subJect to no other

limitations.8

 

 

 

The other factor driving the Monroe doctrine was the

 

Latin American "Age of Emancipation", which began in 1821

 

based upon the U.S. and French revolutionary models. With

 

the fledgling Latin American Republics separating from

 

Spain, they were potentially easy prey for other European

 

powers, especially France. The Americans had not sufficient

 

naval power to enforce the idea of the "separate sphere",

 

but were able to get the British to go along with the idea

 

and to subsequently ward off French western hemispheric

 

ambitions through the Provisions of the British - French

 

Poligniac Agreement. John Quincy Adams wisely counseled

 

Monroe to make his edict concerning the separate spheres a

 

unilateral one despite the collusion with Britain.9 In a

 

separate action without congressional approval, Monroe

 

conducted a ruthless war with pirates in the Caribbean which

 

involved shore landings on Spanish Territory. The policy,

 

albeit risky, was effective from the stand-point of

 

Caribbean security.10

 

During the administration of President Tyler steps

 

were taken to protect so called "inchoate interests" of the

United States in Texas without legislative approval. Tyler,

 

awaiting Senate ratification of the Texas Annexation Treaty,

 

signed on April 12, 1844, gave his assurance to Texas

 

commissions on May 15, 1844 that he would, as Commander in

 

Chief of the U.S. Armed Forces, defend Texas against foreign

 

invasion. The Senate protested this executive agreement as

 

an usurpation of the legislative war function, but to no

 

avail.11

 

In 1845 President James Polk restated the Monroe

 

Doctrine in his inaugural address in order to discourage

 

suspected British ambitions toward possession of Mexican

 

owned California. When the Annexation of Texas was

 

approved, Polk ordered General Zachary Taylor into disputed

 

territory between the Nueces and Rio Grande Rivers to repel

 

possible invaders,instigating a Mexican Army attack on

 

Taylor's force, following which Polk asked congress for

 

antecedent recognition that a state of war with Mexico

 

existed. The congressional war declaration which followed

 

set a precedent in presidential initiation of war through a

 

defensive fait accompli. The "spoils" of the Mexican war

 

included the Mexican Cession of present day Arizona, New

 

Mexico, and California. With the later addition of the

 

Oregon Territory following an 1846 agreement with the

 

British, and the Gadsden Purchase from Mexico in 1853 the,

 

present day U.S. continental boundaries were secure,

 

fundamentally altering the course of American foreign police

 

to a preoccupation with the U.S. Civil War, the events

 

surrounding the war, and the reconstruction period

 

following the war. In the 1890's economic conditions of

 

would shift the American political debate to foreign trade

 

and potential foreign territorial acquisition.

 

Tyler's "inchoate agreement" with the Texans and Polks

 

subsequent fait accompli making inevitable the Mexican War,

 

represent actions which involved Americans in a war at the

 

direction of one man with no legislative accountability. It

 

is precisely the parallel between the fait accompli of the

 

Mexican War and the perceived fait accompli represented by

 

the Gulf of Tonkin incident in Vietnam which underlie the

 

congressional concerns represented by the host of

 

contemporary legislation aimed at limiting the president in

 

warmaking. Though initially supportive, many questioned the

 

morality of the Mexican War because of the circumstances

 

surrounding its initiation. Civil War Union Army Commander

 

and U.S. President Ulysees S. Grant would claim the U.S.

 

Civil War to be God's judgement against America for it's

 

methods in Mexico. Future President Abraham Lincoln, a whig

 

member of the U.S. House of Representatives, following the

 

war declaration voted with the majority, 85-81 in a House

 

resolution condemning the war as unnecessarily and

 

unconstitutionally initiated by President Polk.12 Vocally

 

criticizing the war for its initiation despite the absense

 

of an apparent threat, Lincoln demanded to know the exact

 

spot where the armed forces clashed.13

 

But Polk's pursuit of territory in fact was security

 

oriented in the same fashion as the Louisiana Purchase of

 

Thomas Jefferson, and, more importantly, was popularly

 

motivated. The national attitude of the period included a

 

public belief that it was a God given American destiny to

 

occupy the continental landmass from coast to coast. This

 

attitude was named by newspaper editor John L. O'Sullivan,

 

"Manifest Destiny".

 

Ironically, in light of Lincoln's criticism of Polk, he

 

took drastic and unprecedented, almost dictatorial

 

prerogative measures with the outset of the civil war. With

 

the congress out of session Lincoln mobilized the militia,

 

declared a blockade of southern ports (the legal equivalent

 

to a declaration of war), suspended writs of habeus corpus,

 

and declared martial law. Using a corroborative opinion of

 

Attorney General Edward Bates Lincoln claimed the necessity

 

of the situation required swift and bold action "whether

 

strictly legal or not and, further, that he felt congress

 

would "readily ratify" his actions. The Prize cases later

 

confirmed the constitutional legality of Lincolns actions.

