A revisionist version of American history is in the process of being written to account for and to justify the newly assertive role of Congress in the conduct of foreign policy. Like the revisionist history of the 1960’s, which created a myth of American belligerence as the principal cause of the cold war, the revisionist history of the 1970’s has given rise to a myth of its own: that with the emergence of the United States as a major world power, successive Presidents have violated the letter and spirit of the Constitution, have arrogated to themselves illegitimate powers, have ignored, deceived, bullied, and tricked the legislature, and have thereby led the nation into all sorts of reckless and even illegal overseas commitments. As the revisionists see it, this tawdry record has in turn virtually required Congress to reassert itself, to regain at least partial control of the policy-making apparatus of the state, and hence to ensure that the American government will once more function in conformity with the intent of the Framers of the Constitution.
In the new revisionist interpretation such congressional initiatives as the War Powers Resolution (1973), the Hughes-Ryan Amendment to the Foreign Assistance Act (1974), the Clark Amendment to the International Security Assistance and Arms Export Control Act (1976), the Foreign Intelligence Surveillance Act (1978), and, of course, the five Boland Amendments to a variety of Defense Appropriation and Intelligence Authorization Acts (1982-5), are landmarks charting a so-far imperfect reassertion of the will of the people against an overmighty executive—an “imperial Presidency,” to use the now-famous phrase of the historian Arthur M. Schlesinger, Jr. By demanding full information and increased oversight on every aspect of policy, by exerting restraints and prohibitions, and by putting into effect with growing self-confidence its “power of the purse,” Congress, it is hoped, can direct policy toward more humane and responsible ends abroad and help restore the system of “checks-and-balances” at home.
Unfortunately, like the revisionist history of the 60’s, this one too is based on a tendentious misreading of both the distant and the recent past. It falsifies the intent of the Founding Fathers. It provides a misleading account of the relationship between Presidents and Congress over the last two centuries. It ignores two-and-a-half decades of fruitful collaboration between the executive and legislature after 1945, mostly during periods when opposing parties dominated the two branches of government. Finally, it offers a thinly disguised ideological cover to the attempts of the post-Vietnam Congress to “reclaim” for itself powers that it never legitimately possessed. In short, it aims at replacing an allegedly “imperial Presidency” with the rationale for an imperial Congress.
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Contrary to today’s prevailing view, the reason the Framers of the Constitution assigned specific responsibilities to the different arms of the government was not only to safeguard against the emergence of an overmighty executive. The fear of excessive power accruing to the legislature was at least as great, and in fact it was that particular fear which preoccupied Madison and Hamilton. In Federalist 49, for example, James Madison spoke of “the tendency of republican governments . . . to an aggrandizment of the legislative at the expense of other departments.” And in Federalist 51 he continued: “The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions . . . will admit.” John Jay also warned, in Federalist 64: “It surely does not follow that because they [the people] have given the power of making laws to the legislature, that therefore they should likewise give them power to do every other act of sovereignty by which the citizens are to be bound and affected.”
Indeed, it is not too much to say that the prospect of a legislative body possessed of the power of the purse (“the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people”—Madison); entrusted also with the task of creating the agencies of government and investing them with the appropriate grants of authority; responsible for the collection of “taxes, duties, imposts, and excises, to pay the debts and to provide for the common defense and general welfare of the United States”; and empowered “to raise and support armies,” to coin money, to regulate commerce, and to declare war—all this filled many of the Framers with a fear that the evils of the old system of government against which they had rebelled would thereby be reproduced. Out of this wholly understandable fear arose Article 2 of the Constitution which stipulated that there should exist an institution, hitherto unknown to any previous republican form of government, called the Presidency.
Presidents, though responsible for the execution of the laws and hence the servants of Congress, would also be its masters for it was they who would be entrusted with speaking for the nation as a whole in all its dealings with foreign states. Presidents would negotiate treaties; the role of Congress would be restricted to ratification by only one of its houses, the Senate. A term of office was to be specified by the Constitution which could not be altered by any legislative decree without a constitutional amendment (otherwise, Hamilton argued in Federalist 68, a President “might . . . be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence”). By specifying that “The President shall . . . receive for his services, a compensation, which shall be neither increased nor diminished during the period for which he shall have been elected,” the Founding Fathers explicitly attempted to safeguard the prerogatives of the executive against the incursions of the legislature. (Hamilton in Federalist 73: “The legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him.”) Finally, in his capacity as Commander-in-Chief, the President would share with no one else, least of all with another branch of government, his authority over the armed forces of the nation (“Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number”—Hamilton in Federalist 70.
