From the founding of the United States to the present, concerned citizens have debated the breadth of presidential power in foreign affairs. The Founders, from their reading of European history and their experience with the English Crown, feared extensive executive authority. Believing that broad control over the military over the shaping of relations with foreign nations and over the making of war paved the way to tyranny, in these matters they placed explicit constitutional curbs on the executive. As the nation grew, these restraints led often to tension between the president and Congress. Regardless, except in a few instances, the authority of the executive expanded along with the growth of the nation's wealth and influence in the world.
The reasons why the executive prevailed and in the twentieth century presidential wars became virtually standard procedure are complex. Some scholars maintain the presidents could use massive force on their own because Congress abdicated its constitutional authority. Others saw as a cause the rise of the United States to the status of a world power, an imperial power, and a superpower. Many perceived the executive's dominance in war as a logical consequence of the corrupting influence of vast power. Still others saw that power as politically and personally based. They maintained that presidents catered to popular sentiment because, often in the guise of patriotism, strong, violent muscle-flexing against foreign foes was rewarded at the ballot box.
Writing in the 1830s, the French political theorist Alexis de Toque ville described the American president as possessing, especially in foreign relations, "almost royal prerogatives." More than a century later, Harry S. Truman claimed the presidency had "become the greatest and most important office in the history of the world." Into the twenty-first century, the media and scholarly treatises repeated this concept so often it became commonplace.
Ironically, leaders of the generation that fought the revolutionary war had a deep distrust of wide-ranging executive power. When they drafted the nation's first constitution, the Articles of Confederation and Perpetual Union, they omitted a permanent executive office. They feared concentrating immense power in any one person because they regarded executive authority the natural enemy of liberty and a potential repository for military tyranny. So they established a single legislature that chose a member as president. He could not serve more than one year in any three-year congressional term and had no special authority in the conduct of foreign affairs.
After the United States won independence, political leaders such as John Jay, George Washington, Alexander Hamilton, and James Madison perceived the Articles as inadequate, particularly in the making of foreign policy. They desired a permanent president with sufficient authority to carry out a unified policy toward the rest of the world. With this objective, they sought to amend the Articles in a manner that would provide for a stronger central government. They persuaded Congress to authorize a convention for that purpose. After delegates from seven states met on 25 May 1787 in Philadelphia, they decided to get rid of the Articles of Confederation and frame a new constitution.
The debate over the nature of the presidency consumed more time than did any other major problem before the convention. Framers supposedly influenced by an eighteenth-century doctrine of an inherent executive prerogative—advanced by political thinkers such as John Locke—desired "a vigorous Executive." Others pointed out that the people opposed anything resembling an elective monarchy. After much discussion, the Founders created a presidential office with specific constraints as well as considerable power. They separated it from the legislative and judicial branches with a system of checks and balances designed to prevent the president from becoming a tyrant.
In keeping with this objective, the framers placed more curbs on the president's power in domestic affairs than in foreign relations. They also denied him the most vital of monarchical powers, that of initiating war. Envisaging him as the agent of Congress, they vested the war power in the legislature. They conferred on the president the authority, with the approval of the Senate, to appoint ambassadors and other emissaries and to receive similar diplomats from other countries. With the advice and consent of the Senate, given in a two-thirds vote, only he could make and negotiate treaties.
The new constitution also stated that the "President shall be Commander in Chief of the Army and Navy…and of the Militia of the several States when called into the actual Service of the United States." This title did not give him authority to declare or instigate war. In The Federalist No. 69, Hamilton assumed, therefore, that the president's role as commander in chief would amount to nothing more than the supreme command and direction of the military and naval forces. The real power, as he perceived it, belonged to Congress. In the long run, Hamilton's assumptions proved wrong. Increasingly, presidents would use the commander in chief clause to expand their authority over foreign policy in its most vital aspect, the power to make war. For this reason, presidents, their political supporters, and others would come often to refer, incorrectly, to the clause as the president's war power.
Other powers, such as the president's choosing heads of executive departments or cabinet members, his pardoning and veto authority as in budget matters, his right to inform and request legislation from Congress, and his duty to execute laws faithfully, all touched on foreign affairs. Regardless of the safeguards built into these various powers, the Founders created what they had tried to prevent, an office that in foreign affairs had the potential of becoming a kind of elective monarchy.
George Washington had an acute awareness that as the first president his behavior would set precedents for future occupants of the office, and it did. For instance, frustration in August 1789 in dealing with legislators over treaties with Indian tribes led him to abandon the constitutional requirement of obtaining the advice and consent of the Senate before or during negotiation of treaties. Instead, he concluded treaties and then asked for Senate approval, a procedure that since his time other presidents have followed. With a broad view of his authority, he viewed the president as having the power to enforce aspects of relations with foreign peoples even if his actions could lead to armed conflict. He first seized the initiative in using force in dealing with security on the western frontier, where he regarded the Native Americans as a foreign people who menaced white inhabitants. Beginning in October 1790, he sent three armies against Native Americans in the Northwest. In August 1794, the third expedition, headed by General "Mad" Anthony Wayne, crushed the Indian resistance.
Washington also acted with considerable independence in dealing with Europeans. After revolutionaries in France in September 1792 abolished the monarchy and established a republic, he used his power to receive foreign representatives to establish formal relations with the new regime. This decision established precedent for prompt de facto recognition of a government when it demonstrated effective control of a nation. The first significant controversy over the president's power in foreign affairs erupted after January 1793, when England and France went to war. France expected help from Washington because of its alliance with the United States during the American Revolution. Instead, on 22 April, he proclaimed neutrality. Critics regarded this policy as pro-British with the potential of provoking France to hostilities. Hence, they denounced it as usurping Congress's war power. Supporters of the policy, such as Hamilton, defended it as flowing logically from the executive's conduct of foreign affairs.
Writing under the pseudonym "Helvidius," Madison denied the president possessed the power on his own to take actions that would precipitate war. "Those who are to conduct a war," Madison wrote, "cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded." Regardless of the validity of this perspective, Washington had indeed taken a bold step in setting a precedent for presidents to claim the right to determine foreign policy unilaterally.
Meanwhile, despite the neutrality policy, friction with England over trade practices, over the frontier with Canada, and especially over the royal navy's seizure of American shipping and impressment of American seamen roiled relations with the mother country. Fearing possible hostilities, members of the newly formed Federalist Party pressed the president to send a special mission to London to resolve the differences. He chose John Jay, then chief justice, for the task and abandoned his usual practice of sharing an envoy's instructions with the Senate. Washington's action angered Democratic-Republicans, members of the opposition party, but the Federalist majority in the Senate approved the mission, and on 19 November 1794, Jay concluded a treaty that aroused harsh public criticism. Despite bitter controversy, the Senate approved the treaty and on 14 August 1795, the president ratified it. From this time on, Washington increasingly became a target of political abuse—"the head of British faction," one critic characterized him. French leaders called the treaty a negation of their alliance. Opponents in the House of Representatives tried to kill it by withholding appropriations for carrying it out. They also demanded to see the documents of the negotiation, thus raising the question, To what extent did the constitutional right of control over funding give the House power to participate in the treaty-approving process?
Democratic-Republicans argued that the House, as the immediate representative body of the people, had a right, even a duty, to consider whether or not a treaty should go into effect. Federalists countered that the Constitution restricted the treaty power to the president and Senate. On this premise, Washington refused to release the Jay papers. Finally, on 29 April 1796, by the margin of one vote, the House agreed to appropriate funds to implement the treaty. Thus, on the basis of party line considerations, Washington set another precedent that extended presidential power in foreign affairs, one that exempted the executive in this process from close legislative oversight.
Washington reacted defensively to the criticism that he had wrongly inflated presidential authority. During the controversies over that issue, he maintained that the powers of the American president "are more definite and better understood perhaps than those of almost any other Country," and that he had aimed "neither to stretch, nor relax from them in any instance whatever, unless imperious circumstances shd. render the measure indispensable." Later, in discussing the content of his Farewell Address, in which he set the principles for an isolationist policy, he wanted to make clear to all that "he could have no view in extending the Powers of the Executive beyond the limits prescribed by the Constitution." Regardless, when he left office and foreign policy became an issue in the presidential election of 1796, critics still believed he had aggrandized executive authority in a manner that placed the nation on the verge of war with France. Later generations of historians who characterized presidents as weak or strong would rank him as a strong executive.
THE QUASI-WAR AND AFTER
John Adams thought carefully about the powers of the evolving presidency. He believed in a strong executive because "the unity, the secrecy, the dispatch of one man has no equal." To prevent abuses in the office, he felt that "the executive power should be watched by all men." He described the president as the leader of "a monarchical republic" who exercised greater power than heads of government in various European countries. He perceived the American president's prerogatives as "so transcendent that they must naturally and necessarily excite in the nation all the jealousy, envy, fears, apprehensions, and opposition that are so constantly observed in England against the crown." While deploring limitations on the president's authority, as "in cases of war," he still acknowledged that "the legislative power in our constitution is greater than the executive."
In July 1797, after the French stepped up attacks on American commerce, Adams moved to resolve the crisis, much of which he had inherited. When French officials humiliated his emissaries, he asked his cabinet if he should recommend to Congress an immediate declaration of war. When the cabinet split, he decided against seeking a formalized war, sent copies of the envoys' dispatches to Congress substituting the letters W, X, Y, and Z for the French officials involved, and asked the legislators to authorize preparations for war. He also took steps to protect the lives of American citizens from French attacks and to convey publicly the image of a vigorous executive. When Congress, under Federalist pressure, published the XYZ documents, much of the public reacted with a demand for war that brought Adams a popularity he had always lacked. He gloried in the role of a warrior-leader, delivering numerous combative speeches while sporting a military uniform and a sword. He told approving crowds, "Let us have war." This bellicosity alarmed opposition Republicans. One of them, George Logan of Pennsylvania, warned that ambitious executives launched wars more for their own aggrandizement than for the protection of their country.
Despite such sentiment, Federalists in Congress voted for warlike measures. For the first time under the Constitution, in recognition of undeclared hostilities at sea, Congress empowered the president to deploy naval forces on a scale larger than a short-term police action. When extreme Federalists pressured Adams to expand this Quasi-War, as it later became known, Adams wavered. He did so not because of an unwillingness to use more force but because he questioned his power to do so without the consent of Congress. He believed, furthermore, that minority Republicans, with some moderate Federalists, would vote against a declaration of war.
Extreme Federalists then characterized Adams as lacking the virile qualities they presumed necessary in the strong executive. Feeling betrayed by many of his own party on this issue, Adams changed his perspective toward a full-scale war. Consequently, when the French offered a second round of peace negotiations, Adams welcomed the overture. He then a sent a second mission to France, and expansion of the Quasi-War became an issue in the presidential campaign of 1800. Republicans portrayed themselves as friends of peace and Federalists as partisans of war. On 1 October the American negotiators in France signed the Convention of Mortefontaine that ended the war. News of the peace arrived in the United States too late to benefit Adams in the election. Thomas Jefferson won. Nonetheless, Adams later regarded his decision for peace as the "most disinterested and meritorious action of my life." It set a noble example for posterity but his use of naval force set a less admirable precedent. Future presidents would invoke it, under the concept of an implied constitutional power, when they employed the military unilaterally in limited hostilities against weak foes.
Even though Jefferson took office as a believer in strict construction, meaning a narrow interpretation of the Constitution, he acted on the assumption of a magnified construction of presidential power in foreign policy in the pattern set by Washington. He claimed that only the president could carry on transactions with foreign governments. Within two weeks of his inauguration, Jefferson decided to send four warships to North Africa to protect American shipping against attack by alleged pirates along the Barbary Coast.
Shortly thereafter he asked his cabinet if he should seek a declaration of war from Congress. Treasury Secretary Albert Gallatin responded that the president "cannot put us in a state of war," but if other nations put us in that state the executive could on his own use military force. Without consulting Congress or receiving its sanction, he waged war, or what later would be called a police action, against the Barbary States. Later, Congress did authorize the president to employ the navy at his discretion.
Meanwhile, after Jefferson learned in May 1801 that France had reacquired Louisiana from Spain, his strict constructionist views clashed with his concept of a strong executive power in foreign affairs. He considered the possibility of war to block consummation of the transfer and to safeguard the American right of deposit at New Orleans. First, in January 1801, he sent a special emissary to France with a proposal to purchase New Orleans and territory at the mouth of the Mississippi River. When Napoleon Bonaparte offered to sell all of the Louisiana Territory, Jefferson hesitated to act on his own. Soon, though, he decided to act "beyond the Constitution" and not let "metaphysical subtleties" stand in the way of a great bargain that would benefit the nation. He thus added to the precedents for extending presidential authority in international matters beyond its original constitutional limits. Under the concept of enlarged authority, Jefferson claimed, on questionable ground, Spain's West Florida as part of the Louisiana Purchase. He threatened force if Spain did not acquiesce. Although most cognizant Americans approved of his bellicosity as proper presidential vigor, he backed off from hostilities mainly because of deteriorating relations with England and France. In a crisis with Britain in June 1807, when a British warship attacked the American naval frigate Chesapeake, Jefferson at first appeared eager for war, but when public sentiment for it dwindled he retreated. When he left office, he retained faith in the strong executive willing to use military force with the support of Congress and in some circumstances on his own.
When James Madison took over the White House, he had the experience of having helped create the presidency and, as Jefferson's secretary of state, of having administered foreign affairs for eight years. Still, he had less confidence in executive authority than did Jefferson. He had frequently expressed the view that the president, "being a single individual, with nothing to balance his faults and deficiencies, was as likely to go wrong as the average citizen." His views fluctuated over time, leading him later to believe "in the large construction of Executive authority," notably in the conduct of foreign affairs.
As president, Madison secretly backed American settlers who in July 1810 seized West Florida from its Spanish authorities. For a time he hesitated in annexing it to the United States, fearing such openly unilateral action would raise "serious questions as to the authority of the Executive." Within four months he overcame his qualms and took over the territory. Many Americans applauded what they saw as proper presidential power. One senator said that if the president had not taken West Florida, he would have been charged with imbecility.
For almost three years, Madison resisted pressure from hawks in his own party to take bold measures against Britain, action that would most likely precipitate war. Federalists, however, opposed hostilities. When on 1 June 1812 he requested a declaration of war, he used his power to persuade wavering legislators to support him. During the hostilities he could not, however, capitalize on that power without encountering considerable public defiance. The war went badly and became unpopular. Critics denounced him for lacking effective leadership. Some scholars would later characterize him as a failed executive and a weak war leader. Yet in annexing West Florida he had been high-handed and as tough as his predecessors.
James Monroe, too, acquired a reputation as a passive leader, but he contributed to the enlarging of presidential power in international affairs through the use of an executive agreement. In the Rush-Bagot Agreement in April 1817 with Britain that limited naval armaments on the Great Lakes, he bypassed the Senate's veto power over treaties. He thus set the precedent for unilateral action that technically operated only during the term of a president who negotiated an agreement. Nonetheless, executive agreements became an effective means for presidents to exercise power in foreign affairs without congressional consent.
Monroe faced the possibility of war with England and Spain when Andrew Jackson, at the head of a small army, in April 1818 raided East Florida and executed two English subjects. Although Monroe had not authorized the incursion, Secretary of State John Quincy Adams defended Jackson, stating that his actions involved "the Executive power to authorize war without a declaration of war by Congress." He believed that if the president disclaimed such power he would set "a dangerous example; and of evil consequences." Monroe quickly embraced this argument, calling Jackson's invasion of a neighbor's territory self-defense. Critics denounced the invasion as an act of war without the consent of Congress. "If it be not war…," one of them stated, "let it be called a man-killing expedition which the President has a right to direct whenever he pleases."