 

Later in the war, following the Battle of Antietam and

 

Union General McClelland's failure after a tactical victory,

 

to destroy the Confederate Army, Lincoln's Jan. 1, 1863

 

Emacipation Proclamation freed black slaves in the States of

 

the Confederacy by executive order as the Commander-in-

 

Chief. Though never legally challenged,14 when questioned

 

by a reporter in 1864 concerning the discretion authority

 

exercised in excess of strict Constitutional powers, Lincoln

 

penned this famous response, now entitled "The Prerogative

 

View".

 

 

 

 

Executive Mansion, April 4, 1864

 

 

 

My dear Sir: You ask me to put in writing the

substance of what I verbally said the other day in your

presence, to Governor Bramlette and Senator Dixon. It

was about as follows:

"I am naturally antislavery. If slavery is not wrong,

nothing is wrong. I cannot remember when I did not so

think and feel, and yet I have never understood that

the presidency conferred upon me an unrestricted right

to act officially upon this judgment and feeling. It

was in the oath I took that I would, to the best of my

ability, preserve, protect, and defend the Constitution

of the United States. I could not take the office

without taking the oath. Nor was it my view that I

might take an oath to get power, and break the oath in

using the power. I understood, too, that in ordinary

civil administration this oath even forbade me to

practically indulge my primary abstract judgment on the

moral question of slavery. I had publicly declared

this many time's, and in many ways. And I aver that, to

this day, I have done no official act in mere deference

to my abstract judgment and feeling on slavery. I did

understand, however, that my oath to preserve the

Constitution to the best of my ability imposed upon me

the duty of preserving, by every indispensable means,

that government-that nation, of which that Constitution

was the organic law. Was it possible to lose the

nation and yet preserve the Constitution? By general

law, life and limb must be protected, yet often a limb

must be amputated to save a life; but a life is never

wisely given to save a limb. I felt that measures

otherwise unconstitutional might become lawful by

becoming indispensable to the preservation of the

Constitution through the preservation of the nation.

Right or wrong, I assume this ground, and now avow it.

I could not feel that, to the best of my ability, I had

even tried to reserve the Constitution, if, to save

slavery or any minor matter, I should permit the wreck

of government, country, and Constitution all together.

When, early in the war, General Fremont attempted

military emancipation, I forbade it, because I did not

then think it an indispensable necessity. When, a

little later, General Cameron, then Secretary of War,

suggested the arming of the blacks, I objected because

I did not yet think it an indispensable necessity.

When, still later, General Hunter attempted military

emancipation, I again forbade it, because I did not yet

think the indispensable necessity had come. When in

March and May and July, 1862, I made earnest and

successive appeals to the border states to favor

compensated emancipation, I believed the indispensable

necessity for military emancipation and arming the

blacks would come unless averted by that measure. They

declined the proposition, and was, in my best

judgment, driven to the alternative of either

surrendering the Union, and with it the Constitution,

or of laying strong hand upon the colored element. I

chose the latter. In choosing it, I hoped for greater

gain than loss; but of this, I was not entirely

confident. More than a year of trial now shows no loss

by it in our foreign relations, none in our home

popular sentiment, none in our white military force -

no loss by it anyhow or anywhere. On the contrary it

shows a gain of quite a hundred and thirty thousand

soldiers, seamen, and laborers. These are palpable

facts, about which, as facts, there can be no caviling.

We have the men; and we could not have had them without

the measure.

"And now let any Union man who complains of the

measure test himself by writing down in one line that

he is for subduing the rebellion by force of arms; and

in the next, that he is for taking these hundred and

thirty thousand men from the Union side, and placing

them where they would be but for the measure he

condemns. If he cannot face his case so stated, it is

only because he cannot face the truth."

I add a word which was not in the verbal

conversation. In telling this tale I attempt no

compliment to my own sagacity. I claim not to have

controlled events, but confess plainly that events have

controlled me. Now, at the end of three years'

struggle, the nation's condition is not what either

party, or any man, devised or expected. God alone can

claim it. Whither it is tending seems plain. If God

now wills the removal of a great wrong, and wills also

that we of the North, as well as you of the South,

shall pay fairly for our complicity in that wrong,

impartial history will find therein no cause to attest

and revere the justice and goodness of God.15

 

 

 

The strength of Lincoln's precedent is substantial as

 

detailed in this description:

 

 

 

Between 1789 and 1861, presidents regarded their

role as commander-in-chief as purely military in nature.