Moreover, it was in order to restrain the often parochial and vacillating will of Congress that the Framers granted the President the extraordinary power of veto, requiring a majority fully of two-thirds plus one vote in both Houses to overrule. Madison, hardly a friend of overmighty executives, justified this constitutional provision in Federalist 51.
Notwithstanding what has often been asserted, all this was not a case of aristocrats trying to put together a set of institutional safeguards to check the inevitable excesses of democracy. The constitutional provisions were in recognition of the fact that the tasks of deliberation and oversight, of regulation and appropriation, are wholly different from those of administration. Laws specify the conditions under which government agencies can operate, just as the rules of a game define the boundaries within which sports can take place. But the aim is to facilitate, not to obstruct. The executive, with its accumulated experience of attempting to enforce rules and regulations, must act as a permanent check on a legislative process that would otherwise be out of control.
The executive’s power of veto was granted by the Constitution so as to enable the national interest to override the sectional interest. It meant that from the beginning, the Framers envisaged the office of the Presidency as the summit of government and not merely as a coequal branch. Both through its responsibility for the efficient and swift dispatch of the affairs of state, and through its being the “organ of intercourse between the nation and foreign nations” (Hamilton), the Presidency, not the Congress or the judiciary, was to be assigned the task of national leadership.
It is extraordinary, then, that although envisaged as a check on the overmighty legislature, and as the directing force of the Republic, the executive was characterized during the first hundred years or so of its existence by weakness and subservience to Congress. Tocqueville registered his surprise at this: “The President of the United States possesses almost royal prerogatives which he has no occasion to use. . . . In everything important which he does, he is directly or indirectly subject to the legislature; where he is entirely independent of it, he can do almost nothing.” He went on to offer two explanations, the first rather obvious: since “it is generally in its relations with foreign powers that the executive power of a nation has the chance to display its skill and strength,” and since the United States did not interact intensively with any other nation, the President did not really have all that much to do. Secondly, Tocqueville observed, American Presidents spent their term of office preoccupied with devising schemes to win public esteem so that they could run again, rather than with adopting necessary but unpopular measures.
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But Tocqueville failed to see the real problem. By promulgating the separation of powers the Framers had left deliberately vague the whole issue of where ultimate sovereignty resided. The legislature made laws, the executive executed them, the judiciary decided whether they were in conformity with the Constitution. All very straightforward. But this “harmonious system of mutual frustration” (in Richard Hofstadter’s words) could only be surely applicable to civil situations in which, indeed, class had to be balanced against class, interest against interest, faction against faction, and where outcomes were not predetermined but were the result of numerous individual decisions and encounters with other individuals. Try as one might, however, one could not prescribe a system of government modeled on this 18th-century notion of a harmony of interests. In a struggle between the legislature and the executive, who would have the authority to adjudicate? What if, for instance, the presidential power of veto proved of no avail in checking the encroachments of the lawmakers? Would that be the last word on the matter?
An exasperated President Jefferson once wrote in despair that “a strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself . . . thus absurdly sacrificing the end to the means.”
Jefferson was making a point, familiar to anyone who had followed the 17th-century debates on the matter, that the sovereign could not be bound by his own laws. But again, who was to be the sovereign? John Locke, in the Second Treatise on Government, after having pronounced the Legislature the “one Supream Power . . . to which all the rest are and must be subordinate,” then went on to speak of the prerogative of the executive “to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it. . . . For Prerogative is nothing but the Power of doing publick good without a Rule . . . a latitude left to the Executive power, to do many things of choice, which the laws do not prescribe.”
Small wonder, then, that the Framers were torn and that the thinkers and politicians who followed them were thoroughly confused. “Sovereignty resides in the people” and “A government of laws and not men” were useful slogans, but provided no real answers. A President who was to be the leader of the nation as well as the executor of the will of Congress? When Locke attempted to face the consequences of his own prescription to separate the branches of government and asked himself who would adjudicate in any conflict between them, he declared that “there can be no Judge on Earth. . . . The People have no other remedy in this . . . but to appeal to Heaven.” In the United States one could and did appeal to the Constitution: Article 1 specified the responsibilities of Congress, Article 2 the responsibilities of the President, and it would be up to the Supreme Court to decide if the one had been encroaching on the other. But what about those discretionary powers that Locke mentioned? And were not those discretionary powers of the very essence of government, especially in all matters pertaining to relations with other states?