Several years later, when militants wanted Monroe to defend Spain's rebelling colonies against recon quest, he decided to act on his own but not with force. On 2 December 1823, he warned European powers not to intervene in the New World struggles. This concept, in what became known as the Monroe Doctrine and accepted by future presidents, demonstrated another aspect of executive power in foreign matters, the ability to influence with words.
Through deed as well as word, Andrew Jackson acquired the reputation of a vigorous no-nonsense president in both foreign and domestic affairs. His concept of an expansive authority surfaced in an incident in 1831 with Argentine authorities in the Falkland Islands (Islas Malvinas). On the basis of slim evidence, he accused them of endangering the lives of American seal hunters. He threatened force that critics said brought the nation to the brink of war, but he did not go much beyond words.
In another dispute, when marauders from the town of Kuala Batu, Sumatra, killed three American pepper traders, Jackson used force. On his orders, on 6 February 1832, an assault force of 262 heavily armed marines attacked the town, torched it, and slaughtered more than a hundred Sumatrans, some of them women. Political opponents wondered, "If the President can direct expeditions with fire and sword against the Malays…why may he not have the power to do the same in reference to any other people." In this manner, "a very important provision of the Constitution may in time become a mere nullity." Defenders, though, praised Jackson for his executive energy.
Jackson also secretly aided American rebels in Texas in their fight in 1836 to secede from Mexico. In addition, he occupied militarily Mexican territory, ostensibly to protect Louisiana from cross-border raiders. John Quincy Adams, who had now abandoned his earlier advocacy of a presidential war authority, condemned this "most extraordinary power" as illegal. When Congress approved Jackson's action, Adams commented, the startling "idea that the Executive Chief Magistrate has the power of involving the nation in war even without consulting Congress" had taken root. It had grown, he maintained, out of fifty years of presidents' de facto exercise of such power.
Contemporaries characterized John Tyler as a man with talents not above mediocrity while historians rate him a weak president. Yet, he came up with a tactic for placing more power in the hands of the executive at the expense of Congress that later presidents would adopt. He wanted to acquire Texas but could not obtain a two-thirds majority in the Senate for a treaty of annexation. So, he asked the whole Congress to approve annexation with joint resolution that required only a mere majority. It agreed. Opponents, who called this action an abuse of power that evaded constitutional restraint, urged impeachment. Tyler prevailed, he explained later, because in handling foreign affairs he had been "freer of the furies of factional politics than he had been in domestic affairs."
THE MEXICAN AND CIVIL WARS
James K. Polk came to the presidency belittled as another mediocrity. He vowed to reverse this popular perception by asserting vigorous leadership. He defended the annexation of Texas, with its potential for war with Mexico, and quickly stoked a quarrel with Britain over title to the Oregon territory. Despite some saber rattling, in the spring of 1846 he resolved the Oregon dispute peacefully. All the while he took a tougher stance against Mexico, which refused to recognize its loss of Texas.
Polk ordered troops to occupy disputed territory between Texas and Mexico implicitly, if not explicitly, with the intent to provoke hostilities. This tactic led a critic to ask, "Why should we not compromise our difficulties with Mexico as well as with Great Britain?" The answer could be found in the classic policy of aggressive leaders—compromise with the strong but bash the weak. So, when Mexican forces killed several of the American soldiers occupying the no-man's land north of the Rio Grande, the president claimed the Mexicans had shed American blood on American soil, an assertion disputed by Abraham Lincoln and other Whigs. Nonetheless, on 13 May 1846, a majority in Congress ratified the president's action by resolving that a state of war existed.
Dissenters charged that "a secretive, evasive, and high-handed president himself had provoked Mexico into firing the first shots." John C. Calhoun of South Carolina denounced Polk's procedure as "monstrous" because "it stripped Congress of the power of making war." The war bill "sets the example," he warned, "which will enable all future presidents to bring about a state of things, in which Congress shall be forced, without deliberation, or reflection, to declare war, however opposed to its convictions of justice or expediency." John Quincy Adams stated, "It is now established as an irreversible precedent" that the president "has but to declare that War exists, with any Nation upon Earth…and the War is essentially declared." Critics called the Mexican War an "Executive War" or "Mr. Polk's War." The House of Representatives voted to censure Polk for "unnecessarily and unconstitutionally" bringing on war. Lincoln stated that by accepting Polk's rationale, Congress allowed the president "to make war at pleasure." Polk mustered support for his policies with a quasi-official newspaper he established in Washington, D.C., but garnered most of his popularity by winning the war at low cost and bringing vast territory into the Union. In subsequent years, his aggressive style earned him the enduring admiration of the strong-presidency cult. In all, Polk stretched the president's power as commander in chief more than had his predecessors.
Polk's immediate successors readily accepted a narrow constitutional interpretation of their powers, sometimes called the Whig conception, and faced no foreign crises that tested that view. Although as a Whig congressman Abraham Lincoln had condemned Polk's amplification of executive power, as president he exercised that power boldly in both domestic and foreign affairs. In waging war against the Confederacy, Lincoln enlarged the army and navy by decree, paid out funds from the Treasury without congressional appropriation, suspended the writ of habeas corpus, and closed the mails to reasonable correspondence. He proclaimed, with questionable legality, a naval blockade of Confederate ports that embroiled the Union in unnecessary foreign quarrels. In the Trent affair, his government claimed exaggerated powers but backed down when confronted with the possibility of hostilities with Britain.
In September 1864, when Western powers organized an international naval force to retaliate against the Japanese for assaults on their shipping in the Strait of Shimonoseki, Lincoln cooperated with Britain and other nations. Thus, for the first time a president authorized a U.S. vessel to join a foreign armada in a police action to punish a foreign people for harming American nationals and others. American sailors remained engaged in this kind of policing, solely on presidential initiative, for a decade.
More importantly, during the Civil War critics denounced Lincoln's exercise of presidential authority as despotic. He justified his use of military force as within the executive's power to suppress rebellion, as within the scope of his authority as commander in chief, and as necessary for enabling him to take any necessary measure to subdue the enemy. His tough measures, he told Congress, "whether strictly legal or not," were forced upon him. He prevailed because he won both popular and legislative support. Numerous contemporaries and scores of scholars since his time have defended his arbitrary rule as necessary to preserve the Union and to emancipate four million slaves. These were noble causes and hence validate his actions as proper. Lincoln gave substance to the concept that, in a crisis, the president, in the name of the people, should dominate the government. Congress and the courts should defer to him. He enhanced the power of commander in chief beyond what the framers of the Constitution had envisioned or what previous executives had done. Aggressive successors would exploit this precedent, primarily in the conduct of foreign affairs.
Unlike most presidents, Benjamin Harrison came to office reputedly without the drive to amass power. Biographers indicate that this attitude changed after a dispute principally with Germany over Samoa. After tasting executive power in a foreign confrontation, it entranced him. He used this authority harshly in a dispute in 1891 with Italy over a lynching of Italian subjects in New Orleans and in humiliating Chile in the same year in a quarrel that grew out of a barroom brawl in Valparaiso, where a mob killed two American sailors. He demanded an apology and reparations. When the Chilean government hesitated, he threatened force. Analysts maintain he trumped Congress's war power as decisively as if he had unilaterally committed troops to battle. The constitutional niceties involved did not concern most Americans, who in large numbers applauded his toughness. Harrison intervened also in a revolution in Hawaii. He denied personal involvement but backed the revolutionaries and sought to annex the islands. In later years, he again shifted his perspective on foreign policy. He told a journalist, "We have no commission from God to police the world."
Grover Cleveland also had an ambivalent attitude toward presidential power. He came to office believing in a cautious interpretation of the Constitution's clauses on executive functions. He also regarded the presidency as superior to any executive position in the world, implying it had divine sanction. In office, he bridled at legislative restraints. During his first term, Cleveland intervened with surprising toughness in a domestic uprising in Nueva Granada (later Colombia), when he exaggerated a threat to America's right of transit across the Isthmus of Panama. Unilaterally, he dispatched more than twelve hundred marines backed with artillery to help crush rebels defying the central government. Jingoes applauded his vigor but people in the region regarded him as an imperialist bully. When Germany threatened to take over Samoa, in a kind of police action, he sent three warships to the islands to preserve their independence. No hostilities ensued but the big power confrontation continued.
In his second term, Cleveland acted with unnecessary bellicosity toward Britain in a dispute over the boundary separating British Guiana and Venezuela. Through an inflation of the Monroe Doctrine, he claimed unwarranted authority over the Western Hemisphere. Members of Congress and much of the public cheered the president's stance as a proper defense of national honor. Historians and others perceived his saber rattling, with its risk of war over a quarrel posing no threat to the United States, as a dangerous exploitation of presidential power.
In a rebellion in Cuba, Cleveland resisted pressure from Congress, journalists, and much of the concerned public to lead the country into war to force Spain to relinquish its colony. He told legislators, "There will be no war with Spain over Cuba while I am president." When one of them reminded him that Congress could on its own declare war, he responded that the Constitution also made him commander in chief. As such, he said, "I will not mobilize the army." Cleveland's perception of presidential power produced a standoff with Congress that lasted until he left office. Views vary on William McKinley's exercise of power in foreign affairs. Historians depict him as both dominant and passive. He entered the presidency with respect for congressional authority and with a circumscribed view of its powers. Instead of asking Congress for a declaration of war against Spain, he requested discretionary authority to use the armed forces. It led a senator to ask why legislators should "give the President power to intervene and make war, if he sees fit, without declaring war at all?" Congress granted McKinley the power he desired. He served an ultimatum on Spain, blockaded Cuban ports, and thus initiated hostilities. On 24 April 1898, Spain declared war, and the following day Congress voted that a state of war had existed since the date of the blockade. After that, the story goes, McKinley shed his passivity and became an aggressive, virile leader. He willingly took on the responsibility of war and, after victory, of policing another country's possession. Also at this time, when he could not round up enough votes in the Senate to annex Hawaii by treaty, he did so with a joint resolution of Congress, following the precedent set by Tyler. McKinley then governed the islands with a presidential commission.
When Filipinos demanded the right to rule themselves, McKinley refused, and they fought the American occupiers. He then deployed large forces in an undeclared war he justified as a police action. Critics asked, "How can a president of the great republic be blind to the truth that freedom is the same, that liberty is as dear and that self-government is as much a right in the Philippines as in the United States?"
McKinley exerted his will in another military venture. As commander in chief, he sent five thousand troops to China to join an international expeditionary force to suppress Boxer rebels. Analysts point out that he intervened for political purposes, or to demonstrate hard-hitting leadership in foreign affairs in an election year. Publicly, though, he justified his "international police duty" with the now established principle of protecting American lives and property. The Philadelphia Times, however, termed the intervention "an absolute declaration of war by the executive without the authority or knowledge of Congress, and it is without excuse because it is not necessary." Neither constitutional restraints nor the critics mattered much because both Congress and the public approved of McKinley's conduct. Partisan biographers and analysts have viewed him as a courageous executive who maneuvered both Congress and the public into accepting presidential primacy in foreign relations. They praise him also for asserting executive power in external affairs in an era of purported congressional ascendancy.
THE STEWARDSHIP THEORY
Unlike his immediate predecessors, Theodore Roosevelt came to the presidency with an expansive view of its power and an appetite to use it. Immediately, he decided to continue the war in the Philippines, cloaking his reliance on force there with irrelevant rhetoric. For example, he justified it as part of a mission to keep "barbarous and semi-barbarous peoples" in line, or as "a necessary international police duty which must be performed for the sake of the welfare of mankind." The casualties in this presidential policing, which he called the most glorious war in the nation's history, were lopsided. Some 4,200 Americans died while they killed 18,000 Filipino military, and through war-induced hunger and disease well over 100,000 Filipino civilians died.
Roosevelt also claimed success for presidential power in thwarting Germany in a crisis involving debts owed by Venezuela and for extorting a favorable boundary for Alaska at Canada's expense. In the Russo-Japanese War in 1904 and the Algeciras Conference in 1906 over the fate of Morocco, he meddled in foreign quarrels that only remotely touched American national interests. In haste to build a canal at the Isthmus of Panama, he used executive power to order warships and marines to wrench a province from Colombia, a weak country unable to counter with either effective diplomacy or force. Critics denounced his contention that he had a right to take Colombia's land as the robber's claim of might makes right. Admirers, though, perceived his Panama diplomacy as a symbol of presidential strength and a new American internationalism.
The president used similar big-stick tactics to coerce other small Latin American countries, rationalizing his actions with what became known as the Roosevelt Corollary to the Monroe Doctrine. Their "chronic wrong doing, or an impotence which results in a general loosening of the ties of civilized society," he explained, required him on behalf of a civilized nation, to exercise "an international police power." When he sent marines to occupy Cuba in September 1906, he defended his sidestepping of Congress with the argument "that it is for the enormous interest of this Government to strengthen and give independence to the Executive in dealing with foreign powers."
This conduct reflected Roosevelt's personal conception of executive authority. He believed "there inheres in the Presidency more power than in any office in any great republic or constitutional monarchy in modern times." He perceived no harm "from the concentration of powers in one man's hands," boasting he had "been President most emphatically" and had "used every ounce of power there was in the office." At another time he stated, "I believe in a strong executive; I believe in power." This attitude stemmed from Lincoln's exercise of executive power that Roosevelt adopted as his own and came to be known as the stewardship theory of the presidency. It claimed that "the executive power was limited only by specific restrictions appearing in the Constitution or imposed by Congress under its constitutional powers." Historians, popular writers, and others credit Roosevelt with transforming the presidency by bringing to it a popularity, an aggressiveness, a dynamic leadership, and an empowerment greater than in the past. Roosevelt's conduct marked a significant incremental change rather than a new transition from passiveness to strength.
Historians paint William Howard Taft as a passive executive who governed in the Whig tradition. Still, in foreign affairs he exercised his power aggressively in interventionist polices in Asia and Latin America, derided often as dollar diplomacy. Less flamboyantly than Roosevelt, he took upon himself the role of policeman. He ordered marines into Nicaragua and Honduras, ostensibly to protect American lives and property but basically to advance American economic interests. As in the past, Congress acquiesced in these uses of force. Some legislative skeptics, though, wanted to deny appropriations for these interventions without the consent of Congress, except in emergencies. When out of office, Taft defended his presidential style and attacked the stewardship theory. He maintained "that the President can exercise no power" unless granted by the Constitution or by an act of Congress. He had "no residuum of power which he can exercise because it seems to him to be in the public interest." Even so, Taft did not regard himself a passive leader.
Well before reaching the White House, Woodrow Wilson held clear-cut views on presidential power. As a young academic, he regarded Congress as possessing the dominant federal power and the chief executive as feeble. Four years before running for president, he reversed his outlook on how much power a president could command in competition with Congress. Once a president assumed control with popular backing, he maintained, no single force could withstand him. He "is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit." Wilson believed the president could exercise his greatest power in foreign affairs, primarily because of his ability to initiate policy. In sum, Wilson maintained that the executive "office will be as big and as influential as the man who occupies it."
In 1914, in a minor incident involving American sailors and a Mexican revolutionary leader Wilson detested, he decided to use military force. He claimed constitutional authority to act as he wished "without recourse to the Congress" but said he preferred to have its consent. The House approved his request. Before the Senate acted on the measure, however, a German ship with arms for revolutionaries headed for Vera cruz, and Wilson, on his assumed authority as commander in chief, ordered warships to bombard the city and troops to occupy it. The legislators then consented to a fait accompli. Outside Washington, most observers found no satisfying justification for this violence. Many perceived it as a capricious use of executive power against a feeble opponent.
