War and the Rogue Presidency is an in-depth examination of the history of the congressional-executive tug-of-war over U.S. security policy and why reclaiming constitutional standards is essential to restore both an effective national defense and civil and economic liberties. To get Congress to do that, Dr. Eland presents ways in which internal congressional incentives could be changed to provide motivation for legislative push-back. As a result, the book suggests important actions Congress could take for such a push-back along with other reforms that would effectively rein in the rogue presidency.
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Constitutional Mandates for Defense and Foreign Policy
MUCH OF CURRENT popular writing on, media coverage about, and public expectations of presidents and the presidency implicitly accept the evolved role of the office into the most powerful of the five sectors of government in America (the executive, the Senate, the House of Representatives, the Supreme Court, and the states). Nowadays, the president is not only expected to act as commander in chief of the country, but also perform other expansive functions, such as party leader, legislator in chief to get his program through Congress, and even consoler in chief when a natural or human-induced disaster reaches a certain level of loss. Yet at the dawn of the republic, the framers of the Constitution saw the president's limited roles only as defending the country from foreign attacks and executing domestic laws.
The dominant view among constitutional scholars is that post–World War II presidents have usurped vastly more power in foreign policy than the framers of the Constitution had envisioned. For example, according to Francis D. Wormuth and Edwin B. Firmage, "Articles I and II of the Constitution reveal the intent of the framers to give Congress the dominant hand in the establishment of basic policy regarding foreign relations." Similarly, John Hart Ely notes that "The Constitution gives the president no general right to make foreign policy. Quite the contrary[:] virtually every substantive constitutional power touching on foreign affairs is vested in Congress." Let us delve into the specifics of the founders' original concept.
The Constitution Made Congress Dominant, Even in Defense and Foreign Policy
During the colonial period and early in the American Revolution, with King George III and his powerful colonial governors in mind, colonists were concerned mainly about excesses of executive power. Thus, during the revolution, republican George Washington largely followed the Continental Congress's direction of the war.
The first American national government — the Articles of Confederation — had no executive; under new state constitutions drafted after the Declaration of Independence during the Revolution, the first state governments had strong legislatures and weak executives. Thus, later in the Revolution and just after it, concern was raised on the national level about not having a strong enough executive to effectively conduct war, to respond to insurrections like Shay's Rebellion in Massachusetts in 1786 and 1787, and to avoid being put at a disadvantage in commercial disputes with foreign nations. On the state level, concern was raised about "legislative tyranny," with unconstrained legislative bodies persecuting dissenters, canceling debt, and redistributing wealth.
From 1781 to 1789, under the Articles, the Confederation had to get nine of thirteen states to agree to pass legislation, make war, approve foreign treaties, and manage the confederation — all when surrounded by British power in Canada; Spanish forces controlling Florida, New Orleans, Mexico, and Cuba; and restive Native American nations in the middle of the continent that did not want their land stolen by American settlers. Under the Articles, Congress handled such foreign affairs, but with some deficiencies. The Constitutional Convention was called in 1787 to strengthen the central government — with a Revolutionary-era wariness of a strong executive (some delegates initially didn't want any executive and some wanted plural executives to dilute any person's power). However, the expectation was that any new legislative body would be the dominant branch of government and would therefore also need to be constrained. What resulted was a messy compromise Constitution, which was only later provided an overall vision by The Federalist Papers to attempt to win ratification in one state: New York. The Constitution did not provide for the total separation of powers among government branches (as commonly believed), but separated those institutions and directed them to share some key powers.
At the Constitutional Convention, the framers came very close to creating a full parliamentary system in which the majority party in Congress would always select the president. Although an independently selected president is justified in The Federalist Papers as a method of preventing legislative tyranny, the long-stalemated framers, hurrying to end the convention, only enshrined the independently selected executive in the Constitution when they couldn't agree on anything better. And even then, in the method of presidential selection, the Electoral College, in most cases was supposed to merely nominate presidential candidates for ultimate election by the House of Representatives.