Faced with a civil war, however, President Abraham Lincoln

began to expand the presidential war power beyond that

original concept. He found constitutional justification for

the exercise of broad discretionary by fusing the powers of

the commander-in-chief with the executive's general

coonstitutional responsibility to take care that the laws

are faithfully executed. The national emergency of

secession and war, Lincoln said, required the swift and firm

exercise of extraordinary powers by the chief executive.

In two world wars in the 20th century, Presidents

Woodrow Wilson and Franklin Roosevelt took a similar view of

presidential war powers as they further expanded the sphere

of those powers in wartime.16

 

 

 

With the post civil war presidents the executive

 

experienced its weakest period in U.S. history.17 Some

 

foreign policy initiatives were attempted to expand the U.S.

 

domain: President Grant, certain that great benefit would

 

befall the United States with acquisition of Santo Domingo

 

(The Dominican Republic) submitted a treaty of annexation in

 

1870. The treaty was defeated in the Senate but Grant both

 

pending the Senate vote and afterwards, in the hope of

 

renegotiating after a congressional study, deployed the U.S.

 

Navy to defend U.S. "inchoate interests" against invasion

 

pursuant to the presidential treaty making power. The

 

Senate debate which resulted demonstrated the futility of

 

attempting to limit the president's protective function to

 

the merely the repelling of invasion or immediate physical

 

attack.18 Santo Domingo was never annexed but the commander

 

in chief power remained unchallenged in Grant's employment

 

of the Navy.

 

The Presidency began to come back into the primacy

 

enjoyed under the first presidents in the 1890's when

 

another corollary to the Monroe Doctrine was added in 1893

 

through President Grover Cleveland's squaring off with Great

 

Britain and insisting on U.S. arbitration of the Venezuelan-

 

British Guyana border dispute, despite a U.S. Navy woefully

 

inadequate to back up any threat of force.19 Fortunately,

 

for Cleveland and the nation, the British were involved with

 

the German supported Boers in South Africa and, having in

 

the process cultivated some international ill will, could

 

not afford to lose the U.S. as an ally. The British got

 

their way despite Cleveland's bluster, but U.S. national ego

 

soared as a result of this successful ultimatum to British

 

naval power inspired by Secretary of State Richard Olney.20

 

The Olney corollary to the Monroe Doctrine expanded the

 

U.S. sphere of influence in Latin America as an honest

 

broker for European disputes occurring within the Western

 

Hemisphere.21 Robert Ragazzo opines Cleveland's "moralism"

 

with the British was a gross distortion of the Monroe

 

Doctrine expanding its meaning well beyond the original

 

intent, but the Olney Corollary was a clear statement of

 

executive prerogative in foreign policy.22

 

In election of 1896 imperialism vs anti-imperialism was

 

a pivotal campaign issue, one which would shape the course

 

of the nation and the role of the executive. William

 

Jennings Bryan, the anti-imperialist candidate lost and the

 

imperialist point of view, essentially represented by

 

William McKinley and the ideas of the "New Manifest Destiny"

 

won the presidency. After a year in office, yielding to

 

public and congressional pressure to annex Cuba from the

 

declining Spanish empire, Mckinley used the sinking of the

 

USS Maine in Havana Harbor as a pretext to send to congress

 

his war message against Spain. For his action Mckinley was

 

roundly criticized by former President Cleveland, who had

 

resisted similar congressional pressure - "the country

 

cannot go to war without the president". When Admiral Dewey

 

attacked the Spanish Fleet in Manila Harbor, The Phillippine

 

Islands, his easy and decisive victory yielded the United

 

States a colonial empire including Puerto Rico, The

 

Phillippine Islands and Guam. Cuba became a protectorate

 

and Hawaii was subsequently annexed as a naval coaling

 

station. With a Pacific empire to defend, and U.S. economic

 

interests in the Pacific emerging the role of the U.S.

