by Prof. Gordon L. Bowen, Ph.D.
1. Constitutional setting
Founding Fathers Views. Before the establishment of the U.S. under the Constitution (1789), Alexander Hamilton (first U.S. Secretary of the Treasury) favored "energy in the executive" when he advocated the ratification of the Constitution, in the Federalist Papers (1787): "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." Another important revolutionary leader and first Chief Justice of the U.S. Supreme Court, John Jay (Paterson 1988: 4), in 1782 advocated to Benjamin Franklin a view of political leadership that required executive leaders to ignore, if necessary to save the republic, even the instructions given by the Continental Congress, saying "We have no rational dependence except on God and ourselves."
Early U.S. executives acted as if Hamilton and Jay were their guide. First U.S. President George Washington acted in a manner that exceeded his explicit Constitutional authority by issuing the Neutrality Declaration. Second U.S. President John Adams took lightly the dicta found in the Bill of Rights when he used a Federalist majority in Congress to enact the Alien and Sedition Acts which he favored. Third U.S. President Thomas Jefferson ignored Congress when he decided to dispatch U.S. Navy ships to fight North African pirates, and when he committed the U.S. to buy the Louisiana Territory from France, doubling the size of the United States, he substantially encroached on Congress' power over the appropriation of money. These and many other early precedents suggested a reservoir of additional powers lay in the hands of the Head of State, the U.S. President.
Little consensus existed about this. Not all of the Founding Fathers and leaders of the early republic held this expansive view of Presidential powers, or the robust way American power was used by Jefferson. The legislature also for a time flirted with leading the new nation, and these elected officials often were of isolationistic impulses. On July 12, 1783, the Continental Congress (Paterson: 18) refused an offer of an alliance with the Dutch, stating "The true interest of these [United] States requires that they should be as little as possible entangled in the politics and controversies of European nations." In the 1820s, Pres. John Quincy Adams also advocated a more cautious approach (e.g., see Kennan).
However, after the grounding of the republic in the new U.S. Constitution, those presidents who did seek a basis on which to act in ways not specifically mentioned in the Constitution could point to precedents set by the bold initiatives of some among the Founding Fathers.
Thomas Paterson, American Foreign Policy: A History to 1914 third edition (Lexington MA: D.C. Heath, 1988).
George F. Kennan, "On American Principles," Foreign Affairs (March / April 1995): 116-126.
Congressional Powers enumerated in the U.S. Constitution were numerous:
- declares war (Both houses' consent necessary)
- confirms Ambassadors nominated by the President (Senate): Ambassadors of the US are sent "by and with the Advice and Consent of the Senate" (Article II, section 2, paragraph 2).
- ratifies treaties (Senate): US "provided two thirds of the Senators present concur" (Article II, section 2, paragraph 2).
- appropriates funds for foreign policy (House initiates; both must concur)
Presidential Powers enumerated in the U.S. Constitution often were made contingent on agreement by the legislature. But some key powers under it were exclusively the President's:
- negotiates treaties and their terms
- proclaims treaties to be in effect (after Senate ratification)
- determines the need for and can enter into executive agreements with other states (which may be kept secret)
- receives ambassadors of other states, and thus sets list of states with whom U.S. has diplomatic relations. (Article II, section 3 "he shall receive Ambassadors and other public Ministers").
- serves as Commander-in-Chief of U.S. Armed Forces. Illustrations:
- The Commander -in-Chief of US Armed Forces role of the President is described in Article II, section 2, of the U.S. Constitution. This is its very first clause describing the powers of the president.
- From the beginning of the debate at the Constitutional Convention of 1787, there was little support for the idea of a "committee to command," partly due to the fact that General George Washington chaired that Philadelphia convention.
- The power to command is also the power to relieve from command, and the string of precedents is impressive:
- Throughout US history, chief executives have retained control over U.S. foreign and military policy by relieving military officials from command when those officials had challenged or undermined presidential policies.
- Abraham Lincoln relieved Gen. McClellan during the Civil War.
- Harry Truman fired Gen. Douglas MacArthur for insubordination during the Korean War.
- Jimmy Carter relieved Gen. John Singlaub of command of U.S. troops in South Korea after he challenged Carter's East Asia policy.
- George H. W. Bush fired Air Force Commander Duggan on the eve of the Gulf War,
- Thus, it is solidly established that there is but one commander-in-chief: the President.
- Supreme Court decisions in recent decades further have sustained this exclusive power, even over the states' militias, or the National Guard: Governors were found not to have the authority to obstruct presidential orders sending states' National Guard units to Central America during the Reagan Administration.
Court Precedents: Key U.S. Supreme Court cases repeatedly have affirmed this growth of presidential leadership in foreign policy.
- In 1912, in U.S. v Altman, the U.S. Supreme Court ruled that executive agreements were fully as legally binding as were treaties.
- In 1936, in U.S. v Curtiss-Wright, the U.S. Supreme Court expansively described presidential powers:
"In this vast external realm,... the President alone has the power to speak or listen as a representative of the nation... It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the Federal Government in the field of international relations... exercised in subordination to the applicable provision of the Constitution."