Wilson relied on the same personal conviction of being compelled to act in support of a righteous cause in policing Haitians. When he wanted to extend the occupation of Haiti, his secretary of state told him international law could not justify it but humane reasons might. The president said he too feared "we have not the legal authority to do what we apparently ought to do." Nonetheless, he proceeded with the occupation. He reported his action to Congress only after he had taken control. As usual, by now in such unilateral intervention, Congress acquiesced. With similar reasoning, Wilson policed the Dominican Republic with U.S. troops commanded by a naval officer.
In 1916, when Mexican rebels command by Francisco "Pancho" Villa raided American border towns, raising demands in Congress and elsewhere for retaliation and even war, Wilson resisted. Then, for a number reasons, including an assumed need to appear tough to an electorate that would soon vote on his bid for a second term, he ordered an invasion of Mexico to capture and punish Villa. It brought the nation to the brink of war before the president pulled back to face a crisis with Germany.
When World War I erupted, Wilson proclaimed neutrality and, despite his feelings of kinship with England, tried to maintain a balanced policy toward the belligerents. When he took a hard position against Germany because of its submarine warfare against Allied and neutral shipping, his secretary of state, William Jennings Bryan, resigned in protest. He said the country opposed the intervention in Mexico and to being drawn into the war in Europe. Nonetheless, on his own authority in defiance of Congress and "without special warrant of law," the president armed merchant ships and took other measures against Germany.
Finally, Wilson declared German submarine attacks "a warfare against mankind" but did not ask Congress to declare war. Instead, he requested it to declare Germany's actions "nothing less than a war against the…United States," asserting that "the status of a belligerent" had been "thrust upon" the nation. People from all walks of life begged the legislators to vote against war, but Congress did as the president desired. As some biographers and others point out, Wilson's will and his exercise of presidential power stand out as decisive in taking the nation from neutrality to armed neutrality and then to war. Immediately, as commander in chief he requested, and Congress granted, vast authority to mobilize the nation's resources, a power he used dictatorially because he believed it necessary to win the war. He curbed civil liberties and squelched dissenters at home more fiercely than had Lincoln.
At his own discretion, the president also thrust 14,000 troops into Russia to fight Bolshevism, or what skeptics dubbed "Mr. Wilson's little war with Russia." On his own authority, he also dispatched troops to Manchuria. Critics attacked these interventions as usurping congressional authority. In 1919, Wilson broke the tradition of having the secretary of state and others negotiate with foreign leaders by himself leading the American delegation to the Paris Peace Conference. He thus set the precedent for presidents to participate in summit conferences. At Paris he exploited the prestige of his office and the force of his personality to achieve personal goals he identified with those of the nation. In this instance, his use of power backfired. When, as a semi paralyzed invalid, he insisted that the Senate approve the Treaty of Versailles with the League of Nations embedded in it, his exploitation of presidential power came to an end that he refused to recognize. He had lost the confidence of both Congress and the public.
In subsequent years, evaluators differed sharply, and sometimes emotionally, over Wilson's wielding of power in foreign relations. Friendly biographers and historians viewed his extension of presidential power, mostly in foreign affairs, as virtuous. They contend he performed extraordinarily well and praise him as a splendid example of the strong, decisive executive. Critics argue that he abused his powers, pointing out he had resorted to force more often than any previous president. Regardless of the varying perspectives on his handling of power, Wilson set new precedents for expanding the president's role in foreign affairs and domestically in matters related to war.
In part as a backlash against Wilson's perceived arrogance in wielding power, the electorate chose Warren G. Harding and then Calvin Coolidge to lead the nation. Both men usually left management of foreign affairs to their secretaries of state and diplomats in the field. Coolidge, though, drew on presidential authority according to precedent in what he termed police actions to protect American lives and property abroad. When he intervened in China with warships and marines, he said that the civil turmoil there had compelled him to employ force. When he deployed some 5,500 marines in Nicaragua, ostensibly to protect Americans and their investments but especially to battle revolutionaries he called bandits, Democrats called the clash his private war. Coolidge shot back that his actions no more constituted making war than those of a policeman carrying out his job. He demonstrated again that even a weak president could unilaterally use his power abroad on the basis of ideology or a personal agenda.
Herbert Hoover believed "the increasing ascendancy of the Executive over the Legislative arm…has run to great excesses" and that the legislature's authority "must be respected and strengthened." In his memoirs he stated that the "constitutional division of powers…was not designed as a battleground to display the prowess of Presidents." Yet as president, he wanted to shape foreign policy in his own way. He repudiated dollar diplomacy and promised not to use his foreign relations power to intervene in small states, as in Latin America. When Japan in 1931 seized Manchuria, he withheld recognition of the conquest but resisted pressure to impose economic sanctions on Japan because he believed they would trigger war. He opposed employing force because "it would be a recommendation that Congress should declare war." Contemporaries and numerous historians mark him as a failed president because he embraced what they called isolationism and refused to exercise his power expansively to combat the Great Depression or to police Japanese, Cubans, and others. Yet he did not act as a weakling. Unlike some other presidents, he used his power in foreign affairs to keep the nation at peace when some advisers wanted to court war.
THE WAR POWER AS PREROGATIVE
Franklin D. Roosevelt believed a president should exude strength and use his power boldly to achieve what he perceived as desirable goals. In his inaugural address in 1933, alluding to the nation's economic crisis he said, "I shall ask Congress for…broad Executive power to wage a war against the emergency, as great as the power that would be given me if we were in fact invaded by a foreign foe."
From the start, Roosevelt had to contend with the isolationist and revisionist theory that America's intervention in World War I had stemmed from a malign presidential discretion in foreign affairs. In 1936 his perspective on executive authority received a boost from the Supreme Court case United States v. Curtiss-Wright Export Corporation. This case involved the right of the president to ban the sale of arms to a belligerent, in this instance to Bolivia during the Chaco War with Paraguay. The Court's ruling, in the words of Justice George Sutherland, described the president incorrectly as "the sole organ of the federal government in the field of international relations." This decision would confer an erroneous legitimacy beyond the Constitution on the unilateral actions of executives in matters of war and peace. In contrast, the legislative branch wanted to prevent the president from manipulating the nation into war.
So, in legislation known as the neutrality acts, Congress placed restraints on the president's power in foreign affairs. Roosevelt disliked the laws but accepted them because they might quiet the public fear of "excessive fear of presidential control." In a speech in Chicago on 5 October 1937, he spoke out against the neutrality laws as favoring aggressors, whom he wanted to quarantine. He also expressed alarm over a referendum movement headed by Louis Ludlow, a Democratic representative from Indiana, that proposed a constitutional amendment requiring voter approval before a declaration of war could go into effect. Roosevelt contended it "would cripple any President in his conduct of our foreign relations." His opposition proved critical in defeating it.
As war loomed in Europe, Roosevelt became increasingly assertive about his foreign policy prerogatives, announcing in January 1939 he would as commander in chief provide arms to Britain and France for defense against Nazi Germany. In September, when Adolf Hitler triggered World War II by invading Poland, the president's standing in opinion polls shot up. Increasingly, he acted in foreign matters independently of Congress, as when Britain requested old warships in exchange for some of its bases in the Western Hemisphere. Even though legislation prohibited such a transaction, Roosevelt made use of Sutherland's opinion, circumvented the Senate, and made the deal. Critics condemned the swap as a breach of the Constitution and violation of international law, but it stood.
Proclaiming the United States the arsenal of democracy, Roosevelt in March 1941 persuaded Congress to pass the Lend-Lease Act, which permitted him to give arms to beleaguered Britain. Critics called it a qualified declaration of war and the most sweeping delegation of legislative power ever made to a president. When German submarines sank vessels carrying American munitions, he ordered the navy to patrol the North Atlantic sea lanes to protect the shipping. Patrol in this case functioned as a euphemism for convoy, an act of war under international law. By unilateral executive action he ordered troops to occupy Greenland, imposed increasingly stiff economic sanctions against Japan, and took over Iceland. By November, clashes with Axis submarines brought the United States into an undeclared naval war with Nazi Germany, a belligerent status he did not make clear to the American people. On his own authority, he also promised armed support to the British, Dutch, and Thais in Asia if Japan struck at them.
When Japan on 7 December 1941 attacked the United States, with Germany and Italy then declaring war, the president asked Congress to recognize that a state of war already existed. Political opponents and others charged him with leading the nation into war through deception via the back door of Asia rather than Europe and by maneuvering the Japanese into firing the first shot because he could not obtain enough support for a congressional declaration of war. No one had proof for these theories, but the president's supporters as well as his critics acknowledge that step by step he exploited his foreign relations power to move the nation toward active belligerency.
Roosevelt also utilized his augmented power to conduct the war with virtually dictatorial authority. He seldom referred to Congress, violated civil liberties by incarcerating with an executive order thousands of Japanese Americans, inaugurated secret security files on government employees, and instituted price controls. "This total war…," he told Congress, "makes the use of executive power far more essential than in any previous war." He added, "I shall not hesitate to use every power vested in me" to win the war. With Winston Churchill and Joseph Stalin at Yalta, he slipped around Congress with personal promises on territorial questions and international organization. He assumed full responsibility for developing the atomic bomb. Viewing himself as the nation's steward and his leadership role as personal and institutional, he rarely allowed anything to stand in the way of his exercise of power. The courts supported that role, upholding as constitutional every wartime measure he took. Nonetheless, his hoarding of power alarmed the enemies of executive aggrandizement.
In thirteen years, Roosevelt raised presidential power in foreign affairs to a level higher than that reached by any of his predecessors. As had Lincoln and Wilson, he upset the constitutional balance of checks and balances using the same justification of the need to rescue the nation from a great peril. Various scholars maintain he transformed the presidency, or, at least in the area of foreign policy, brought changes to it that have endured and influenced successors.
The public, together with academics who admired the strong president regardless of how he stretched his constitutional powers, welcomed the changes and praised Roosevelt and his leadership style. This admiration, along with the cumulative effect of the previous presidents who had swelled executive authority in dealing with foreign affairs, laid the basis for a kind of cult that exalted the presidency at the expense of Congress. The flowering of this cult could be seen during the presidency of Harry S. Truman and the start of the Cold War.
Roosevelt had kept Truman in the dark on the intricacies of foreign policy. For instance, Truman did not learn the details of the atomic arms project until several weeks into office, but he soon made one of his most controversial foreign policy decisions. He ordered the atomic bombing of Hiroshima and then of Nagasaki. Skeptics denounced this action as ethically wrong and unnecessary, but he took full responsibility for it as necessary to save lives. Thereafter, he became accustomed to wielding power and was determined to prove himself a take-charge executive.
Truman asked Congress to extend the executive's wartime power as Roosevelt had possessed it. In December 1945 the legislators agreed and Truman carried that authority into the Cold War. Largely at his insistence, in the Atomic Energy Act of August 1946, Congress placed control over nuclear weapons in the president's hands. Proponents of the strong-executive concept then began to argue that atomic weapons and the need for quick response to foreign dangers increased the need for presidents to have more power as commander in chief.
In January 1946, with an executive directive, Truman created a central intelligence agency group directly responsible to the president. In July 1947, in the National Security Act, Congress converted the group into the Central Intelligence Agency, later freed it from budgetary controls imposed on other agencies, and with it amplified presidential power abroad. In addition to analyzing intelligence, the CIA quickly engaged in covert activities. It thus came to serve as a shield for secret executive decisions on the use of military force. The legislation also established the National Security Council, a body designed to advise the president on all matters affecting military power and national security as well as foreign policy. Since the law, amended in 1949, required neither the council nor the national security adviser to be approved by Congress or to report to it, the act had the effect of enhancing the president's power in deploying the military on his own and on embarking unilaterally on foreign policy ventures that could lead to war.
As an avid anticommunist, Truman used his power to embark on a program, usually called the Truman Doctrine, of containing Soviet expansion, at first in Turkey and Greece and then in Western Europe with the Marshall Plan. This program, approved by Congress, became the vehicle for another expansion of executive authority in foreign affairs. It had precedents, as in Theodore Roosevelt's policing in the Caribbean, but since Truman viewed communism as a global threat, he asserted a right to intervene militarily anywhere in the world when he deemed the action proper. He converted the nation's military machine into the world's foremost anticommunist police force with himself as its commander in chief.
During a crisis that began when the Soviets in June 1948 blockaded Berlin, 110 miles into East Germany, the question of presidential power came up in the courts. As usual, they upheld executive activism, ruling that "the war power does not necessarily end with the cessation of hostilities." Justice Robert H. Jackson, who had justified the stretching of executive authority in the destroyer bases deal, objected to "this vague, undefined and undefinable 'war power'" that presidents "invoked in haste" to deal with crises, often of their own making. "No one will question," he wrote, "that this power is the most dangerous one to free government in the whole catalogue of powers."
Truman nonetheless pressed ahead with his Cold War policy. He negotiated and persuaded Congress to approve a series of multilateral treaties that ended the nation's traditional policy of avoiding formal alliances in time of peace. Consequently, the Inter-American Treaty of Reciprocal Assistance (1947, known also as the Rio Pact), the charter of the Organization of American States (1948), and the North Atlantic Treaty (1949) placed more of the war-making power in the executive branch.
In January 1950, as part of his anticommunist crusade, Truman on his own authorized the building of a hydrogen bomb. Five months later, he made another swift decision of worldwide significance. When communist forces from the north invaded the Republic of Korea to the south, he intervened militarily. In rushing into hostilities, he circumvented both Congress and the United Nations Security Council. When opponents in Congress wondered if Truman had arrogated to himself the authority of declaring war, he denied being at war. Using a traditional euphemism, he called the conflict a police action. Later, though, he contended that "when a nation is at war, its leader…ought to have all the tools available for that purpose." When pressed to seek a congressional declaration, he dismissed the idea because public opinion polls indicated broad support for his stance. When the war went badly, with mounting costs and casualties, the polls reported a sharp decline in his popularity and support for what many called "Truman's War."
As the discontent grew, so did distrust of presidential authority as wielded by Roosevelt and Truman. In consequence, in February 1951 a movement for a two-term cap for any president succeeded in making the limitation part of the Constitution as the Twenty-second Amendment. As time would reveal, it did not curb presidential power in foreign matters. In April 1952, when Truman seized steel mills under the guise of his war power, his elastic use of executive authority received another setback. In one of its rare decisions against a president in time of war, the Supreme Court ruled the takeover unconstitutional because it considered neither the Korean War nor the Cold War full-scale emergencies that justified such an arrogation of executive power.
Again, a president had amplified the foreign policy powers of his office beyond his predecessors. Where others had employed the military on their own in small ventures abroad or had maneuvered Congress and the public into supporting major wars, Truman, without congressional assent, initiated a large-scale war against a sovereign nation backed by two great powers. He and his advisers cited earlier small commitments of troops as precedents for his actions, but legal scholars pointed out that reliance on previous executive breaches of the constitutional war power did not legitimate subsequent violations. He and his advisers, such as Secretary of State Dean Acheson, also claimed that as commander in chief he possessed a prerogative to initiate war. Other presidents had also theorized about inherent power, but he became the first to exploit that concept as though it were fact. Regardless of the questioned legitimacy of Truman's use of the foreign policy power, other presidents would follow his lead.
COLD WAR INTERVENTIONISM
Dwight D. Eisenhower sought the presidency because he disliked the assaults on what he perceived, in his words, as "the President's constitutional rights, in peacetime, to deploy and dispose American forces according to his best judgment and without the specific approval of Congress." He regarded those rights as "unassailable" and wanted to thwart politicians in his own party, the Republicans, eager to diminish executive authority. He also had a Whig like conception of the office based on his conviction that Franklin Roosevelt and Truman had upset the proper balance between the branches of government at the expense of Congress. So, despite his determination to protect executive authority, contemporaries viewed him as opposed to aggrandizing the presidency.