 

presidency was forever changed with the addition of the

 

increased defense and foreign affairs responsibilities of

 

the United States as a global power. McKinley ended the war

 

through an executive agreement and proceeded to shore up

 

U.S. interests in the far east through other executive

 

agreements, such as the Boxer Indemnity Protocol and the

 

"open door notes" guarateeing Chinese sovereignty and great

 

power spheres of influence within that country for trade

 

purposes. He also sent troops to China to protect the

 

American legation during the Boxer Rebellion.23

 

The advent of navalism in the United States beginning

 

in the late 19th century in concert with the newly acquired

 

U.S. Pacific holdings combined to focus President Theodore

 

Roosevelt's attention upon the construction of a

 

Transisthmian canal across the neck of Central America as an

 

economy of force measure, allowing limited naval shipping to

 

defend either Pacific or Atlantic coasts as well as the

 

Pacific territories. The canal had been thought necessary

 

for continental naval defense since the Mexican Cession of

 

1848 immediately followed by the statehood of California in

 

1849. When Colombia asked too high a price for canal real

 

estate, Roosevelt initiated a revolution, quickly recognized

 

the independent State of Panama, provided U.S. Marine

 

protection to the new government, and negotiated a

 

satisfactory treaty, all with no congressional approval.23

 

Authorized in the Naval Construction Acts at the turn

 

of the century and complimenting the U.S. Panama Policy, a

 

strong U.S. fleet stood ready to protect the Canal Zone and

 

the Carabbean approaches. In 1904 President Theodore

 

Roosevelt issued his famous corollary to the Monroe

 

Doctrine, which proclaimed U.S. responsibility for Latin

 

American debts owed to European nations, even at the expense

 

of U.S. forcible intervention on the European's behalf.24

 

The Roosevelt Corollary was a response to the international

 

law of the early 20th century which recognized the legality

 

of nations forcibly collecting their debts. A key to

 

understanding the many U.S. interventions of the period, its

 

purpose was essentially to prevent European pretexts for

 

intervention in an area geopolitically vital to the U.S..

 

Announced after the election in 1904, the necessity for the

 

pronouncement followed a 1902 incident between Germany and

 

Venezuela, in which Venezuela defaulted on her debts and a

 

German, British, Italian task force blockaded the Venezuelan

 

coast, sank several gunboats, and bombarded a coastal fort.

 

Concerned mainly with German intentions in the region, U.S.

 

deployment of the Caribbean fleet persuaded arbitration by

 

the Europeans.25

 

Soured by the memory of sending the Army to occupy Cuba

 

following the Spanish American war and to the Phillipines to

 

extinguish the Phillipine Insurrection in the aftermath of

 

the Spanish American War, Roosevelt favored using the Navy

 

and its Marine detachments to achieve the limited military

 

objectives necessary to maintaining U.S. interests inthe

 

Caribbean. Use of Naval Forces was also politically safer

 

than dispatching an occupying army.26 During the time frame

 

of the Roosevelt administration the British Navy

 

relinquished its role in the Caribbean in order to meet the

 

nascent naval expansion of Germany. The United States could

 

no longer secure her Caribbean interests under the umbrella

 

of Pax Brittanica. The Roosevelt Corollary, to the Monroe

 

Doctrine like the Olney which preceded it, represented a

 

significant expansion beyond the original meaning of the

 

Doctrine. However, the basic rationale of hemispheric

 

security was consistent.

 

Roosevelt appoached the presidential office with what

 

he called "The Stewardship Doctrine":

 

 

 

My view was that every executive officer, and above all

every executive officer in high position, was a steward of

the people bound actively and affirmatively to do all he

could for the people, and not to content himself with the

negative merit of keeping his talents undamaged in a napkin.

I declined to adopt the view that what was imperatively

necessary for the nation could not be done by the president

unless he could find some specific authorization to do it.

My belief was it was not only his right but his duty to do

anything that the needs of the nation demanded unless he

could find such action was specifically forbidden under the

Constitution or by the laws.... I did not usurp power, but I

acted for the public welfare, I acted for the common well-

being of all our people, whenever and in whatever manner was

necessary, unless prohibited by direct constitutional or

legislative prohibition .... 27

 

 

 

 

Roosevelt's successor, William Howard Taft, encouraged

 

U.S. businesses to invest heavily in Latin America and then

 

employed the Navy and Marines to protect American captial

 

under the "American lives and property" rationale. This

 

policy, known as "Dollar Diplomacy", was more meddlesome in

 

world opinion than Roosevelt's "big stick. Dollar

 

Diplomacy sowed immense ill will and encouraged the anti-

 

Yankee perception that U.S. Marines intervened to protect

 

American business pure and simple. The true significance of

 

the geopolitical connection often tended to get lost.

 

Taft, who later became Chief Justice of the Supreme

 

Court, in contrast to Roosevelt, held what he called a

 

"Restricted View of the Office":

 

 

 

The true view of the executive, is, as I conceive it,

that the president can exercise no power which cannot be

fairly and reasonably traced to some specific grant or

justly implied and included within such express grantas

proper and necessary to its exercise. Such specific grant

must be either in the federal Constitution or in an act of

congress passed in pursuance thereof.28

 

 

 

 

The contrast between Roosevelt and Taft is remarkable,

 

mirroring the fundamental nationalist/whig dichotomy in

 

questions of government addressed at the Constitutional

 

Convention. Generally speaking presidents with the

 

stewardship or prerogative view fair better in the

 

historical treatment they receive. For example, who

 

appplauds the James Buchanans and the Herbert Hoovers for

 

their restricted view of the office in the face of clear and

 

pressing national exigencies? On the other hand the two

 

Roosevelts, Lincoln, Wilson and Truman are lionized. And

 

presidents like Polk and McKinley at least command respect.