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In fact, throughout American history, at least until recently, the exigencies of exerting the nation’s will in a world full of rivals required the expansion of the executive’s discretionary powers. Thus in this area at least, the question of sovereignty was implicitly resolved in favor of the Presidency. Notwithstanding Tocqueville’s (accurate) observation of presidential weakness vis-à-vis Congress, when a chief executive saw the need to act, he was generally able to do so.
As early as 1801 Thomas Jefferson issued secret orders to a naval squadron to go to the Mediterranean to “chastise” the Barbary pirates who had been looting American merchant ships; Congress, although endowed with the power “to declare war,” was not notified for more than six months, in Jefferson’s first annual message. Two years later, Jefferson was to purchase Louisiana for $15 million from Napoleon before Congress had appropriated funds for this purpose. Later he was to be accused of restocking military arsenals using money Congress had not yet voted him.
In the annexation of Florida and Texas, Presidents led and Congress ratified. However weak the executive seemed to Tocqueville, it was powerful enough to enable President Polk to initiate the Mexican War in 1845 (three years later the Senate passed a resolution thanking General Zachary Taylor for his successes in “a war unnecessarily and unconstitutionally begun by the President of the United States”). Attempts by a few Congressmen to reprimand President Pierce for the “unauthorized” destruction of Greytown in 1854 failed ignominiously. Nor did Lincoln feel hemmed in by Congress when in April 1861 he ordered the blockade of Southern ports and demanded that money not yet appropriated be spent on increasing the size of the armed forces despite the explicit stipulation of the Constitution that the legislature was “to provide for organizing, arming, and disciplining the militia. . . .” Lincoln’s suspension of habeas corpus was sanctioned by Congress within twelve months (“I will violate the Constitution, if necessary, to save the Union”); moreover, he freed the slaves without bothering to consult anyone.
True, there were occasions when Congress rose to challenge the prerogatives of the President, as in the attempt to censure Andrew Jackson for dismissing his Secretary of Treasury. In 1868 Congress went even further and sought to impeach Andrew Johnson after he had fired Edwin M. Stanton, his Secretary of War, in defiance of the newly enacted Tenure of Office Act. But Congress never sought to prescribe or proscribe any actions in the area of national security. Although all foreign treaties, as required by the Constitution, were submitted to the Senate for approval, it has been estimated that between 1789 and 1939, over 1,300 executive agreements were concluded by successive Presidents with foreign countries without the consent of the Senate. And it was widely recognized that just such executive agreements, needing neither prior authorization nor subsequent ratification, constituted presidential leadership.
The view of the legislators on this matter was on the whole reflected best in John Marshall’s pronouncement in 1800 in the House of Representatives, prior to becoming Chief Justice: “The President is the constitutional representative of the United States with regard to foreign nations. He [is] . . . most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. . . . The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.” Which, as we have seen, was probably more or less the way the Framers wanted it.
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In a famous case, United States v. Curtiss-Wright Export Corporation (1936), Justice Sutherland spoke of the “very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress. . . .”
These words spell out the extent to which the Presidency, and not Congress, had by that time come to embody the national sovereignty. And a good thing it was, given the transformation of the United States in the 20th century into a world power, and the consequent requirement that Presidents be enabled to act on the’ international scene in accordance with a broad understanding of the national interest. By the first decades of the century, though plenty of Congressmen were still being successfully elected and reelected while happily singing an earlier version of George McGovern’s “Come Home America,” no politician could hope to get anywhere near the White House with a similar message. Congress might refuse to ratify the Versailles Treaty (1919) and enact the Neutrality Acts (1935-7), but so long as the presidential prerogative in the field of national security was recognized, whatever isolationist or parochial mood prevailed in Congress could be neutralized.