In practice, Eisenhower, like Jefferson, did not allow abstract considerations to stand in the way of actions he perceived appropriate. To end the Korean War, for example, he informed the North Koreans through several channels that he would employ atomic weapons against them if they refused an armistice. He acted with similar determination when conservatives in his own party, led by Senator John W. Bricker of Ohio, tried, with a proposed constitutional amendment, to eliminate the president's power to make executive agreements. Eisenhower contended the measure would cripple executive authority in world affairs. "The President," he insisted, "must not be deprived of his historic position as spokesman for the nation in its relations with other countries." His opposition proved critical in the amendment's narrow defeat.
When the French, involved in an anticolonial war in Southeast Asia, begged the president to intervene to save troops beleaguered in a fortress in northern Vietnam, despite his deep anticommunist convictions, Eisenhower refused. "Part of my fundamental concept of the Presidency," he explained, "is that we have a constitutional government and only when there is a sudden, unforeseen emergency should the President put us into war without congressional sanction." Despite this perspective and contrary to what many assumed, Eisenhower was not a dove. He was willing to use armed force in Vietnam but only on his own terms.
At the same time, Eisenhower expanded use of the CIA as a weapon in covert Cold War armed ventures. With secret anticommunist operations he put aside the constitutional restraints on the presidency he professed to value. He ordered the CIA to topple Mohammed Mossadegh, Iran's nationalist prime minister, which with local help it did. Eisenhower also employed covert violence to overthrow the legally elected president of Guatemala, Jacobo Arbenz Guzmán, a populist he viewed as a communist. These episodes reveal that despite what contemporary pundits perceived as passive qualities in Eisenhower's leadership, when determined to attain his own foreign policy objectives, he would use a heavy hand.
Eisenhower exercised his power as commander in chief more openly when the People's Republic of China threatened to attack Chiang Kai-shek's Nationalist government on Taiwan (Formosa). When the mainland communists bombed Quemoy and Matsu, two offshore islands held by the Nationalists, his military advisers urged retaliatory strikes. Ike said no, indicating that against a major foe he would not use the war power lightly. Although Eisenhower assumed that in this situation as commander in chief he had authority to act on his own, he asked Congress for consent to deal with any emergency that might subsequently arise in the Taiwan Strait. He wanted to avoid the divisive debate that had followed Truman's intervention in Korea. Congress responded with a joint resolution authorizing him to use the armed forces "as he deemed necessary" to protect Taiwan and other islands in friendly hands. In voting this blank check, Congress diminished its own war power, enhanced that of the president, and opened a door for later presidents to seek similar authority.
Meanwhile, with a secret CIA operation the president had launched a program to foment rebellion in Eastern European countries that would liberate them from Soviet domination. Then, in October 1956, as he campaigned for reelection, students in Budapest, Hungary, revolted. When Soviet troops crushed the uprising, Eisenhower admitted he could do nothing tangible to aid them without risking a major war, thus recognizing the limitations on executive power. His decision also reflected what he had stated many times, that he would "never be guilty of any kind of action that can be interpreted as war until Congress, which has the constitutional authority, says so."
The foreign relations power also became an issue in a concurrent crisis. It began when Egyptian strongman Gamal Abdel Nasser seized the Suez Canal from its European owners. On 29 October 1956, Israeli troops, followed by British and French forces, invaded Egypt without informing their American ally. An angry Eisenhower condemned the attack, but when the Soviets threatened intervention, he ordered a partial mobilization of the armed forces. In addition, with economic and diplomatic pressure, he compelled the British, French, and Israelis to withdraw from Egypt. In this situation, he exercised his foreign policy power unilaterally, swiftly, and decisively.
Next, fearing that the Russians might still resort to force in the Middle East, Eisenhower moved to deter them. As during the Taiwan Strait crisis, he asked Congress to authorize him to employ the armed forces to defend the "independence and integrity" of Middle Eastern countries menaced by "communist armed aggression." After two months of debate, the legislators voted him another blank check, this one termed the Eisenhower Doctrine, that endorsed his role as a global, anti-Marxist policeman. A year later, the president applied the doctrine indirectly to a civil war in Lebanon. In his only overt intervention, in July 1958, on his authority as commander in chief, he ordered troops to invade Lebanon. Insisting he had not committed an act of war, Eisenhower argued he had acted within his constitutional authority and in keeping with executive precedents. Critics, though, maintained he had initiated a presidential war. At the same time, he used the CIA in a secret intervention in Indonesia designed to crumble the regime of Achmad Sukarno, considered too cozy with communists. Popular sentiment could speak less clearly on Eisenhower's overt and covert policy toward a left-wing revolutionary government in Cuba headed by Fidel Castro. At his discretion, the CIA clandestinely launched commando strikes against Castro, hatched schemes to assassinate him, and planned, with Cuban exiles in Florida, an invasion of the island. Before Eisenhower could unleash this operation, his presidency ended.
Analysts differ in their assessments of Eisenhower as president and his use of power in foreign affairs. Some say he delegated too much of his authority while others portray him as a strong executive who exercised his power with a hidden hand. He claimed to have had the final word in every major foreign policy issue and hence had served as an activist president. He also believed that he had curbed executive aggrandizement. Yet, through his aggressive anticommunist ventures, his covert operations, and the global reach of American power, under him the power of the president in foreign affairs as commander in chief continued to rise.
During the presidential election campaign of 1960, John F. Kennedy announced he would "be the Chief Executive in every sense of the word" and that the president should "exercise the fullest powers of his office—all that are specified and some that are not." He also carried into office a preference for dealing with foreign over domestic affairs. For instance, he devoted most of his inaugural address to the Cold War. "Domestic policy," he later repeated, "can only defeat us, foreign policy can kill us."
Into his official family Kennedy brought intellectual young zealots "full of belligerence," as one of them later remarked, who admired the concept of the tough, activist executive. With them he quickly immersed himself in the details of foreign policy, deciding at the outset to continue Eisenhower's covert plan to crush Cuba's Castro. Most of Kennedy's intimate advisers backed the venture. Among the few who knew of it, Senator J. William Fulbright, chairman of the Senate Committee on Foreign Relations, objected. He pointed out that "the Castro regime is a thorn in the flesh, but it is not a dagger in the heart." Dismissing this advice, Kennedy continued the practice of using the CIA to harass Cubans and prepare for an invasion, which, without the consent of Congress, he launched on 17 April 1961, on Cuba's south shore at the Bay of Pigs. It turned into a fiasco, for which the president publicly accepted blame. Despite the bloody blunder, polls showed that his popularity shot up. In a private discussion of the disaster, he asked, "It really is true that foreign affairs is the only important issue for a President to handle, isn't it?…Who gives a shit if the minimum wage is $1.15 or $1.25 in comparison to something like this?" As confidants noted, Castro then became a personal affront, an obsession that Kennedy transmuted into a threat to American security. He persevered, therefore, in covert efforts to overthrow the dictator.
At the same time, Kennedy had to deal with the Berlin question. Soviet premier Nikita Khrushchev renewed demands that Allied occupiers depart the city and set a deadline with an implied threat of war if not met. With a determination to show toughness, Kennedy prepared for possible hostilities. He expanded the armed forces, ordered reservists to active duty, and asked Congress for an additional $3 billion in military spending, which it granted. When this crisis passed, he again focused on Castro.
State Department officials and others reported the presence of Soviet troops and missiles in Cuba. Kennedy warned that if the communist buildup menaced American security, he would take forceful action. He said that "as President and Commander in Chief" he had full authority to act on his own. But he did request Congress to endorse the use of arms. It agreed overwhelmingly with a joint resolution. On 14 October 1962, when a U-2 surveillance plane reported Soviet launching pads in Cuba with medium-range missiles targeted on American cities, the crisis deepened. Initially, as his closest advisers urged, the president wanted to respond with air strikes on Cuba and even possibly on the Soviet Union. After six days of discussion, he chose to ring Cuba with a naval blockade he called a quarantine. If the Soviets challenged it, the world would face its first nuclear war. Except for a few friendly members whom the president had informed of his decisions, Congress had no role in this war scare. Fortunately, Khrushchev backed down and the crisis passed. With toughness, the president appeared to have won a great diplomatic victory.
Kennedy's admirers praised his behavior as brilliant, as an example of "genuine statesmanship" that in thirteen critical days "dazzled the world," and as the greatest achievement of his presidency. They cited his conduct as validation for supreme presidential control over foreign policy and war-making in the nuclear age. Skeptics, and even several close advisers, thought differently. They perceived his rattling of nuclear arms as irresponsible and reckless. One critic commented that he risked "blowing the world to hell in order to sweep a few Democrats into office" in forthcoming congressional elections. Others questioned the wisdom of placing so much power in the hands of one man. As for the public, that power did not bother it much. Polls showed that after the crisis, Kennedy's approval rating climbed from 61 to 84 percent. Later, when Soviet sources revealed the presence of nuclear weapons in Cuba, Kennedy's conduct proved more prudent than either the public or detractors had realized.
Elsewhere, Kennedy continued his armed interventionism, as in the Dominican Republic to get rid of an aging dictator and to aid Joaquín Belaguer, a leader he thought would edge the republic toward democracy. When elections brought to power a left-wing intellectual, Kennedy refused to help him because he saw him as tainted with communism. As in other instances, the personal perception of a president, as much as policy considerations, governed use of the foreign policy power.
This happened also in Southeast Asia, where Kennedy accepted Eisenhower's domino theory that if communism prevailed in one country, as in Laos or Vietnam, it would spread over the entire region. Kennedy believed that if he tolerated communism there, he could not win reelection. So, he poured economic and military assistance into the anticommunist Republic of Vietnam. In addition, he sent in military advisers, who ferried troops into battle against local communists called Vietcong and against northern communists. Ultimately, he committed more than 16,000 troops to the anticommunist side in the civil wars in Laos and Vietnam.
Kennedy left a mixed legacy. Strong-presidency believers praise him as a vigorous, charismatic leader who understood the true art of statecraft. Other appraisers charge him with crisis mongering, escalating the arms race, and being enamored with military power. His unilateral use of power abroad, his conviction that he must make his mark primarily in foreign affairs, and his belief in an exceptional authority in those affairs, reflected the prevailing public approval of an expansive presidential power.
PRESIDENTIAL WAR IN VIETNAM
As an experienced politician, Lyndon B. Johnson moved swiftly to exploit this sentiment. Johnson told an aide, "Just you remember this: There's only two kinds at the White House. There's elephants and there's pissants. And I'm the only elephant." This attitude encapsulated Johnson's conception of the presidency. He saw the president as the initiator of major legislation, the creator of the national agenda, and the dominant force in foreign affairs. "The congressional role in national security," he maintained, "is not to act but to respond to the executive." He proceeded with this perspective in dealing with the warfare in Southeast Asia. "I am not going to lose Vietnam," he told an ambassador. Accordingly he sent more troops to South Vietnam and instituted secret incursions along North Vietnam's coast and naval patrols in the Gulf of Tonkin. This activity led to escalating clashes with North Vietnamese forces. After an alleged second torpedo boat attack on U.S. naval vessels, without verifying the reality of the assault and determined to give the communists "a real dose," Johnson ordered massive bombing of North Vietnamese coastal bases. Then he asked Congress for a resolution, modeled on that handed to Eisenhower in the Taiwan crises. With it, Congress promised to support all measures he would take against armed attacks or to prevent aggression. Only two senators objected to this open-ended grant of power. One of them pointed out that "the Constitution does not permit the President to wage war at his discretion."
Johnson argued he possessed that power but wanted it reinforced by the resolution, which he compared to Grandma's nightshirt because "it covered everything." He also made clear the decision to use force "was mine—and mine alone." On this basis, initially with high public approval as measured by polls, he steadily enlarged the American war in Vietnam. Slowly, though, an antiwar movement gained support and spread over the country. Some of its leaders accused him of seeking support for a war that involved no vital national interest by lying to the public.
Briefly, Johnson's intervention in a civil conflict in the Dominican Republic in April 1965 shifted attention from the Vietnam debate. He gave a variety of reasons for deploying 23,000 troops on the island. Most often, he said he acted to avert a communist takeover and to protect endangered American lives. The occupiers found no evidence of a communist plot or peril to American lives. At home and abroad, jurists and others denounced the intervention as a violation of international law. Domestic critics pointed out that he had invaded without seeking congressional consent. He responded that he merely exercised what had become traditional executive power in foreign affairs.
Johnson offered similar rationalization for making war in Vietnam. He cited the Tonkin Gulf resolution as evidence of congressional support for his policy but asserted that he did not need its approval because the "Commander in Chief has all the authority that I am exercising." In the summer of 1966, as the public's approval rating of his presidency plummeted, he said defiantly, "I'm not going down in history as the first American President who lost a war." He persisted in viewing conflict largely in terms of his own stake in it, which he stretched to identify with the national interest. He spoke of "my troops" and of his war that he would run his way.
In an effort to refute critics, Johnson ordered the State Department to prepare a tract justifying the war. Dutifully, a subordinate argued that the president had ample authority to use force on his own, to decide what constituted an attack on the United States, and thus to commit troops anywhere in the world for such defense. He cited the Quasi-War and the Korean War as precedents, thus in the latter case using an example of dubious constitutionality to sanction another case of questionable validity. All the while, antiwar activists denounced Johnson as a "slob" and "murderer." This personal disdain stained the presidency. Reverence for it declined. Polls indicated that about half the public considered the war a mistake. Johnson took criticism personally, dismissing it usually as unpatriotic. He placed antiwar leaders under surveillance and violated their civil rights. At one point he blurted, "This is not Johnson's war. This is America's war."
Finally, much of the public and various legislators, even in the president's own party, could stand no more. They said he had come to exercise "virtually plenary power to determine foreign policy" and "it is time for us to end the continual erosion of legislative authority." Gallup polls showed that the public view of the war as wrong had risen to 79 percent. Then, when a primary in New Hampshire indicated that Johnson could not win reelection, he withdrew his candidacy. The pubic did not turn against Johnson for using power illegitimately, for lying, or for waging war unilaterally. They wanted him out because of a failed use of the foreign affairs power in a war with high casualties and no benefits. Americans had tolerated, and even praised, comparable use of the war power by other presidents. None, though, had exploited that power as outrageously as he did. With that power he ran amok but did not, as some analysts claim, weaken the presidency. Although Richard M. Nixon, in his second bid for the presidency in 1968, benefited from the backlash against Johnson's Vietnam policy, he too believed in the concept of executive supremacy in foreign affairs. Like Johnson, Nixon was a man of vaulting ambition well known for his hawkish views on the war. In his election campaign he stressed that "the next President must take an activist view of his office" and have a strong will. Nixon maintained that bold initiatives abroad always had come from strong presidents. In office, he acted on that premise.
From the start, Vietnam clouded Nixon's administration. Even though he had promised to terminate the entanglement there, at his inaugural, antiwar demonstrators—shouting "Four more years of death!"—pelted his limousine with debris. Undeterred, he reshaped Johnson's Vietnam policy while retaining its substance. He continued an air war in Laos and peace negotiations in Paris, began sustained bombing of North Vietnam, and launched secret air strikes in neutral Cambodia. We must, he explained, negotiate from strength and not withdraw unilaterally from the conflict in Southeast Asia.