 

The downfall of Lyndon Johnson and particularly the demise

 

of Richard Nixon might be considered a revolution in

 

American thinking about the heroic image of prerogative

 

presidencies. Arthur Schlesinger Jr's 1973 book, The

 

Imperial Presidency seems to indicate so.

 

The protection of the Panama Canal and the Carribbean

 

against German ambitions toward the Caribbean in World War I

 

was the rationale for the many Latin American interventions

 

undertaken at the direction of President Woodrow Wilson.

 

Several Wilsonian interventions, including Haiti, Santo

 

Domingo, and Nicaraugua involved long term occupations, even

 

complete takeovers of government by Naval and Marine

 

Officers. This practice turned Roosevelts limited objective

 

logic for using Naval Forces on its head. (Banana Wars)29

 

Wilson, more idealistic and less pragmatic than either

 

Roosevelt or Taft, objected to business playing such a

 

strong role in U.S. Latin American policy. Ironically, with

 

his crusading attitude, he intervened militarily in the

 

Caribbean more than any other president.30 The Wilson Plan,

 

implemented with the Haitian intervention in 1915, was to

 

"teach these Latin American's to elect good people. The

 

concern then, as in the present day, is not only a fair

 

election, but a fair election that elects the "right

 

people", people not averse to democracy, stability, and U.S.

 

security interests.31 Despite the hegemony of Wilson's

 

actions the occupations accomplished the security of the

 

Caribbean against German naval power during World War I at a

 

relatively small cost in military manpower and national

 

treasure.

 

In one of the largest Latin American interventions

 

prior to World War I, Wilson ordered U.S. troops to Mexico

 

both in pursuit of bandits across the southern U.S. border

 

and in a landing at Vera Cruz during Mexico's revolution and

 

her subsequent search for stable and democratic government.

 

As World War I in Europe also engulfed the United States and

 

American troops entered the conflict in 1917, Wilson sought

 

and obtained from Congress comprehensive delegations of

 

power to prepare for war and to mobilize the home front.

 

During the war, Wilson managed the nation's economy by

 

delegating power to a series of war management and war

 

production boards created to coordinate domestic production

 

and supply. "It is not an army that we must shape and train

 

for war, Wilson explained; "it is a nation."

 

Wilson commandeered plants and mines; he requisitioned

 

supplies, fixed prices, seized and operated the nation's

 

transportation and communications networks, and managed the

 

production and distribution of foodstuffs. The Council of

 

National Defense, an umbrella agancy created by Wilson,

 

administered the economy during the war. Wall Street broker

 

Bernard Baruch, who headed the War Industries Board, became

 

the nation's virtual economic dictator. The board had no

 

statutory authority whatsoever; Wilson simply created it

 

under his authority as commander in chief.

 

Wilson's exercise of the war power went unchallenged by

 

the Supreme Court. In part, this was the result of Wilson's

 

obtaining prior congressional al for all his actions.

 

Issues that raised constitutional questions, moreover,

 

reached the court only after the armistice, when they no

 

longer possessed urgent significance. All three branches of

 

the government seemed to assume that the broad powers

 

exercised by Lincoln during the Civil War carried over for

 

use in foreign wars.

 

The delegation of legislative power by Congress to the

 

president reached unprecedented heights during World War I.

 

Many statutes simply stated their general objectives and

 

left it to the president to interpret those goals and

 

administer the measures he felt necessary to achieve them.

 

Modern day executive departments operate under the same

 

general mandates in peacetime. When the Senate attempted to

 

form a watchdog committee to oversee management of the war

 

Wilson opposed the measure as a check on his leadership.

 

The House of Representatives then killed the proposal.

 

The closest the court came to questioning executive war

 

power during World War I came with its 1921 decision

 

declaring unconstitutional a portion of the Lever Food

 

Control Act unconstitutional. The Lever Act provided for

 

federal control of the distribution and production of

 

foodstuffs and the marketing of fuel. The bill subjected

 

the nation's economy to whatever regulations the president

 

mandated to guarantee Allied victory. It authorized the

 

president to license the manufacture and distribution of

 

foodstuffs and to seize factories and mines to ensure

 

continued production of defense-related commodities.