An examination of the text of the Constitution, and the debates at the Constitutional Convention surrounding the document's adoption, show that most of the limited, enumerated powers of the new federal government — including those in defense and foreign policy — were allocated to the houses of Congress, not the chief executive. For starters, as the Constitution's framers envisioned the system, the House of Representatives would in most cases elect the president, making the chief executive's job security ultimately dependent on the people's house. The framers expected that, with such a physically large country and limited public education and knowledge of candidates, prospective officeholders would be able to get an outright majority in the Electoral College only rarely; thus, they envisioned that the electors in the Electoral College would only nominate candidates for final election by the House. Even the Electoral College was a compromise between those who wanted direct election of the president by the people and those who feared an excessively powerful president, elected by the unwashed masses, and instead wanted an executive selected legislatively. In most cases, the electoral process would be a hybrid indirect system of House election with nominations provided by the Electoral College — a compromise closer to the latter camp than the former camp. The American constitutional framers were aristocrats who feared that the democratic masses, controlling the political system, would take away their wealth.
In fact, what independence the framers allowed the president — for example, a limited veto over congressionally passed legislation — was given to the office as a check on the expected robust power of both houses of Congress. Even the name of the office — at the time, "president" (one who merely presided over the execution of Congress's will) implied much less power than "governor" (one who governed) — indicated modesty in responsibility. The president was given the narrowly construed power of being the commander in chief of the US military and federalized militia when in battle after war had been initiated; responsibility for nominating ambassadors and other high government officials subject to confirmation by the Senate; the authority to receive foreign diplomats; the power to negotiate and submit treaties with foreign nations for Senate acceptance; the option of recommending legislation to Congress; the responsibility to execute congressionally passed laws; and the authority to pardon people convicted of crimes. Most of the other powers of the new federal government, including those in defense and foreign policy, were given to Congress.
The Constitution gave the Congress the powers, among others, to provide for the general welfare; collect taxes and duties; pay debt; borrow and coin money; appropriate funds and make rules for government activities; regulate interstate commerce; establish uniform rules of naturalization; fix the standard of weights and measures; make laws on bankruptcies and counterfeiting; secure copyrights and patents; establish post offices and post roads; constitute courts below the Supreme Court; define and punish piracy and felonies on the high seas and offenses against the Law of Nations; and pass all laws necessary and proper to execute its other powers and those of the federal government.
In defense and foreign policy, in addition to approving the president's proposed treaties, ambassadors, and high defense and foreign policy officials, the Congress has the power to provide for the common defense; raise and support armies; maintain a navy; regulate land and naval forces; and organize, arm, discipline, and govern the militia and provide for calling it forth to execute federal law, put down insurrections, and oppose foreign invasions. The Congress also has the power to declare war and issue letters of marque and reprisal to privateers for attacks short of general war; make rules concerning capture on land and sea; and regulate commerce with foreign nations. Finally, the Congress has the power to exercise authority over locations purchased from states for forts, arsenals, magazines, naval facilities, and other federal buildings. Thus, in general and even in defense and foreign policy, the Constitution gives the Congress many more powers than the chief executive.
Despite what school children learn about the "separation of powers" in the US Constitution, the document provides for separated institutions but in many cases shared powers between the branches of government to purposefully diffuse power. As for the legislative power, the president can suggest legislation, both houses of Congress must pass it, and the president can veto it, subject to a congressional override by two-thirds votes of each legislative chamber. For the more specific case of legislation to take the nation to war, the president can ask for a declaration of war, which must pass by majority vote in each house of Congress. A debate among legal scholars exists about whether the executive can veto such a declaration, but the Constitution's text doesn't make any special arrangements for this type of legislation, so the answer is probably in the affirmative.
According to an adjustment made at the Constitutional Convention, the president, as commander in chief, could respond quickly, without such a congressional declaration, but only for self-defense if the nation itself came under attack; the president's commander-in-chief role was narrowly construed as being the chief commander of forces in battle after Congress or the enemy had decided to take the nation to war. The executive can negotiate treaties with foreign nations and propose them to the Senate, but the less dexterous legislative body must advise him beforehand and during the negotiations and ratify the pacts by a two-thirds vote; the president can nominate high government officials and ambassadors, but the Senate must approve them by a majority vote. The president executes the laws but uses congressionally approved statutory language and budgeted funds to do so. To carry out the laws, the president is in operational control of executive bureaucracies, but Congress has decided what agencies exist and what they are permitted to do. Under the Constitution, because Congress creates executive bureaucracies and gives them their marching orders and funding, the so-called "unitary theory of the executive" exists only in the fantasyland of constitutional "separation of powers."