Alarmed senators then passed a resolution that deplored past executive excesses and recognized no presidential commitment to continue the war. Claiming that as commander in chief he possessed sole authority over the armed forces and could order them abroad without specific congressional approval, Nixon ignored the resolution. He thereby charted a collision course with Congress. He did pull some troops out of Vietnam, but peace advocates complained about the slow pace. As antiwar demonstrations escalated, Nixon bristled. As had Johnson, he declared he would not be the "first American President to lose a war." Polls taken at this time, October 1969, indicated majority support for his position.
In April of the next year, without consulting Congress, the president launched an invasion of Cambodia, justifying it with various explanations such as routing North Vietnamese ensconced there. "Bold decisions," he said, "make history." A substantial segment of the public viewed the action differently, as an unwarranted widening of the war. Peace demonstrations escalated across the nation. To counter the furor, Nixon asked the State Department to make a case for his decision. Accordingly, an assistant attorney general, William H. Rehnquist, argued that as commanders in chief, presidents had the authority to order troops "into conflict with foreign powers on their own initiative" and even to deploy them "in a way that invited hostile retaliation." Hence, Nixon had acted properly. Historian Arthur M. Schlesinger Jr. dismissed Rehnquist's contention as "persiflage"—compromising historical and legal scholarship for service to his client. Congress then revived an endeavor to restrain the president's assumed power to make war unilaterally. The Senate passed a bill forbidding involvement in Cambodia without its consent and repealed the Tonkin Gulf Resolution. Nixon dismissed these measures, avowing that as commander in chief he could maintain the warfare on his own. At this juncture, for seemingly personal reasons, Nixon unilaterally made another controversial foreign relations decision. In a war between India and Pakistan that broke out in December 1971, despite considerable sentiment for at least neutrality, he sided with Pakistan. He ordered a naval task force into the Bay of Bengal to intimidate India. Critics pointed out that the United States had no vital stake in the conflict, yet he alienated India and risked possible war with the Soviets, who sided with India. In February he did enhance his image as a maker of foreign policy with a trip to the People's Republic of China that initiated a détente with that old foe.
In December 1972, Nixon ordered twelve days of around-the-clock bombing of Hanoi and Haiphong. Critics denounced it as war by tantrum, as violence beyond all reason, and called him a maddened tyrant. He responded that if the Russians and Chinese thought "they were dealing with a madman," they might then "force North Vietnam into a settlement before the world was consumed by larger war." Finally, public pressure drove him in January to conclude cease-fire accords with North Vietnam, but he continued secret bombing raids in Cambodia and Laos as well as aid to anticommunist regimes in the region. When these actions became known, Congress decided to enact "definite, unmistakable procedures to prevent future undeclared wars." It compelled Nixon to end hostile actions in Indochina.
Meanwhile, the Cold War presidential practice of covertly aiding conservative candidates for high office in foreign countries backfired. Nixon had directed the CIA to block Salvador Allende Gossens, a socialist legally elected president in Chile, from taking office. When that effort failed, Nixon ordered the CIA to organize a military coup against Allende that on 12 September 1973 led to his murder and to a right-wing dictatorship in Chile.
In October, as Nixon's involvement in the Watergate scandal came to light, the Yom Kippur War between Israel and Egypt and Syria erupted. He airlifted supplies to Israel. To counter an alleged Soviet plan to intervene, he ordered a worldwide alert of U.S. forces, including nuclear strike forces. Critics regarded this order as unnecessarily drastic. They suspected he issued it to divert public attention from his troubles with Congress, or as an example of using the foreign policy power to deal with domestic political exigencies. Then, on 7 November, after decades of debate over the war-making capacity in the president's foreign-affairs power, Congress overrode Nixon's veto to adopt the War Powers Resolution. It required the president, in the absence of a declaration of war, to report to Congress within forty-eight hours after ordering troops into a foreign conflict. Unless the legislators approved a longer deployment, he had to withdraw the force within sixty days. The law allowed an extension of thirty days if the president deemed that time necessary for a safe withdrawal. It also placed curbs on his ability to circumvent Congress, to deploy armed forces in hostile situations, and to engage in covert military ventures. But by permitting the president to deploy forces for a limited time without congressional consent, it subverted the aim of collective decision making in foreign policy. As skeptics pointed out, the resolution delegated to the president more power in foreign affairs than the Constitution allowed. It granted him freedom to wage war for several months anywhere in the world as he chose.
Despite his critics and facing impeachment, Nixon contended he had acted much like other strong executives who had taken for granted an inherent right to employ their foreign policy power to intervene unilaterally in other nations, especially weak ones. They, too, had lied, acted covertly, and had skirted Congress. Only he suffered punishment, and only because of evidence uncovered in secret tapes he made of White House conversations about his involvement in the Watergate scandal. This was true, but he did abuse the foreign policy power more than his predecessors.
While out of office, Nixon continued to defend his extravagant conception of the strong executive. He contended that in wartime the president has "certain extraordinary powers" that make otherwise illegal acts lawful when taken to preserve the nation. In this perspective, the president alone decided what served the best interest of the nation. Critics maintained that with such views and his behavior, primarily in foreign affairs, he demonstrated that unrestrained power in the hands of a paranoid president could endanger democratic government.
REVIVAL OF THE STRONG PRESIDENCY CULT
On taking over the presidency in 1974 after Nixon's resignation, Gerald R. Ford made clear he would continue his predecessor's war policy and that he had no intention of reducing what he perceived as the executive's power in foreign affairs. In his first speech before Congress, he expressed briefly his view of that authority: "Throughout my public service, I have upheld all our Presidents when they spoke for my country to the world. I believe the Constitution commands this." For example, he continued covert operations. So, in the Foreign Assistance Act of 1974, Congress placed minor restraints on this practice. With this law, for the first time it openly recognized the president's assumed power to engage in covert ventures in the name of national security. Congress thus augmented the executive's power to initiate warfare unilaterally.
Ford tried to salvage what remained of Nixon's policy by asking Congress for $972 million in military and other aid for South Vietnam. Congress refused. In April 1975 the government of South Vietnam collapsed and the northern communists took over, uniting Vietnam. Several weeks later, when a Khmer Rouge, or communist, gunboat seized an American merchant ship, the SS Mayaguez, sixty miles off the Cambodian coast, Ford called the capture piracy and demanded release of the vessel and crew. Tardily, the Cambodian communists said they would free the men and ship. Determined to demonstrate that the commander in chief could still flex muscle, Ford resorted to force. Furthermore, instead of consulting Congress as the War Powers Resolution required, Ford "informed" it of his decision to use force. He ordered air strikes on Cambodian bases and marine commandos to rescue forty crew members already out of danger at the cost of eighteen marines and twenty-three Air Force personnel dead. Ford's popularity zoomed upward because, as Senator Barry Goldwater commented, he had not allowed "some half-assed country" to kick him around. Admirers of the strong presidency called the venture Ford's finest moment. Critics denounced this "indulgence in machismo diplomacy" as "another example of military overkill and trigger happiness." Once more, a supposedly weak president, without significant restraint by law or Congress, for personal benefit used his foreign affairs power to magnify a minor incident into an unnecessary crisis.
In his bid for the presidency, Jimmy Carter promised a foreign policy that would distinguish the United States as "a beacon light for human rights throughout the world." He also denounced covert military operations and intervention in the internal affairs of other countries. The foreign policy crisis that most bedeviled Carter's administration began with the overthrow of Shah Mohammad Reza Pahlavi of Iran. In November 1979 the trouble escalated when a mob in Teheran invaded the American embassy and seized a hundred people as hostages. When Carter failed to obtain their release through diplomacy and the crisis threatened to torpedo his chances for reelection, he decided on force in his capacity as commander in chief. He did not consult Congress, because, he contended, in this instance the War Powers Resolution did not apply. As had other presidents involved in questionable military strikes, he claimed an "inherent constitutional right" to act unilaterally. So, on his orders, on 24 April 1980, a commando group attempted by air to rescue the hostages. The operation failed, and much of the public viewed it as fiasco. Carter did not, as some advisers urged, try to smother his failure with a massive show of force and possibly war.
A civil war in Afghanistan followed by a massive invasion of Soviet troops also led Carter to shift his attitude toward the use of his power in foreign affairs. He imposed sanctions on the Soviet Union and, when they did not work as desired, exaggerated the Soviet threat to American security. He warned the Soviets that if they seized the Persian Gulf, war would follow. When European allies opposed this bellicosity, Carter pulled back. He then embarked on a program of supposedly covert aid to the Afghans. Carter exhibited less reluctance to use force in perceived low-risk, undercover interventions in Central America and Africa. Despite his tough moments, Carter did use foreign policy power effectively but for human rights and peace rather than for war.
In campaigning for the presidency, Ronald Reagan disparaged Carter for bungling the Iranian crisis, described the Vietnam War as a noble cause, promised to deal harshly with terrorists, and declared he would regenerate American pride. He pictured communism as a monolithic enemy and the Soviet Union as an "evil empire." He said little about theories of executive power, even when in office. In foreign affairs matters that interested him, however, he was an activist, hands-on executive. Reagan began using his power promptly by directing the CIA to engage in domestic spying, clandestine foreign ventures, and surveillance of Americans abroad. Within three years, he launched more than fifty covert operations, more than half of them in Central and South America. He claimed, in a form of intervention that became known as the Reagan Doctrine, the right to support with arms and other means "people fighting for their freedom against Communism wherever they were." Most international jurists regarded this globalism untenable in law.
Reagan applied his doctrine most tenaciously in Nicaragua, where, starting in March 1981, he ordered the CIA to conduct military operations against a Marxist government. The agency created an army of military adventurers and anticommunists in Honduras, called contras, from the abbreviation in Spanish for counterrevolutionaries, to carry out this mission. When the intervention became known in the United States, several legislators charged Reagan with violating the War Powers Act, but he persisted with impunity. Finally, in three pieces of legislation known as the Boland Acts, Congress cut off direct executive aid to the contras.
At the same time, in a quarrel with Libyan dictator Muammar al-Qaddafi, Reagan, as commander in chief, ordered the Sixth Fleet to Libyan waters. In a violent confrontation, it destroyed two Libyan warplanes. Reagan again defied the War Powers Resolution by twice deploying hundreds of troops in Lebanon to aid a conservative government fighting a civil war. After the fact, Congress approved this commitment. Rebels in Beirut attacked the troops, and U.S. warships shelled rebel positions. In October 1983 a rebel suicide bomber in a truck crashed through the American compound, slaughtering 241 marines. In December, after a minor confrontation, U.S. forces struck at Syria. Fearing that the casualties would become a damaging issue in the forthcoming presidential election, Reagan reluctantly removed the troops from the area.
Earlier the president had manufactured another crisis, this one on the island of Grenada in the Caribbean, reputedly to divert attention from the Beirut losses. He intervened there with some 2,000 troops to oust a far-left regime that, he said, without substantiation, threatened the lives of American students living there. He again violated the War Powers Act but defended his unilateral violence as within his power as commander in chief. Some Democrats demanded enforcement of the law and seven asked for impeachment, but Congress stood by the president. He called the events in Lebanon and Grenada "closely linked," because "Moscow assisted and encouraged the violence in both countries." Polls showed that Americans, by a margin of 90 percent, approved his bashing of Grenada.
Later, again on meager evidence, Reagan blamed Qaddafi for the bombing of a disco in Berlin frequented by American servicemen. In retaliation, he ordered the bombing of Benghazi, killing scores of civilians but not the dictator. Jurists maintained Reagan had unilaterally carried out an act of war, and again violated the War Powers Act. Similarly, in his proxy war in Nicaragua, he breached international law by having the CIA lay magnetic mines in three of that nation's harbors. Later, the International Court of Justice at The Hague found the United States guilty of an unlawful use of force. Reagan dismissed the condemnation without qualm.
Finally, the president's illegal use of his foreign policy power led to negative repercussions. Congress had banned the export of arms to Iran, but Reagan's subordinates secretly sold it weapons to finance the undercover contras, contrary to the Boland laws. They also used some of the money for ransom for release of American hostages in Lebanon. When details of this Iran-Contra affair leaked to the public, the president's popularity plummeted. Some legislators again talked of impeachment. Initially, Reagan denied knowledge of the affair. Later, he admitted that the decision to trade arms for hostages was his. Senate and House investigating committees concluded he had been responsible, but neither Congress nor the courts held him accountable for his illicit actions.
Reagan continued to use force in the Persian Gulf, in Nicaragua, and indirectly in covert aid in Afghanistan against the Russians. When the Russians withdrew in 1988, he and his aides touted their retreat as a victory for the Reagan Doctrine. When he left office, harsh critics stood by their characterization of him as an amiable dunce, but most of the public thought differently. It overlooked or forgave his illicit behavior to view him as a decisive leader who had regained for the presidency much of the foreign relations power it presumably had lost in the Watergate scandal.
In contrast to Reagan, George H. W. Bush initially seemed bland, but he sought to demonstrate qualities as a strong, activist leader in a clash with the small-time Panamanian dictator Manuel Antonio Noriega, who had been on the payroll of Washington intelligence agencies but lost favor because of criminal activity. The Reagan administration had imposed economic sanctions against Panama, and Bush quickly assigned high priority to Noriega's removal, through various means including a coup. This strategy fizzled, leading hard-liners to speak of executive weakness.
When questioned about ousting the dictator, Bush answered, "Well, I want as broad a power as possible, and I think under the Constitution the President has it." He "has broad powers, broader than some in the Senate or the House might think." On this assumption, Bush exploited a clash between Panamanian soldiers and two American servicemen as a reason to resort openly to force. On 15 December 1989, on his own as commander in chief, he ordered the invasion of Panama. Six weeks later, U.S. troops captured Noriega. Ultimately a U.S. court tried, convicted, and jailed him.
Many Americans asked why this massive force over a minor quarrel? The president came up with a variety of answers, including self-defense, upholding democracy, and protecting American lives. Skeptics dismissed the arguments as flimsy, pointing out that virtually every day in some part of the world somebody harassed Americans. To safeguard them or uphold nascent democracy everywhere with bayonets would commit the nation to endless hostilities. They accused Bush of using violence politically to dispel the wimp factor. The General Assembly of the United Nations condemned the invasion as a "flagrant violation" of international law, but Americans overwhelmingly approved the muscle-flexing. Hence, only a few legislators challenged the president's defiance of the War Powers Act. The House even passed a resolution praising him for his decisive action.
Seemingly intoxicated by such commendation, the president turned on another international villain, Iraq's Saddam Hussein. On 2 August 1990, some 80,000 Iraqi troops invaded and quickly overran Kuwait. Properly condemning the invasion as "naked aggression," Bush took the lead in a movement to reverse it. The American public and the United Nations supported him in a policy of sanctions against Hussein. Impatiently, Bush decided sanctions took too long to work, prepared for war, and claimed he did not need congressional assent before taking military action. Many legislators disagreed. Senator Daniel P. Moynihan of New York pointed out that "the great armed force" created to fight the Cold War was now "at the president's own disposal for any diversion he may wish, no matter what it costs." Undeterred, Bush insisted that "I have the right, as commander in chief, to fulfill my responsibilities, and I'm going to safeguard those executive powers." Fifty-four legislators filed suit in a federal court to prohibit the president from using force without congressional authorization. The court ruled the suit premature but reiterated that only Congress could declare war. Still, Bush announced that no matter what Congress or the people had to say, he would decide for or against war. As had various predecessors, he cited flawed precedents for presidential war-making. Most of the media sided with him.
Finally, the president gave in to pressure from advisers not to defy Congress but to persuade it to go along with him. He asked for a resolution approving force but not for a declaration of war. Congress agreed and on a partisan vote narrowly passed such a measure, thus sanctioning a presidential war. On 16 January 1991 he led the nation into war. Two days later, he informed Congress of his action, in a manner, he said, "consistent with the War Powers Resolution." In the Gulf War of 1991, the U.S. military juggernaut blasted the Iraqis into a lopsided defeat, Bush's popularity rating zoomed to an unprecedented height, and he bathed in the glory of a Caesar.