For detailed illustration of the context of this opinion, and the further development of policies related to it, go here.
2. Cultural and historical Influences on American National Style
- the American "sense of destiny"
- the American distrust of European ways
- the American tradition of depreciation of "power politics"
- the American penchant for crusading
- the American belief that there can be a disconnection of war and diplomacy
- the American belief that the economy and trade are "good"; but politics is "bad"
3. Causes of "presidentialism" in modern foreign policy
Isolation from European wars
"Manifest Destiny" beliefs
The Lesson of Versailles: In 1918-20, Pres. Woodrow Wilson attempted to persuade the Senate to ratify the Versailles Treaty ending World War I, and to nudge the isolation-minded nation into a world organization to prevent war, the League of Nations, established by the treaty. He failed. Within a generation, it broadly came to be believed that Congress may not know the U.S. national interest as it reflects particular, localized views. Avoiding having Congress again act as the Congress did in refusing to ratify the Versailles Treaty after World War I contributed to the inclination to defer to Presidential power in foreign policy.
The Lesson of Munich: Assertiveness, and leadership, not appeasement, is necessary to protect U.S. interests and values. Only Presidents can so guide the nation.
Precedents established by presidents from Washington onward pointed to a reservoir of additional presidential powers in foreign affairs:
1. The U.S. use of the War Power, especially, contributed to this trend.
In the early republic, presidents acted in advance of, and sometimes in opposition to, Congressional sentiment in this area. Naval conflicts with France (1798-1801), Morocco (1803), Algiers (1793-96), and Tripoli (1801), among others, ranged over the Mediterranean Sea and the Atlantic Ocean.
In 1967, the State Department published a list of 137 military actions authorized solely by the President. A contemporaneous study published by a member of Congress sympathetic with a strong presidency, (the late) Illinois Republican Senator Everett Dirksen, also found that between 1798 and 1945, U.S. armed forces were used for a war-like effect 159 times (U.S. Senate, pp. S6955-68). Yet, Congress passed formal war declarations leading to actual involvement in only five international armed conflicts in this same period. For a thorough list of these engagements, go here.
Not all this presidential warring was in our "back yard" (Mexico, Central America and the Caribbean): Only a slight majority of the previously mentioned 159 engagements took place within the "sphere of influence" in Latin America delineated by the Monroe Doctrine of 1823: 84 of 159 events were in Latin America; and 67 of these 84 events were in Central America or the Caribbean.
Another study done by the Brookings Institution (1977) found that from 1946 to May 1975, U.S. Armed forces were deployed for a war-like effect an additional 215 times; no U.S. Congress in this more recent period issued a formal declaration of war. Of these uses of military power, 38 were in Central America and the Caribbean.
2. Making commitments for the U.S.: Executive Agreements. While the Treaty Power is a shared power in the Constitution, and requires the consent of a super-majority in the U.S. Senate for any treaty to go into effect, since early in the republic Presidents have made use of a separate way of binding the U.S. to other countries: Executive Agreements with the head of state of another country.
- This is an exclusively presidential power: unlike treaties (which must be ratified by 2/3 of the Senators present and voting), executive agreements do not require Congressional consent.
- Begun in 1793 by George Washington, E.A.s have come to be far more numerous than treaties as the preferred way the U.S. makes commitments to foreign states.
- E.A.s may be annulled by Congressional action, subject to presidential veto and over-ride provisions in the U.S. Constitution.
- Executive agreements may be kept secret, often to shelter a foreign official who fears popular discontent if an arrangement with the U.S. is publicly revealed, or vice versa. (See Saudi Arabia case).
- Under the terms of the Case Act (1972) all executive agreements must be reported to Congress within 60 days. However, they often aren't.
The European doctrine of "raison d'etat" or "reasons of state" also contributed. In every sovereign state one official must be ultimately responsible for the survival of the state. This sovereign responsibility must reside somewhere, and in a Constitutional government, it resides with the chief executive. In the U.S., this is the Office of the Presidency.
"Lessons" from Interwar Years also weakened the position of advocates of Congressional leadership. The U.S. Senate rejected Wilson's proposal to ratify the Versailles Treaty of 1919; and many in the U.S. drew sharp lessons from the failure of the British/French policy of appeasement of Nazi Germany as best was illustrated by the events leading to the Munich Conference and agreements of 1938.
The Nature of the adversary c. 1947: the communist system of the USSR did not openly reveal its plans, nor act always in the open. In response, secrecy by the U.S. Government was perceived to be needed.
Growth of presidential leadership in the use of federal power, 1933-45 also contributed. The National Emergencies of the Great Depression and World War II had created both a legal basis for enhanced presidential power and the basis for public and Congressional support for it. This pattern resumed after September 11, 2001.
New legislation. After 1947, the terms of the National Security Act of 1947, e.g. secret budgets, etc., greatly enhanced the opportunities for the presidency to lead the system.