The president can call the Congress into special session, but he cannot dissolve the legislative body. Even the president's almost plenary power to pardon cannot be used during impeachment proceedings in Congress or for criminal purposes. The founders' intent for Congress to be the dominant branch of government is shown by the many more enumerated powers in the much longer Article I governing that body than the fewer enumerated powers for the president in the much shorter Article II governing executive powers. Furthermore, the Congress can impeach the president, but the executive cannot dissolve Congress and call for special elections. In short, in most major areas where the Constitution gave the president at least some power, it also involved Congress as a check.
Some modern-day analysts have alleged that the framers left presidential powers vague — for chief executives to fill in as they went. Yet the text of the Constitution indicates that although the Congress wanted the president to have some independence from Congress — for example, the chief executive's limited veto power over congressional legislation — the document is one of strictly enumerated powers. For example, the 10th Amendment reserves to the states or people constitutional powers not explicitly delegated to the federal government nor prohibited to the states. With the excesses of the British central government and king in mind, the framers clearly wanted to limit the power of the federal government and especially that of the president. In the Constitution, presidential powers are explicit but purposefully limited — even in defense and foreign policy. As satirical writer H. L. Mencken said, even in the early twentieth century when the president wasn't as powerful: "No man would want to be President of the United States in strict accordance with the Constitution."
Even law professors Saikrishna B. Prakash and Michael D. Ramsey, proponents of executive power, admit that "advocates of presidential primacy have little to hang their hats on" from the Constitutional Convention. They continue: "This drafting history, with little explicit commentary on foreign affairs, should hardly encourage those who insist that, notwithstanding the lack of textual support, the President must dominate foreign affairs."
Modern-day analysts who think the Constitution is vague on executive powers simply cannot believe that the framers wanted such presidential authority to be so limited. However, they have been unduly influenced by the modern conception of the presidency, which has invented, over the course of American history, many "implied" or "inherent" executive powers nowhere to be found in the Framers' Constitution. These proponents of executive power are over-interpreting the Constitution to justify the expansion of presidential power that has grown over the last 70 years into an imperial presidency and beyond. In trying to square actual practice with the text of the Constitution, proponents of executive power try to give flexibility to the Constitution that is not there. For example, constitutional scholar John Yoo asserted that if the Constitution doesn't have flexibility, "a whole lot of things we've done would be unconstitutional." Rather than trying to bend the Constitution to fit bad practice, the unconstitutionality of practice should be admitted and returned to within constitutional parameters.
Let's examine how people who assert executive primacy bend the Constitution in foreign policy. First, the proponents claim that the founders were influenced by seventeenth- and eighteenth-century European political philosophers — such as William Blackstone, John Locke, and Baron de Montesquieu — to define a certain set of governmental functions as "executive" in nature. Yet these European commentators used the royal prerogative of the British monarchy as their model, which the American founders clearly and explicitly rejected. For example, in the British system, the king had the prerogative to initiate wars, whereas the American Constitution gave the power to declare war to Congress. Also, after the Glorious Revolution of 1688 and the coronation of George I, from the German Hanover House, as king of Great Britain in 1714, the British parliament became the dominant governing force in Britain for most of the eighteenth century. Thus, if any British model existed for the delegates of the Constitutional Convention of 1787, it was parliamentary supremacy over the king, with both legislative and executive power centered in the parliament. Even the rise of a more assertive monarch, George III, which indirectly caused the American Revolution, did not uproot the parliament-dominated underpinning of the British system, which has continued down to the present. The American colonists did not like George III's assertiveness, rejected the model of royal prerogative for their new government, and believed that the legislature was a better friend of liberty — although not without some possibility for tyranny itself.
More important, proponents of robust executive power split hairs and make a questionable distinction between the language in Article I, Section 1 of the Constitution vesting congressional authority — "All legislative powers herein granted [my emphasis] shall be vested in a Congress" — and the language of Article II, Section 1 vesting executive powers —"The executive power shall be vested in a President." Alexander Hamilton originally made this "vesting clause" argument for expansive unenumerated (residual) executive power during the Pacificus-Helvidius debates with James Madison over George Washington's Neutrality Proclamation in 1793. However, modern-day proponents of executive power continue to make it, even though it is dubious.(Continues…)
Excerpted from "War and the Rogue Presidency"
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Table of Contents
INTRODUCTION What Is the Imperial Presidency?,
1 Constitutional Mandates for Defense and Foreign Policy,
2 America's Aggressive Expansion,
3 The United States as a Global Power,
4 The Rise of the Imperial Presidency,
5 War Empowers Executive Expansion,
6 Reclaiming Congressional Authority,
CONCLUSION Restoring the Founders' Vision of the Republic,
About the Author,