During Bush's term, the Soviet Union broke up, the Cold War ended, and ethnic strife tore apart Yugoslavia. He campaigned for reelection as a successful war leader and the master of an aggressive foreign policy, who, along with Reagan, had finalized the winning of the Cold War. But he lost. Nonetheless, as a lame duck president, he once more exercised his power as commander in chief. For humanitarian reasons, or what he called "God's work," he intervened in Somalia, torn apart by civil war and famine. He ordered more than 30,000 troops to take "whatever action is necessary" to carry out their mission. As various analysts noted, Bush with his war-making pushed the presidential power in foreign affairs to its outer limits.
THE INDISPENSABLE NATION AND PRESIDENT?
During his run for the presidency, William Jefferson Clinton campaigned on a domestic program. When he did refer to foreign affairs, he tried to sound tougher than Bush. For instance, Clinton favored forcible intervention in the Bosnian civil war to punish aggressive Serbs. As president, his first major foreign policy decision was on the peacekeeping mission in Somalia. Initially, Clinton anticipated no difficulties because he planned gradually to withdraw U.S. troops and turn over the operation to the United Nations. When clan warriors killed Pakistani peacekeepers and wounded American soldiers, that goal changed. The president authorized U.S. troops to use force against what he called "two-bit" terrorists. When Somalis killed eighteen Americans and wounded seventy-four, Clinton ordered 5,000 more troops, heavy armor, and additional warships to Somalia. What had started as a humanitarian mission took on the coloring of a military occupation. This change alarmed many in Congress. Some talked of placing restrictions on how the president could deploy the armed forces. As had predecessors in comparable circumstances, Clinton contended questionably that the executive possessed the ultimate authority on the use of troops. Finally, without relinquishing this claim but in reaction to the criticism, he withdrew the forces from Somalia.
During this episode, the president also flexed muscle in the Middle East. He learned of an alleged plot to assassinate George Bush while the former president was visiting Kuwait in April 1993. The CIA attributed this conspiracy to Saddam Hussein. Denouncing it as "an attack against our country and against all Americans," Clinton on 26 June ordered a missile attack on battered Baghdad. Constitutional lawyers commented that "calling the U.S. bombing of Iraq an act of selfdefense for an assassination plot that had been averted two months previously is quite a stretch." Other skeptics viewed this exercise in force as personal, or as countering a reputation for indecisiveness with an image of a strong, assertive leader. The tactic worked. According to polls, the public approved of the president's rash resort to force by a large margin.
Concurrently, Clinton plunged into another sticky minor foreign problem, this one involving corruption in Haiti and special-interest group politics in the United States. In a coup, militarists ejected Jean-Bertrand Aristide, Haiti's first elected president, from office. Various liberal groups, media pundits, and especially the congressional black caucus demanded that Clinton restore Aristide to power. The president agreed. He tightened sanctions against the island republic, ordered warships to patrol its waters, and placed troops on alert for a possible invasion. He justified his actions with what he designated as important national interests in Haiti, a need to protect American lives there, and an obligation to promote democracy. In Congress, dissenters came up with legislation to prevent Clinton from committing troops. He denounced the proposal as encroaching "on the President's foreign policy powers." Congress avoided a direct clash with a nonbinding resolution that opposed the executive actions. Involved legislators asked should a president act as a global gendarme with authority to intervene with force whenever dictators seize or hold power anywhere. Others perceived personal or domestic political considerations as motivating the president's determination to move on his own. Advisers admitted that in this manner Clinton would demonstrate "the president's decision making capability" and his firmness in using his foreign affairs power.
Clinton remained defiant, announcing that, like predecessors, he did not regard himself "constitutionally mandated" to obtain congressional approval before invading. He also repeated muddled justifications, such as a duty to secure the nation's borders and safeguard national security, though neither was threatened. At the last minute, in September 1994, he avoided another clash with Congress by accepting an arrangement that permitted the Haitian militarists to retreat peacefully and made a hostile invasion unnecessary. American troops then occupied the country and returned Aristide to power. Clinton boasted, "We celebrate the return of democracy," even though democracy had never flowered in Haiti. Two years later, the occupation officially ended without violent mishap. The administration touted it as a foreign policy triumph but others viewed it as a revival of big-stick paternalism. The intervention and $2.2 billion in aid produced neither democracy nor well-being. In Haiti viable politics and the economy crumbled.
Clinton also embroiled himself in controversy over brutal ethnic warfare in former Yugoslavia, expressing a desire to intervene for the laudable purpose of protecting human rights. "We have an interest," he said, "in standing up against the principle of ethnic cleansing." He intruded in a number of instances with food and medicine air drops for beleaguered Muslims in Bosnia, with deployment of a few hundred troops in Macedonia, and with bombings and other attacks on Serb forces. Finally, in a conference in Dayton, Ohio, in November 1995, Clinton brokered an end to the civil war in Bosnia. He considered the peace agreement a diplomatic triumph, but it had problems. The settlement called for deployment of 23,000 U.S. ground troops as part of a NATO peacekeeping mission. A majority in Congress and most Americans opposed the policing commitment. Regardless, Clinton deployed the troops, counting on the usual rally-round-the flag attitude of the public when soldiers were placed in harm's way. As aides admitted, the decision in an election year also had a political dimension. It could increase his stature as a bold leader. He had learned, a staffer asserted, "that foreign policy can help your image. It makes him look like a president." Ultimately, the Senate backed the troop commitment and, as anticipated, the public rallied behind the president.
Clinton also flexed muscle over an incident with Castro's Cuba and another with China over Taiwan, and continued to blast Iraq with missile attacks. In these crises the president portrayed himself as a global crusader committed to combating evil. At the start of his second term, he explained this concept as part of doing "what it takes to remain the indispensable nation…for another fifty years."
Two years later, on 7 August 1998, while Clinton was entangled in scandal over a relationship with Monica Lewinsky, a young White House intern, terrorists bombed American embassies in Kenya and Tanzania. Ten days later, he publicly admitted the sexual liaison and three days after that ordered missile attacks on suspected terrorists in Sudan and Afghanistan. Opponents accused him of using violence abroad to divert attention from a domestic problem. On 19 December, the House of Representatives voted to impeach Clinton on charges of perjury and abuse of power related to the Lewinsky affair. On 12 February 1999, after a five-week trial, the Senate acquitted Clinton. A month later, when asked if he had damaged the Office of the President, Clinton responded, "I hope the presidency has not been harmed. I don't believe it has been."
Clinton continued to exercise his foreign relations power boldly, primarily against another international villain, Slobodan Milosevic, the hard-line president of what remained of Yugoslavia. Clinton accused him of brutal ethnic cleansing of Albanian residents in the Serb province of Kosovo and decided to employ force against him. Clinton explained this decision, as a skeptic pointed out, with an "orgy of analogy" that included an obligation to humanity to halt what he termed genocide, defend American interests, stop Serb aggression, and enforce democratic values. Critics asked, why the selective humanitarianism? Did not genocide in Rwanda, Chinese brutalities against Tibetans, Russian repression in Chechnya, ethnic horrors in the Sudan, and Taliban atrocities in Afghanistan call for comparable military intervention?
Regardless, on 24 March the United States, supported by eighteen other NATO countries that Clinton had persuaded to join him, launched an air war against Milosevic's Yugoslavia. Clinton and his aides avoided the word "war," describing the vast violence they unleashed with an impersonal euphemism, a campaign to "degrade" the enemy. In eleven weeks of war, or degrading, the NATO forces flew 37,000 sorties and dropped 23,614 bombs on Kosovo and other parts of Yugoslavia, most of them by American planes. The United Nations did not support the war, nor did many people even in NATO countries. Congress and the American public, though, as usual in the initial stages of hostilities, backed the executive but with less enthusiasm than in previous presidential wars.
With the rise of domestic opposition to the war, with its destruction of much of Serbia, Clinton resorted to the dubious contention that the executive as commander in chief needed no congressional declaration to fight a war. The House, mainly along party lines, voted against supporting him with a declaration of war, but it did not try to stop the hostilities. In addition, a bipartisan group of legislators filed suit seeking a ruling that the bombing violated the Constitution and laws such as the War Powers Resolution. Across the country a new antiwar movement began taking shape. Elsewhere, as in Japan, people viewed Clinton as an international bully.
On 10 June, before opposition to the war became full blown, it ended. The Serbs agreed to withdraw from Kosovo and to accept a NATO occupation of the province. Clinton then claimed another triumph for a presidential war. The victory proved tarnished when postwar investigators could produce no evidence of grand-scale genocidal Serb activities. Clinton had claimed that under Milosevic's orders, Serbs had slaughtered tens of thousand of Albanians. In addition, when Albanians returned to Kosovo, they carried out ethnic cleansing of Serbs and Gypsies.
In other instances, Clinton used his foreign affairs power constructively, notably through diplomacy to help control ethnic violence in Northern Ireland and in the Middle East and to save Mexico from bankruptcy with some $25 billion in loans. To the end of his presidency, he liked the taste of power that enabled him to influence events the world over and stuck to his self-assumed role, which he often denied, of global policeman. He left office, according to polls, with most Americans approving of his handling of foreign affairs.
In the 2000 election, foreign policy played a minor role, though the Republican candidate, George W. Bush, criticized morally based armed interventions. He preferred using force only where tangible, perceivable American interests were at stake. He won the presidency even though his Democratic opponent received more of the popular vote, despite ballot snafus in Florida, and by surviving various court challenges. In the crucial challenge, the Supreme Court awarded him the office on the basis of shared ideology. In the aftermath, academics and others contended that this outcome tarnished the presidency. As critics pointed out, Bush's awkward handling of foreign affairs during his first months in office indicated that this assessment had merit.
On 11 September 2001 this view of the presidency changed. Unknown Islamic terrorists hijacked four commercial airplanes, smashed two of them into the twin towers of the World Trade Center in New York City and one into the Pentagon, outside Washington, D.C., and crashed the fourth in a field in Pennsylvania. They killed an estimated seven thousand people. The disaster galvanized the nation, rallying the citizenry, as usual in foreign affairs crises, around the flag and behind the president.
Bush responded with incendiary rhetoric laced with references to war and by asking Congress for expanded power to combat terrorism "with all necessary and appropriate force." As had his predecessors, he claimed he already had the authority to initiate military action on his own but wanted a resolution of approval from the legislators to cement national unity. Polls indicated that more than 70 percent of the public supported his stance. Congress rushed to go along with the president's request. On 14 September, unanimously in the Senate and with only one dissenter in the House of Representatives, Congress voted approval for the president to strike at "nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks."
A few in Congress maintained that this resolution, unlike the Tonkin Gulf Resolution, did not give the president blanket authority to make war. In substance, though, it amounted to that, and Bush interpreted it that way. Five days later, speaking to Congress and to the nation via television, he announced "a war on terror," issuing an ultimatum to Afghanistan: deliver to the United States the prime suspects behind the attacks, especially Osama bin Laden, a shadowy anti-Western terrorist who had sanctuary in that country, or expect the consequences. Again, Bush's standing in the polls soared. Afghanistan's Taliban rulers, refused surrender of bin Laden without, they said, seeing convincing evidence of his guilt.
Once more, despite the War Powers Act and post-Vietnam War concerns over untrammeled presidential war power, the public, Congress, and most media pundits eager for retaliation backed the use of military force virtually as the executive saw fit. Moreover, for the first time in the role of a warrior who spoke of involvement in "the first war of the twenty-first century," even to those who previously had belittled him, Bush appeared presidential.
This crisis reinforced what has been, virtually from the first presidency, a steady expansion of the executive power in foreign affairs at the expense of Congress. This happened often because of the force of strong executives' personalities and their thirst for power. It happened also because the American public and its elected representatives, initially at least, in times of foreign crises willingly put aside original intent in the war making power as the framers had embodied it in the Constitution. Again, in the September 2001 crisis, without hesitation, they shifted this ultimate power to one person—the president.
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Cheever, Daniel S., and H. Field Haviland, Jr. American Foreign Policy and the Separation of Powers. Cambridge, Mass., 1952.
Corwin, Edward S. The President's Control of Foreign Relations. Princeton, N.J., 1917.
Corwin, Edward S., et al. The President: Office and Powers, 1787–1984, History and Analysis of Practice and Opinion. 5th rev. ed. New York, 1984. Corwin's books are the pioneering works on the subject. They are still valuable for their scholarship and analyses.
DeConde, Alexander. Presidential Machismo: Executive Authority, Military Intervention, and Foreign Relations. Boston, 2000. Covers in greater detail, with documentation and an extensive bibliography, much of the subject and interpretations in this essay.
Eagleton, Thomas F. War and Presidential Power: A Chronicle of Congressional Surrender. New York, 1974.
Fisher, Louis. Presidential War Power. Lawrence, Kans., 1995. Both of Fisher's books are scholarly, authoritative, and important sources.
——. Constitutional Conflicts Between Congress and the President. 4th ed. Lawrence, Kans., 1997.
Franck, Thomas M., ed. The Tethered Presidency: Congressional Restraints on Executive Power. New York, 1981.
Friedman, David S. "Waging War Against Checks and Balances: The Claim of an Unlimited Presidential War Power." St. John's Law Review 57 (winter 1983): 213–273.
Glennon, Michael J. "Can the President Do No Wrong?" American Journal of International Law 80 (October 1986): 923–930.
Goldsmith, William M. The Growth of Presidential Power: A Documented History. 3 vols. New York, 1974. A collection of documents with commentary.
Graber, Doris A. Public Opinion, the President, and Foreign Policy: Four Case Studies from the Formative Years. New York, 1968. Covers the early national era.
Henkin, Louis. Foreign Affairs and the United States Constitution. 2d ed. New York, 1996. A scholarly and perceptive mainstay in the field.
Lehman, John F. Making War: The 200-Year-Old Battle Between the President and Congress over How America Goes to War. New York, 1991. A readable popular account.
Levy, Leonard W., and Louis Fisher, eds. Encyclopedia of the American Presidency. 4 vols. New York, 1994.
McDonald, Forrest. The American Presidency: An Intellectual History. Lawrence, Kans., 1994.
Marks, Frederick W., III. Independence on Trial: Foreign Affairs and the Making of the Constitution. Baton Rouge, La., 1973.
May, Ernest R., ed. The Ultimate Decision: The President as Commander in Chief. New York, 1960. Essays on selected presidents and their influence.
Mullen, William F. Presidential Power and Politics. New York, 1976.
Murray, Robert K., and Tim H. Blessing. Greatness in the White House: Rating the Presidents. 2d ed. University Park, Pa., 1994.
Neustadt, Richard E. Presidential Power and the Modern Presidents: Politics and Leadership from Roosevelt to Reagan. Rev. ed. New York, 1990. An influential study that stresses the power of persuasion.
Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. New York, 1996. The chapter "Creating the Presidency" is particularly rewarding.
Riccards, Michael P. The Ferocious Engine of Democracy: A History of the American Presidency. 2 vols. Lanham, Md., 1995.
Robinson, Edgar Eugene, Alexander DeConde, Raymond G. O'Connor, and Martin B. Travis, Jr. Powers of the President in Foreign Affairs, 1945–1965. San Francisco, 1966.
Rose, Gary L. The American Presidency Under Siege. Albany, N.Y., 1997.
Rourke, John T. Presidential Wars and American Democracy: Rally 'Round the Chief. New York, 1993.