 

Section 4 of the act made it a criminal offense to charge

 

excessive prices for commodities. The court invalidated

 

that section of the law because it set no ascertainable

 

standard of guilt, failed to define unjust or unreasonable

 

prices, and was therefore in conflict with the

 

constitutional guarantees of due process of law and of

 

adequate notice to persons accused of crime regarding the

 

cause of the charge against them.32

 

In an act rejecting U.S. great power responsibility and

 

presidential initiative after the Armistice, several

 

powerful senators, called irreconcilables, including William

 

Borah and Henry Cabot Lodge, orchestrated the defeat of the

 

Versailles Treaty, causing the war settlement in Europe to

 

be less then fair and, some critics contend, fomenting World

 

War II twenty years later. The United States fell into a

 

state of familiar isolationism and a naive foreign policy

 

which included laws passed with blind hopes of eliminating

 

war: the Kellog Briand Act and the Neutrality Acts.

 

 

 

Convinced that it had been dragged into the Great War

by arms merchants and allies, the nation legislated its

disillusions of Neutrality Acts during the 1930s. These

forced the president to announce U.S. neutrality when other

nations fought, prohibited arms sales to belligerent States,

banned travel by U.S. citizens on belligerent ships, and

allowed belligerents to buy commodities like raw materials

on a cash and carry basis only (The Johnson Act of 1934

had already prohibited loans to countries with outstanding

World War I debts - just about all of Europe.)33

 

 

 

The concept of expanded presidential powers in wartime,

 

tested in the civil war and expanded upon in World War I

 

with congressional approval, underwent their greatest

 

expansion during the 3 terms of President Franklin

 

Roosevelt. With the emergency of the Great Depression

 

Roosevelt's New Deal programs employed emergency measures

 

only experienced during the Civil War and World War I. The

 

Supreme Court was initially nonsupportive of many of these

 

actions, because of their domestic content.

 

When the rise of fascist dictators in Japan, Germany,

 

and Italy changed the national focus, Roosevelt circumvented

 

the Neutrality Acts of 1935, 1936 and 1937 by committing the

 

U.S. to a neutrality weighted toward Great Britain against

 

the expansionist fascists. Declaring emergencies in 1939

 

and 1941 Roosevelt assumed almost dictatorial powers in his

 

prosecution of the war effort. By executive agreement on

 

Sept. 3, 1940, he traded 50 U.S. destroyers for long term

 

leases on six British Western Hemispheric bases. Roosevelt

 

called those who advocated congressional approval

 

"legalists".34 He ordered the occupation of Iceland and

 

Greenland in 1941, and without public knowledge on April 24,

 

1941 instructed U.S. ships in the Atlantic in Hemispheric

 

Defense Plan No.4 to trail Axis vessels and aircraft and

 

broadcast their positions every four hours.35 Later, on Oct

 

11, 1941 Hemispheric Defense Plan No.5 was ordered without

 

public knowledge. Its guidance was: "The operations which

 

will be conducted under this plan are conceived to form a

 

preparatory phase for the operation of Navy basis War Plan

 

No.5". the Plan for open and declared war. Executing this

 

order American surface combatants engaged German submarines

 

on several occassions, sometimes provocatively. Roosevelt

 

hoped to gain a congressional declaration of war from one of

 

these naval confrontations but did not sense a climate

 

politically favorable to do so. Consequently, the attack by

 

the Japanese on Pearl Harbor on 7 Dec. 1941 only finalized

 

U.S. entry into the war Roosevelt had incrementally moved

 

the nation toward through Presidential prerogative.36

 

Woodrow Wilson's management of the economy during World

 

War I lessened reservations constitutional about broad

 

federal war power. When the U.S. entered the Second World

 

War, Congress again delegated vast federal powers to the

 

president to prosecute the war. Roosevelt and Congress

 

developed a partnership to win the war with the legal

 

assumption that war powers exercised by Lincoln and Wilson

 

carried over to the new emergency. The Supreme Courts view

 

on executive power was different, however, in 1936 took a

 

more Lockean view of presdential authority in affairs

 

external to the state. A war between Paraguay and Bolivia

 

and an embargo Roosevelt placed on arms shipments evoked one

 

of the most extensive Supreme Court precedents concerning

 

presidential plenary power in foreign affairs:37

 

 

 

Congress on May 24, 1934, approved a joint

resolution that authorized President Roosevelt to embargo

these arms shipments if, in his judgment, an embargo would

contribute to ending the war. The resolution provided for

fines and imprisonment, or both, forthose who violated the

embargo. Roosevelt signed the resolution into law May 28,

1934. The resolution in no way restricted or directed his

discretion in instituting the embargo.