The fact that bi-partisan support developed for the Containment of Communism weakened remaining opposition to a strong presidency in foreign policy. Without either major party to advocate a "strict interpretation of the Constitution" on these matters, restraints on the presidency atrophied. For example, the role played by U.S. Senator Arthur Vandenburg (Republican -Ohio) in the authorization of Truman's foreign policies neutralized some of the partisanship that might otherwise have colored opposition to Truman's policies.
Deferential Congresses, 1947-68. Against this backdrop, and until the Vietnam War undermined the political logic behind strongly supporting presidential foreign policies, Congress tended to defer to Presidential leadership in foreign policy. After the political opportunity that was created by widespread disillusion over Vietnam, the Congressional role in foreign policy became more contentious.
4. So, who really makes foreign policy? a concentric circles model
5. The Trend 1973-2000: Congressional Reassertion over Foreign Policy
Contributing factors that helped to produce a new willingness in Congress to assert itself in foreign policy were numerous, and included:
- Congressional desire to avoid a repeat of the Vietnam experience;
- the Watergate scandal, which weakened the entire executive branch both legally and politically;
- the corresponding breakdown in Congress of the tradition of bipartisanship in foreign policy;
- which was accompanied by a breakdown within American society about the desirability of persisting toward the goal of containment of communism at any cost;
- combined with strong public dislike for the person of Pres. Richard Nixon, a level of dislike that bordered on hostility;
- a hostility that still lived a decade later to be mobilized in opposition to the more popular Pres. Ronald Reagan's approach to Central America, and which more recently was evidenced by
- the personal hostility toward Pres. Bill Clinton which reached the level of denunciations of some of his foreign policy actions (e.g., the air raids on Iraq of December 1998, the war over Kosovo in Spring 1999) as motivated by desire to divert attention from steamy sex scandals, and other florid charges by some members of Congress.
- In net, Congresses, 1973-2000. enacted many restrictions all of which seem intended to rein in what many in Congress and beyond saw as runaway powers of the Presidency in foreign policy. These enactments included:
Executive Agreements... the Case Act: all agreements must be reported to Congress within 60 days.
Treaty power.... Sen. Barry Goldwater's attempt to convince U.S. Courts to reverse Carter's abandonment of treaty with Taiwan R.O.C. fails.
Arms Exports... A.E.C.A. of 1974-76
Foreign Aid... Section 502(b), 1974: aid must be reduced to "gross violators" of human rights
Intelligence Agencies... 1974 Hughes-Ryan Amendments; 1991 Intelligence Oversight Act; and including unwillingness of Congress to authorize or appropriate monies to finance foreign policies toward Nicaragua
The War Power... War Powers Act of 1973 and illustrations
Ambassadorial appointments... Sen. Jesse Helms blocks Clinton nominee William Weld nomination to be Ambassador to Mexico by failing to hold a hearing on his nomination (1997).
Appropriation Power... U.N. dues blocked by Congressional inaction in 1990s.
6. The Contemporary era.
After the attacks on the U.S. of September 11, 2001, a clear shift toward Presidential primacy in foreign policy occurred, as most was illustrated by the virtual blank-check authorization to use military force against the attackers and those who aided them, and to prevent further attacks on the U.S. (September 2001), and by the authorization to use military force against Iraq in October 2002, many months prior to the actual outbreak of hostilities in March 2003. Additional signs of a trend toward resumed Presidential primacy included: Congressional inaction in response to Pres. Bush's reversal of longstanding U.S. policy barring American intelligence agencies from engaging in tactics of assassination, and the absence of effective Congressional remedial action in the face of a series of startling revelations regarding CIA detention of terrorist suspects in secret prisons in allied states, "rendition" of terrorism suspects to undergo questioning in allied states known to practice torture, mistreatment of terrorism suspects in American custody in Iraq, and detention of terrorism suspects, including some U.S. citizens, for long periods without access to U.S. courts of law. By 2006, some cracks had appeared in the apparent consensus of Americans, and Congress, in support of all this, and election results that year brought Congressional majorities of Democratic Party members for the first time in twelve years. Effective Congressional actions to curb the Presidential powers under which such policies had been undertaken, however, would prove difficult (Rivkin and Casey: 19) until after the 2008 election of Barack Obama as U.S. President. Thereafter, ironically, partisan Democratic Party support for Pres. Obama combined with Republican support for robust national security policies and led to Obama's continuation of many policies associated with the Bush Administration (e.g., offensive operations in Afghanistan and Pakistan). This tended to mute Congress' ability to restrain the executive's foreign policies, which within Obama's first two years included nearly 160 separate missile attacks on Pakistan from U.S. drone aircraft, and other air and ground attacks on terrorist forces in Somalia and Yemen, in addition to the ongoing war-like operations Afghanistan which were not only continued but expanded. (On Sept. 1, 2010, the U.S. combat role in Iraq, however, was officially ended. But this was on presidential orders, not Congressional ones).
- see also: David B. Rivkin Jr. and Lee A. Casey, "What Congress Can (and Can't) do on Iraq," Washington Post (Jan. 16, 2007): A 19.
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