Schlesinger, Arthur M., Jr. The Imperial Presidency. Boston, 1973. Scholarly, insightful, and gracefully written, this book is a fundamental read.
Shenkman, Richard. Presidential Ambition: How the Presidents Gained Power, Kept Power, and Got Things Done. New York, 1999. A readable popular account.
Skowronek, Stephen. The Politics Presidents Make: Leadership from John Adams to George Bush. Cambridge, Mass., 1993.
Smith, J. Malcolm, and Stephen Jurika, Jr. The President and National Security: His Role as Commander-in-Chief. Dubuque, Iowa, 1972.
Thomas, Ann Van Wynen, and A. J. Thomas, Jr. The War-Making Powers of the President: Constitutional and International Law Aspects. Dallas, Tex., 1982.
Warburg, Gerald F. Conflict and Consensus: The Struggle Between Congress and the President over Foreign Policymaking. New York, 1989.
Wildavsky, Aaron. The Beleaguered Presidency. New Brunswick, N.J., 1991.
See also Congressional Power; The Constitution; Department of Defense; Department of State; Militarism; Nuclear Strategy and Diplomacy; Party Politics; Power Politics; Presidential Advisers; Summit Conferences .
THREE VIEWS ON PRESIDENTIAL POWER
"In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature and not to the executive department…. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will which is to direct it…. In war the honors and emoluments of office are to be multiplied; and it is executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle…. Hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence: hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war."
—James Madison, "Helvidius" no. 4,
14 September 1793—
"Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose—and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect…. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object…. [The Constitution maintains] that no one man should hold the power of bringing this oppression upon us."
15 February 1848—
"When the push of a button may mean obliteration of countless humans, the President of the United States must be forever on guard against any inclination on his part to impetuosity; to arrogance; to headlong action; to expediency; to facile maneuvers; even to the popularity of an action as opposed to the rightness of an action. He cannot worry about headlines; how the next opinion poll will rate him; how his political future will be affected."
—Dwight D. Eisenhower,
4 November 1960—
The powers of the American presidency are amorphous and enormous. Perhaps they can be defined only by saying that they are made adequate to the problems to which the power is addressed. Although these powers purportedly derive from the specifications of the Constitution itself, in fact their definition is to be found in the behavior of the American Presidents since 1789. During this time the executive branch, largely with the acquiescence of Congress and the encouragement of the Supreme Court, has come to resemble the monolithic authority to be found in governments that have succeeded to the authority of czars and emperors. limited government is now constitutionally limited only by the first eight Amendments and Article I, section 9, and even then only at the discretion of the Supreme Court.
The reason for the accumulation of power in the presidency is not hard to find. Power goes to the official who can use it. It is easy for the President to be that official because, as Justice robert h. jackson wrote in youngstown sheet & tube co. v. sawyer (1952):
Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.
The doctrine of separation of powers, not to be found in terms in the Constitution, has receded to the vanishing point so far as the presidency is concerned. And the principle of checks and balances, intrinsic in the Constitution as a whole, has also been diminished when it comes to putting restraints on the President.
Essentially there are two conflicting theses on the powers of American Presidents, depending in large part on whether it is believed that the opening words of the Second Article: "The Executive power shall be vested in a President of the United States," is itself a grant of power or, as was the case with Articles I and III, is simply a designation of the office with the powers of that official to be found in the provisions that followed. In sum, the question is whether everything that comes after the first sentence in Article II is a redundancy so far as presidential powers are concerned. A reading of the origins of the article would clearly deflate the concept of a presidency replete with the royal prerogatives that the nation had so roundly condemned in the declaration of independence itself.
Even the view taken by theodore roosevelt, however, is not so broad as to leave no need for separation of powers. Roosevelt asserted "that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under its Constitutional powers." Roosevelt's immediate successor in office, william howard taft, had espoused a different reading: "The true view of the executive function is … that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such grant as proper and necessary." Taft's was the better reading of the origins of the constitutional provisions, although even he later turned to the Roosevelt reading when he was on the Supreme Court. But Roosevelt's was the better reading of the history of the presidency and a better prediction of what the presidency was to become.
The last important Supreme Court opinion on presidential powers, perhaps because it was one of the few outside the area of civil liberties that rejected a presidential reach for power beyond his grasp, came in 1952 in the Steel Seizure Case. There the Court was thoroughly divided. The dissenters, led by Chief Justice fred m. vinson, read the inherent powers of the presidency as all but limitless, in keeping with the construction given by most political scientists. Justice hugo l. black went to the other extreme in his opinion for the Court. For him the chief magistrate had only those powers specifically provided by the terms of the Constitution and those powers properly conferred upon him by Congress. But of all the opinions in Youngstown, the one most often looked to by constitutional lawyers, including those sitting on the Court, has been that of Justice Robert H. Jackson, for whom there was no plain rule but rather a sliding scale:
- When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.…
- When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures of independent presidential responsibility. In this area, any test of power is likely to depend on the imperative of events and contemporary imponderables rather than on abstract theories of law.
- When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon its constitutional powers minus any constitutional powers of Congress over the matter.… Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
Jackson concluded his opinion, saying: "With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be the last, not first, to give them up."
The concept of the rule of law continues to diminish as the nation embraces first the description in clinton rossiter'sConstitutional Dictatorship, and then that of Arthur Schlesinger in his Imperial Presidency. We continue, however, to parse the sentences of the Constitution in order to justify or oppose presidential authority. But there is less reality in this exercise as each day succeeds the next.
The catalogue of presidential powers specifically stated in the Constitution is neither long nor extensive. He is given a conditional power of veto of all legislation, subject to being overridden by a two-thirds vote of each house. The remainder of his powers are specified in Article II, section 7: he is to be commander-in-chief of the armed forces, including the militia when in the service of the United States; he may require opinions from his principal cabinet officers; he may grant pardons and reprieves for offenders against the national laws; he may enter into treaties with foreign nations with the advice and consent of two-thirds of the Senate; he is to nominate ambassadors, ministers, and consuls, members of the Supreme Court, and such other officers as are not otherwise provided for by the Constitution, plus such other officers as Congress shall provide; he may fill vacancies while the Senate is not in session; he shall address Congress on the state of the union and recommend the passage of measures he deems necessary and expedient; he may convene Congress and adjourn it when the two houses do not agree on adjournment; he shall receive ambassadors and other public ministers from foreign countries; "he shall take Care that the Laws be faithfully executed"; and he shall commission all officers of the United States. In fact, however, these bare bones of presidential authority have had much meat placed on them by presidential practices, by legislative delegation, and by judicial approval. It can hardly be gain-said that the authors of the constitutional language would be much surprised were they to return to the scene to see what it is said that they have wrought.
The slivers of presidential power specifically authorized by the Constitution have been bundled like fasces to create huge authority in the President under the banners of foreign affairs powers; war powers; fiscal powers; legislative powers and administrative powers. None of these rests exclusively on any specific authority granted by the Constitution but rather on combinations and permutations of them combined with "intrinsic" or "necessary and proper" powers, although the necessary and proper clause itself was a grant only to the legislative branch.
Probably the most extensive, and perhaps the most important, of the modern President's powers is to be found in his hegemony over the nation's foreign relations. As Archibald Cox has written: "The United States' assumption of a leading role in world affairs built up the presidency by focussing world attention upon the president. The constitution, combined with necessity, gives the president greater personal authority in foreign affairs than domestic matters. A succession of presidents pushed these powers to, and sometimes beyond, their limits. The personal manner in which they conducted international relations doubtless influenced their style in dealing with domestic matters." But it has been "necessity," not the Constitution, that vested this great personal power in the President. There are only two plausible grounds in the Constitution for great presidential authority in the area of foreign relations. It is he who names and receives ambassadors, which was early construed to mean that he was the sole spokesman of the nation with regard to foreign nations. It is he who is charged with the negotiation of treaties. But both in the appointment of ambassadors and in the making of treaties, the Founders required the collaboration of the Senate: a majority vote of acquiescence in the case of ambassadors and a two-thirds vote of the Senate to validate a treaty.
What the Constitution did not give the President by way of powers in this area, he has been given by Congress or he has taken for himself, and what he has taken for himself has generally been legitimated by Supreme Court decision. Much of relations with foreign nations that was committed to Congress—for example, the power over foreign commerce, the war-making authority—has become irrelevant to the modern Constitution. For the Supreme Court has declared that the powers over foreign affairs that are the President's do not derive from the Constitution but rather are a direct inheritance from the Crown of England. In united states v. curtiss-wright export corp. (1936) the Court said: "As a result of the separation from Great Britain by the colonies 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.… Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect to the colonies ceased, it immediately passed to the Union." Not only did this power inhere in the Union; it belonged directly to the President, although where it was before there was a President is not made clear. But, said the Court, it did not come through the Constitution or the Congress. It is a "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." It is somewhat strange, if the foreign relations power never belonged to the states, that the Founders thought it necessary to take it from them in the specific words of Article I, section 10: "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal, … No state shall, without the consent of Congress … keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded.…" It is strange, too, that Congress can consent to the exercise of foreign affairs powers by the states, if that power properly belongs exclusively to the President.
The coalescence of this power over foreign relations solely in the President has also had the effect of eliminating specific checks on him by the Senate. The Constitution clearly gives the power to negotiate treaties to the President, but it requires the consent of two-thirds of the Senate to validate a treaty. The requirement of Senate approval has often proved a stumbling block, as it was when the Senate refused to consent to the United States' entry into the League of Nations and when the Senate imposed qualifications on the treaty ceding the Panama Canal Zone back to Panama. But the President and the Supreme Court have found a way out of some of these restraints. An agreement with a foreign nation may be called an executive agreement rather than a "treaty," and an "executive agreement" does not require Senate approval, according to the decisions in united states v. belmont (1937) and united states v. pink (1942). There is no guide, however, to say what the province of a treaty may be to distinguish it from that of an executive agreement. The justification for evading presidential responsibility to the Senate is, however, often founded on the ground that effectuation of such agreements usually requires congressional legislation, and a majority of both houses is said to be as good as or better than two-thirds of the Senate in ratifying the presidential action and easier to secure.
It has been argued, but not very cogently, that the foreign affairs powers of the President somehow derive from the Commander-in-Chief Clause of Article ii. alexander hamilton's explanation of that provision in the federalist #69 as to the limited authority of the commander-in-chief still seems to be the better understanding of it: "It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy."
The foreign affairs powers of the President are as broad as they have become not because of constitutional delegation but because of the exigencies that have caused the Presidents to seize the power to meet the problems. Neither the public nor the Congress has shown much aversion to this presidential usurpation.
presidential war powers, like presidential foreign affairs powers, rest on practice and precedent rather than on constitutional authorization. Thus, despite the provision of Article 1, section 8, giving Congress the power to declare war, wars have tended to be a consequence of executive action, sometimes confirmed by a congressional declaration of war and sometimes carried on without one. Five times in American history, Congress has declared war: the War of 1812, the Mexican War of 1848, the Spanish American War of 1898, world war i (1917), and world war ii (1941). Each time American military and naval forces had been committed to action before the actual declaration took place. In most instances when military forces have been engaged against foreign powers there has been no declaration of war even when the conflict reached such vast scales as the country's commitments to the korean war and vietnam war. It has been argued that there were de facto declarations in such instances as Korea and Vietnam by congressional silence or appropriations for the military, but that was not what the Founders had in mind. For them war was thought too serious a matter to be left to generals and Presidents.
Congress has come up with a statute attempting to resolve the problem of presidential usurpation of the war power. The war powers resolution of 1973 provides that a President can order military action without a declaration of war by Congress, but he must inform Congress within forty-eight hours of doing so. Troops cannot be committed for more than sixty days except when Congress so authorizes, and Congress is empowered to order an immediate withdrawal of American forces by concurrent resolution not subject to presidential veto. The statute is of dubious constitutional validity, giving presidential powers to Congress and congressional powers to the President. It is not likely to be the subject of a successful court test, for courts cannot act expeditiously enough nor can they effectuate a decree against the will of either of the other branches.
The essential fact is that the Constitution gives to Congress the power to declare war, to raise and support the armed forces, to make rules for the governance of the armed forces, to call up the militia, and to regulate it. It gives to the President the powers of commander-in-chief, which is only an authority to act in command of the military services so that no mere military officer shall be without civilian oversight.
The greater problem with presidential war powers is whether they enhance his authority over domestic civilian affairs. The Court has tended to sustain extraordinarily broad powers for the executive during the course of a war, as in the japanese american cases (1943–1944), allowing relocation of native and foreign-born Japanese from the West Coast into concentration camps. When war has ended, the Court tends to look more dubiously on executive war powers, holding in duncan v. kahanomoku (1946), for example, that it was an abuse of authority to declare martial law in Hawaii on the day after the Japanese bombed Pearl Harbor. So far as civilian activities are concerned, it is said that war does not give the executive any new powers but simply justifies the use of granted powers reserved for emergencies. The fact is that, in contemporary times, Congress has provided the President with more emergency powers than he ever has occasion to use, generally leaving to him the discretion to determine whether an emergency warrants calling such powers into play. The concept of emergency powers, itself nowhere to be found in the Constitution, has long since expanded beyond the realms of war powers to justify presidential action in the economic and social realm as well as in the areas of military combat and foreign affairs. The confiscation of Iranian assets in the United States to ransom American captives from the Iranians in 1980 affords an example of the extension of presidential authority far beyond what the Constitution provided; but in dames & moore v. regan (1981) the flimsiest statutory delegation was held sufficient to justify the President's actions.
The Constitution gave the President no powers over the national fisc. It was very clear at the constitutional convention of 1787 that the authority over national finance—what went into the national purse and what came out of it—belonged to Congress and Congress alone, subject, of course, to the presidential power of veto. Article 1, section 7, commands that the House of Representatives alone shall originate revenue measures. Article 1, section 8, gives to the Congress the "power to lay and collect taxes," "to pay the debts," "to borrow money," "to coin money," and to punish counterfeiting. And Article 1, section 9, clause 7, provides that "no money shall be drawn from the Treasury, but in consequence of appropriations made by law." If any principle of responsible government can be said to have been derived from the Glorious Revolution of 1688 in England and the American Revolution, it is that a popularly elected legislature is the only safe place in which to place the power of the purse.
This is not to deny that at all times in our history the executive branch has played a more or less important role in the creation and effectuation of fiscal policy, from the roles of Secretaries of the Treasury Hamilton and albert gallatin and andrew jackson's war on the bank of the united states to contemporary times when it would appear that the executive is dominant and Congress subordinate with regard to all the fiscal powers that the Constitution gave to the Congress. But the role of the executive branch has essentially been defined by the Congress. If the executive power is now so great in fiscal matters, the reason is not that the Constitution has conferred the power on the President but that Congress has done so. Thus, one frustrating restraint on presidential fiscal policy derives from the autonomy over the money supply granted by Congress to the Federal Reserve Board, an agency independent of the President.
The nation has evolved from one in which the national government's principal role was that of the protector of the lives and property of the citizenry against encroachment by foreign governments and other citizens to one in which the government manages the economy, for better or worse, in a state where the government has assumed responsibility for the social welfare as well as the physical protection of the citizenry. And as the progression has gone on, so too has Congress relinquished more and more authority to the President. But the President can be said to have these powers only at the will of Congress and to exercise them only in order to enforce the laws faithfully. Indeed, the delegation of power has gone so far as for Congress to have provided by law that the President may refuse to enforce its legislation by impoundment of appropriated funds, provided notice is given to Congress and Congress acquiesces.