 

Roosevelt soon declared an embargo in effect.

Curtiss-Wright Export Corporation and two other

companies were subsequently convicted of selling

aircraft machine guns to Bolivia in violation of the

embargo. They challenged the constitutionality of the

resolution, arguing that it was an improper delegation

of congressional power to the president.

 

The Supreme Court already had envinced sympathy

for such challenges, striking down several major New

Deal initiatives in 1936 on that basis.

 

The Curtiss-Wright Decision

 

The court upheld the embargo resolution. The vote

was 7-1. Justice Harlan Fiske Stone took no part in

the case. Justice James McReynolds dissented.

 

Justice George Sutherland's opinion, written for

the majority, upheld sweeping executive powers in

foreign affairs. The majority distinguished between

external and "internal" powers of the federal

government - foreign policy and domestic policy. Based

on his reading of the historical evidence and on his

own previous studies of the foreign affairs power,

Justice Sutherland concluded that the source of

national authority in foreign relations was the British

crown, not the separate state. This placed the foreign

affairs power on an extra-constitutional footing

different from that of the internal powers which passed

from the states to the federal government.

 

Sutherland's opinion elaborated on the theory of

external sovereignty argued in 1795 by Justice William

Paterson. Sutherland wrote:

 

The broad statement that the federal

government can exercise no powers except those

specifically enumerated in the Constitution, and

such implied powers as are necessary and proper to

carry into effect the enumerated powers, is

categorically true only in respect of our internal

affairs. In that field, the primary purpose of

the Constitution was to carve from the general

mass of legislative powers then possessed by the

states such positions as it was thought desirable

to vest in the federal government, leaving those

not included in the enumeration still in the

states... That this doctrine applies only to

powers which the state had is self-evident. And

since the states severally never possessed

international powers, such powers could not have

been carved from the mass of state powers but

obviously were transmitted to the United States

from some other source.

 

As a result of separation from Great Britain

by the coionies, acting as a unit, the powers of

external sovereignty passed from the Crown not to

the colonies severally, but to the colonies in

their collective and corporate capacity as the

United States of America.... Rulers come and go;

governments and forms of government change; but

sovereignty survives. A political society cannot

endure without a supreme will somewhere.

Sovereignty is never held in suspense. When,

therefore, the external sovereignty of Great

Britain in respect of the colonies ceased, it

passed to the ......... It results that the

investment of the federal government with the

powers of external sovereignty did not depend upon

the affirmative grants of the Constitution. The

powers to declare and wage war, to conclude peace,

to make treaties, to maintain diplomatic relations

with other sovereignties, if they had never been

mentioned in the Constitution, would have vested

in the federal government as necessary

concomitants of nationality.

 

 

 

Sutherland then, echoing John Marshall's

phrases, asserted the key role in foreign affairs for

the president:

 

... The President alone has the power to speak as a

representative of the nation. He makes treaties

with the advice and consent of the Senate; but he

alone negotiates. Into the field of negotiation

the Senate cannot intrude; and Congress is

powerless to invade it.

 

 

It is important to bear in mind that we are here

dealing not alone with an authority vested in the President

by an exertion of legislative power, but with such an

authority plus the very delicate, plenary and exclusive

power of the President as the sole organ of the federal

government in the field of international relations - a power

which does not require as a basis for its exercise an act of

congress, but which...must be exercised in subordination to

the applicable provisions of the Constitution.38

 

 

 

The Curtis Wright Decision, sometimes disputed by

 

opponents of presidential power, acknowledges the awesome

 

plenary powers in foreign affairs which the executive would

 

exercise in the U.S. assumption of global Power after World

 

War II.

 

The Lend-Lease Act of March 11, 1941, granted Roosevelt

 

the power to enter into executive agreements to manufacture

 

in government arsenals or "otherwise procure" defense

 

articles and "to sell, transfer, exchange, lease, and lend

 

those war materials to the governments of any country deemed

 

vital to the defense of the United States." More

 

interestingly, however, Roosevelt prior to lend lease had

 

unsuccessfully used his persuasive skills to convince the

 

public of the need to take national action against facist

 

Germany and Japan.39

 

To deal with congressional intransigence Roosevelts'

 

use of executive agreements made that procedure a primary

 

instrument and nearly replaced the treaty making power

 

because of its effect. The force of law accruing to

 

executive agreements was upheld in the cases of U.S. vs

 

Belmont and U.S. vs Pink, both rulings concerning Franklin

 

Roosevelts secret recognition of the Soviet Union prior to

 

U.S. entry into World War II.40

 

Roosevelts expansive use of presidential authority and

 

prerogative have set the pace for the modern presidency.41

 

With the advent of the U.S. - Soviet Cold War between 1945

 

and 1947, a permanent state of emergency underlay

 

presidential authority in National Security.42 Multilateral

 

treaty making engaged the U.S. in the coalition defense of

 

the Western world. But executive agreements, many of them

 

secret, facilitated the control and direction of foreign

 

policy. John Foster Dulles, Seretary of State under

 

Eisenhower, in 1953 estimated 10,000 executive agreements in

 

connection with the NATO treaty alone. The NATO treaty was

 

also cause for the deployment by executive order of U.S.

 

forces which remain in Europe today. It is important to

 

note, however, that many executive agreements are

 

legislatively authorized.43

 

President Truman unilaterally entered the Korean war in

 

1950, six months after the communists took power in China,

 

basing his action on a U.N. Security Council Resolution.44

 

He might have based it upon the NATO treaty of 1949 since

 

the Korean invasion was perceived as a prelude to a Soviet

 

thrust into Western Europe.

 

Presidents Eisenhower, Kennedy, and Johnson received

 

initial congressional carte blanche for their foreign

 

policies because of the state of permanent emergency caused

 

by global communist agression and later heightened by

 

advances in Soviet nuclear capabilities. Eisenhower

 

received Congressional approval to defend the Nationalist

 

Chinese Government on Taiwan and to block Communist

 

aggression in the middle east resulting in the 1958

 

deployment of Marines to Lebanon.

 

President Kennedy, during the Cuban missile Crisis of

 

1962, obtained a joint resolution authorizing him to prevent

 

the spread of communism in the Western Hemisphere, by force

 

if necessary. After Kennedy's assassination, and the war in

 

Indochina involved the U.S. increasingly more, President

 

Johnson responded to a reported patrol boat attack on U.S.

 

destroyers in the Gulf of Tonkin by requesting and receiving

 

congressional passage of the Gulf of Tonkin Resolution,

 

which he would rely upon as congressional legitimation of

 

his ensuing war effort there. The resolution read, in part,

 

 

 

...the United States is...prepared, as the President

determines, to take all necessary steps, including the

use of armed force, to assist any member or protocol

state of the Southeast Asia Collective Defense Treaty

requesting defense of its freedom.

 

 

 

The vote in support of the Southeast Asia Resolution (Tonkin

 

Gulf) was 88-2 in the Senate and 416-0 in the House.45

 

Certainly, Johnson could have deployed troops to Vietnam

 

without congressional sanction but he had learned from

 

Eisenhower's experience in Lebanon about the political value

 

of such sanction.

 

Eisenhower ordered a CIA directed covert operation to

 

help overthrow a communist government in Guatemala in 1954,

 

beginning the use of unconventional measures to enforce the

 

Monroe Doctrine, which like the global Containment Policy

 

took on an anticommunist twist. The success of the

 

operation convinced Ike of the economy and efficiency of

 

such operations, making them the operation of choice in the

 

3rd World from that time on, especially in Latin America. 46

 

President Johnson employed U.S. ground forces against a

 

communist threat in Latin America, when he dispatched 22,000

 

troops to the Dominican Republic in 1965. This action

 

contravened the nonintervention provisions of Franklin

 

Roosevelt's Good Neighbor Policy of 1933. His rationale for

 

intervention was to prevent another Cuba. President Reagan

 

would take a similar prerogative in the 1983 Grenada

 

operation. Both of these involvements carried the

 

multilateral sanction of allied neighboring countries.

 

Concentration of power in the presidency has been

 

evolutionary depending upon historical circumstances of war,

 

military threat or emergency for their expansion. Until

 

Lincoln, and the U.S. civil war presidents viewed their

 

commander-in-chief role as military in nature. By fusing

 

the commander-in-chief power with the executive power to

 

meet various national exigencies, Lincoln initiated the use

 

of extraordinary prerogative which would later reemerge in

 

the same, or stronger form under later presidents,

 

especially Wilson and Franklin Roosevelt. These two

 

presidents operationalized the total control of the nation

 

in global war efforts. The power they added to the

 

presidential repetoire became available to post World War II

 

presidents when the nuclear age and the threat of global

 

communism thrust the nation into a perpetual state of

 

emergency. These powers carried into the Cold War, as

 

Roosevelt had revolutionized the national government and the

 

presidency, and they were available to the presidential

 

office during Vietnam.

 

As detailed in Chapter 2 the consensus supporting the

 

freehand of presidents collapsed beginning with the decision

 

of Richard Nixon to extend the Vietnam War another four

 

years, a decision which, given the public opposition to U.S.