Although Congress now has its own budget-making procedures, the dominant budget, derived from the President's Office of Management and Budget, is submitted to Congress more by way of command than suggestion. The concept of an executive budget derives from the 1920s when Congress first enacted a demand that the President supply one. Since then, however, the Office of Management and Budget has grown from a simple accounting agency into a fiscal ombudsman for the entire government. It is a force second only to that of the President himself within the executive branch and it has not been bashful about exercising its powers. But if the beast is a presidential pet, it is nonetheless a creature of a Congress dedicated to transferring to the President the powers that the Constitution gave to Congress.
In constitutional terms, the President's role in the legislative process was originally to be very small. Most important, of course, was the power to veto the acts passed by Congress. And even here, unlike the power of the Crown to forestall parliamentary will as expressed in legislation, the President was given only a conditional veto, subject to being overridden by two-thirds of each house of Congress. The veto power is, however, fully effective only for a President who prefers a limited role for government. Obviously, his veto cannot create legislation but only prevent it. A forceful President seeking to impose his will by way of persuading Congress to action rather than inaction can, however, use the veto as a bargaining tool, a threat to cancel what Congress wants unless it gives the President what he wants. Stalemate is a frequent consequence of a profligate use of the veto power.
The President also has the power by constitutional provision to adjourn Congress, when the two houses are unable to agree on adjournment, and to convene Congress. The power to prorogue Parliament was a sore point with the colonists and they had no intention of conferring such authority on any executive of their own.
There was an imitation of the royal prerogative that was to come into existence even though it was not planned by the Founders. The Constitution provides that the President "shall from time to time give the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient." Like the Queen's message to the opening of Parliament, this device has been used by the executive administration to offer a legislative program to Congress. Indeed, most legislation of importance that comes to enactment in Congress tends to be that which the President has recommended to it or which the President supports by lobbying in Congress. Legislation that does not bear the imprimatur of the President seldom makes its way to enactment, although presidential recommendations are frequently amended in the process of legislative consideration and sometimes are unrecognizable by the time they emerge from both houses. But the influence of the President, utilizing the Office of Management and Budget for details, on the making of the laws is extraordinarily strong. And while there is no provision for presidential budget making in the Constitution, the fact is that the budget that he submits is the foundation on which the congressional budget-making process depends.
In fact, the President indulges in a great deal of law-making himself. With the demise of the ban on the delegation of legislative power, which occurred when the Supreme Court was reconstituted by franklin d. roosevelt, most of the rules governing American society are made by the executive branch. Legislation has tended to take the form of generalized programs whose details are to be filled by agencies of the executive branch. Indeed, some legislation is created by the President even in the absence of authorization for it by the Congress. This takes the form of so-called executive orders theoretically directed to the enforcement of the laws by persons in the executive branch, but usually with the same effect as rules directed to the governed rather than the governors. Very rare indeed is the instance, like the steel seizure case, when the Court has throttled an executive order. Thus, most of the rules governing the lives of Americans are to be sought not in the statutes-at-large but rather in the Federal Register where are to be found the results of the exercise of delegated legislative authority as well as executive orders that do not rest on any actual delegation.
It would seem that the originators of the departments of government thought of them as semiautonomous, with their functions defined by Congress and their secretaries responsible to either the President or the Congress, or both, as prescribed by the legislation creating those offices. The provision for a power in the President to call on the principal officers of government for their opinions would have been redundant if in fact it had been anticipated that all executive officials were directly subordinate to the President. It was probably george washington's organization of his department chiefs into a cabinet rather than the words of the Constitution that made for the hierarchical system headed by the President that has been taken for granted since early in the nineteenth century. The cabinet is not a constitutional body and has no constitutional powers. The powers of the department heads are dependent on legislative rather than constitutional provision, except for their duties to give opinions to the President on demand. Thus by custom and by legislation, and perhaps through the charge of the Constitution to the President faithfully to execute the laws, it has come to be accepted that the executive branch, for all its multitude of offices, is an entity for which the President is responsible both to Congress through the legislature's oversight function, and to the voting public. Surely this notion of the unitary nature of the executive branch and the exceptions thereto—independent administrative agencies—underlies the judgment of the Supreme Court in myers v. united states (1926) establishing the right of the President to remove officials at his will. This accepted principle is not contradicted by the obligation of the President or other executive officials to abide by their own regulations, which are created by him or them and which are subject to change by him or them. (See appointment and removal power.)
The whole of the executive branch acts subordinately to the command of the President in the administration of federal laws, so long as they act within the terms of those laws. Their offices confer no right to violate the laws, whether they take the form of constitution, statute, or treaty.
The United States does have in the presidency a "constitutional dictatorship" or a "plebiscitary President." The "benevolent monarch" of contemporary times, however, is still subject to the force of public opinion, sometimes expressed through representatives, sometimes expressed through the print and electronic media, sometimes expressed in the streets, and every four years expressed through the ballot boxes. One-term Presidents may become the rule. Despite all the centralization of authority, however, the greatest power of the presidency in this democracy is not the power of command. It is the power to lead a nation by moral suasion. It takes a great President to do that well, and that is why history records so few great Presidents.
Philip B. Kurland
Cox, Archibald 1976 Watergate and the Constitution of the United States. University of Toronto Law Journal 26:125–139.
Koenig, Lois W. 1975 The Chief Executive. 3d ed. New York: Harcourt, Brace, Jovanovich.
Kurland, Philip B. 1978 Watergate and the Constitution. Chicago: University of Chicago Press.
Neustadt, Richard E. 1960 Presidential Power. New York: John Wiley & Sons.
Pious, Richard M. 1979 The American Presidency. New York: Basic Books.
Rossiter, Clinton 1948 Constitutional Dictatorship. Princeton, N.J.: Princeton University Press.
Schlesinger, Arthur M., Jr. 1973 The Imperial Presidency. Boston: Houghton Mifflin Co.
The executive authority given to the president of the United States by Article II of the Constitution to carry out the duties of the office.
Article II, Section 1, of the Constitution provides that the "executive power shall be vested in a President of the United States," making the president the head of the executive branch of the federal government. Sections 2 and 3 enumerate specific powers granted to the president, which include the authority to appoint judges, ambassadors, and other high-ranking government officials; veto legislation; call Congress into special session; grant pardons; issue proclamations and orders; administer the law; and serve as commander in chief of the armed forces.
Article II gives the president authority to recommend measures for congressional consideration. Pursuant to this authority, presidents submit budgets, propose bills, and recommend other action to be taken by Congress.
Under Article I, Section 7, of the Constitution, "every bill" and "every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary" must be presented to the president for approval. This "presentment" requirement does not apply to constitutional amendments, procedural rules of each house, and several other types of legislative action.
Under the Constitution, the president has ten days (not counting Sundays) in which to consider legislation presented for approval. The president has three options: sign the bill, making it law; veto the bill; or take no action on the bill during the ten-day period. If the president vetoes the bill, it can be overridden by a two-thirds majority of both houses of Congress. If the president takes no action, the bill automatically becomes law after ten days. However, if Congress adjourns before the ten days have expired and the president has not signed the bill, it is said to have been subjected to the pocket veto, which differs from a regular veto in that the pocket veto cannot be overridden by Congress.
In 1996, Congress gave the president the authority to select particular items from appropriation bills and individually veto them. The federal line-item veto authority (2 U.S.C.A. §§ 691 & 692) gave the president the ability to impose cuts on the federal budget without vetoing a bill in its entirety. The line-item veto, like a regular veto, could be overridden by a two-thirds majority vote of both houses.
This law was immediately challenged as a violation of separation of powers by five members of Congress. They argued that line item veto disrupted the historic balance of powers between the legislative and executive branches
and that it violated Article I, Section 7. The Supreme Court, in Raines v. Byrd, 521 U.S. 811, 122 S.Ct. 1700, 152 L.Ed.2d 771 (12002), refused to hear the case, dismissing it for lack of jurisdiction. The Court held that the legislators lacked legal standing to bring the lawsuit because they could show no personal injury from the new power.
The constitutionality of the line-item veto act was finally adjudicated in Clinton v. City of New York, 524 U.S. 417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998). The Supreme Court ruled that the law was unconstitutional because it violated the Constitution's Presentment Clause. Under the Presentment Clause (Article I, Section 7), after a bill has passed both Houses, but "before it become[s] a Law," it must be presented to the president, who "shall sign it" if he approves it, but "return it," ("veto" it) if he does not. Nothing in this clause authorized the president to amend or repeal a bill.
The veto gives the president enormous power to influence the writing of legislation. By threatening a veto before legislation is passed, the president can force Congress to compromise and pass amendments it would otherwise find unacceptable.
The president's executive powers also include the authority to issue proclamations and executive orders. A proclamation is the president's official announcement that the president is taking a particular action. Such an announcement is not the same as an executive order, which has the force and effect of law by carrying out a provision of the Constitution, a federal statute, or a treaty. The Constitution does not expressly give the president the power to promulgate executive orders. Instead, this power has been inferred from the president's obligation to faithfully execute the laws. Proclamations and executive orders are published in the Federal Register to notify the country of presidential actions.
Powers of Appointment
The president has the power to appoint ambassadors, cabinet officers, and federal judges, subject to confirmation by a majority vote of the Senate. Upper-level executive branch officials, who numbered more than 2,500 in 2002, are appointed solely at the discretion of the president or department head without Senate review. The power to appoint federal judges gives a president the opportunity to place on the federal bench for lifelong terms persons who agree with the president's views on law and the role of the judicial system. A president is limited to serving eight years. A federal judge may serve for decades.
The president is given the power under the Constitution to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The president may grant a full pardon to a person accused or convicted of a federal crime, releasing the person from any punishment and restoring her or his civil rights. The president may also issue conditional pardons that forgive the convicted person in part, reduce a penalty a specified number of years, or alter a penalty with conditions.
A pardon is generally a private transaction between the president and an individual. However, in 1977, President jimmy carter granted an amnesty that was, in effect, a blanket pardon to those who were either deserters or draft evaders during the vietnam war.
Power of Impoundment
Presidential impoundment is the refusal of the chief executive to expend funds appropriated by Congress. thomas jefferson was the first president to impound funds, and many other presidents have followed suit. Congress has granted the president the authority not to spend funds if it has appropriated more funds than necessary to reach its goals. However, the president does not have a limitless impoundment power. The U.S. Supreme Court, in Train v. City of New York, 420 U.S. 35, 95 S. Ct. 839, 43 L. Ed. 2d 1 (1975), ruled that President richard m. nixon could not order the impoundment of substantial amounts of environmental protection funds for a program he vetoed, which had been overridden by Congress. The president cannot frustrate the will of Congress by killing a program through impoundment.
Foreign Policy Powers
The president or his designated representative, such as the secretary of state, has the exclusive authority to communicate with other nations, recognize foreign governments, receive ambassadors, and make executive agreements. Throughout U.S. history, Congress and the courts have granted the president great deference in conducting foreign policy. This deference is based, in part, on the need for one person, rather than 535 members of Congress, to represent and speak for a national constituency.
These powers were illustrated in the aftermath of the september 11, 2001, terrorist attacks on New York City and Washington, D.C. President george w. bush warned the Taliban government of Afghanistan to surrender Osama bin Laden and other terrorists or face the possibility of war. In the months leading up to the March 2003 invasion of Iraq, President Bush, Secretary of State Colin Powell, and other representatives lobbied the united nations for support of the U.S. position on Iraq.
In addition to the authority to recognize foreign governments, the president is empowered by Article II to make treaties with foreign nations, subject to the consent of the Senate. A treaty is an agreement between two or more nations containing promises to behave in specified ways.
Executive agreements are international compacts that the president makes with foreign nations without the approval of the Senate. They do not have the same legal status as treaties unless they are subsequently ratified by the Senate. The Constitution does not expressly give the president the power to make executive agreements. However, this power has been inferred from the president's general constitutional authority over foreign affairs. At one time, executive agreements involved minor matters, such as postal relations and the use of radio frequencies. Since the 1930s, however, presidents have negotiated important foreign policy issues through these agreements rather than through treaties. The Supreme Court has recognized that an executive agreement is legally equivalent to a treaty and therefore the supreme law of the land. Executive agreements enable the president to achieve results while avoiding the uncertainty of treaty ratification.
Presidential War Powers
An integral part of the president's foreign policy role is the enormous power of the U.S. armed forces, over which the Constitution makes the president commander in chief. The president may threaten a foreign nation with force or actually conduct military actions to protect U.S. interests, aid U.S. allies, and maintain national security.
Although the president is commander-in-chief, Article I of the Constitution gives Congress the power to declare war. Despite this apparent constitutional impediment, presidents since Thomas Jefferson have dispatched troops to combat situations without the prior approval of Congress. The Supreme Court held in the Prize cases, 67 U.S. 635, 17 L. Ed. 459; 70 U.S. 451, 18 L. Ed. 197; 70 U.S. 514, 18 L. Ed. 200; 70 U.S. 559, 18 L. Ed. 220 (1863), that the president has the authority to resist force without the need for special legislative action.
In times of crisis, the president has the power to commit U.S. forces, but the Vietnam War led Congress to place limits on the presidential war power. The War Powers Resolution of 1973 (50 U.S.C.A. §§ 1541 et seq.) restricts the president's power to mobilize the military during undeclared war. It requires the president to make a full report to Congress when sending troops into foreign areas, limits the duration of troop commitment without congressional authorization, and provides a veto mechanism that allows Congress to force a recall of troops at any time.
Following the September 11 terrorist attacks on the United States, Congress passed a resolution authorizing the president to use force to fight a war on terrorism. President George W. Bush issued military orders in October and November 2001 that mobilized national guard and Army Reserve units and directed the detention of enemy combatants by the military. In a controversial move, President Bush authorized military tribunals to try suspected terrorists. After the U.S. invasion of Afghanistan, many suspected terrorists were captured and moved to military prisons for indefinite terms of detention. The invasion of Iraq by U.S. and British forces in March 2003 was authorized by Congress in the fall of 2002, again giving the president as commander-in-chief broad authority to conduct a military campaign.
The president also has broad powers over domestic policy during wartime. President abraham lincoln issued an order to military commanders suspending habeas corpus during the Civil War, which allowed the military to arrest and detain persons without trial for an indefinite time. Congress later passed a law suspending habeas corpus, but after the Civil War, the Supreme Court, in ex parte milligan, 71 U.S. 2, 18 L. Ed. 281 (1866), condemned Lincoln's directive establishing military jurisdiction over civilians outside the immediate war zone.
During the early days of U.S. involvement in world war ii, President franklin d. roosevelt issued orders authorizing the establishment of "military areas" from which dangerous persons could be expelled or excluded. This order was used to designate the West Coast a military area and to remove and imprison 120,000 Japanese Americans in "relocation centers" for the duration of the war. The Supreme Court upheld the relocation order in korematsu v. united states, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), finding that the government had a compelling national security interest during a time of war to take such extreme measures.
Following the September 11 attacks on the United States, Congress passed the usa patriot act, which gives the president increased powers to wiretap suspected terrorists without judicial supervision as well as the power to indefinitely detain aliens who are suspected of terrorism. U.S. citizens who have been held as enemy combatants in military prisons without the right to consult with an attorney or have a criminal trial have challenged the president's authority. In Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), the Fourth Circuit Court of Appeals ruled that the courts must defer to the president when dealing with issues of national security. Therefore, the president could order the indefinite detention of enemy combatants.
Neustadt, Richard E. 1990. Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan. New York: Free Press.
Rozell, Mark. J., ed. 2002. Executive Privilege: Presidential Power, Secrecy, and Accountability. 2d ed. Lawrence: Univ. Press of Kansas.
Shapiro, Robert Y., Martha Joynt Kumar, and Lawrence R. Jacobs, eds. 2000. Presidential Power. New York: Columbia Univ. Press.