In the aftermath of World War II, even that isolationist mood was tempered by the widespread feeling within Congress that the United States had to take the lead in combating Communism and Soviet expansionism. And thus were ushered in over twenty years of fruitful bipartisan cooperation between executive and legislature in the field of foreign policy. Arthur Vandenberg, the Republican chairman of the Senate Foreign Relations Committee and a former diehard isolationist, nevertheless proved instrumental in getting the Democratic President Harry Truman’s $400 million Greek-Turkish aid bill (which inaugurated the policy of containment) through the Senate in 1947. The Democrat Lyndon Johnson, as Senate majority leader in the Republican Eisenhower years, played a key role in the passage of a 1955 joint resolution of Congress at the time of the Quemoy-Matsu crisis, to the effect that “The President is authorized to employ the armed forces of the United States as he deems necessary for the purpose of securing and protecting Formosa and the Pescadores against armed attack.”
Johnson, and Sam Rayburn, the Democratic Speaker of the House, were also later to play a crucial role in the passage of the joint resolution that enunciated the so-called Eisenhower Doctrine in 1957: “The President is authorized to undertake, in the general area of the Middle East, military assistance programs with any nation or group of nations of that area desiring such assistance.” Seven years earlier Truman’s old enemy, Senator Robert Taft, along with another very powerful Republican Senator, William Knowland, had provided the crucial congressional support for the “unauthorized” use of American forces stationed in Japan to assist the government of South Korea, though there had been no mutual defense treaty with that country, though a specific request for aid had not even been received in Washington, and though Congress had not been informed of the deployment of U.S. forces until two days after the presidential order.
Even the famous (or infamous) Gulf of Tonkin Resolution (1964), which read that “The United States is prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in its defense of its freedom,” passed the House unanimously, and received only two negative votes in the Senate. Later on, of course, Congressmen would claim that President Johnson had tricked them into endorsing this so-called “escalation” of the Vietnam war, and set about trying to repeal the Resolution (they finally succeeded in 1971). But the point is that in 1964 there was still a sufficient consensus on the objectives of American foreign policy for the resolution to be moved in the Senate by the Democrat William Fulbright and to be endorsed by the Republican Barry Goldwater.
Then in June 1969, with the war in Vietnam still in progress, Congress fired its first salvo against the power of the President to conclude executive agreements, the major means by which Presidents had been able to ensure the unity and continuity of national policy despite the vacillations and political partisanship of Congress. Fulbright sponsored a resolution, subsequently passed by the Senate, that the United States could not make a binding national commitment to use military force on behalf of another country unless that commitment had been accomplished “by means of treaty, statute, or concurrent resolution of both Houses or Congress, specifically providing for such a commitment.” When, a year later, the Nixon administration concluded a military-base agreement with Spain containing various security guarantees, the Senate responded with a resolution declaring the agreement not to be a national commitment, irrespective of anything that may have been promised to the Spanish government.
Nixon rejected this, rightly claiming that Congress could not, by subsequent concurrent resolution, strip an executive order of its legally binding effect. But this was just step one. In 1971, when the Nixon administration signed an agreement with Portugal extending credits worth $400 million as well as facilitating the use of certain military bases, the Senate demanded that Nixon submit the agreement for ratification just as if it were a treaty. He refused, arguing, again correctly, that Congress lacked the constitutional authority to legislate in advance as to which international agreements were to be made by treaty, and which by executive agreement. These were the early stages of a campaign then beginning to gather momentum to reduce the President to a mere figurehead who would have no powers but what Congress granted him.
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The onslaught on the Presidency that took place in the aftermath of frustration and humiliation in Vietnam was justified on the grounds that serious abuses of power had occurred in the executive and that the time had come for the legislature, the directly elected representatives of the people, to reclaim the powers that had been usurped by a succession of war-making Presidents. Naturally, however, overseeing the activities of the executive would not be enough. Nor would withholding appropriate funds.
Right from the start the intention was to move from restraining and inhibiting the executive to proposing and subsequently implementing policy.
The campaign proper began with a provision in the Defense Appropriations Act of 1970 which stipulated that “none of the funds appropriated by this Act shall be used to finance the introduction of ground troops into Laos and Thailand.” Then came the Cooper-Church Amendment to the supplemental Foreign Authorization Act of 1971: “None of the funds authorized or appropriated pursuant to this or any other Act may be used to finance the introduction of United States ground combat troops into Cambodia, or to provide United States advisers to or for Cambodian military forces in Cambodia.” Then, along similar lines, came the Mansfield Amendment to the Defense Procurement Authorization Act of 1972: it must be “the policy of the United States to terminate at the earliest practicable date all military operations of the United States in Indochina, and to provide for the prompt and orderly withdrawal of all United States military forces.” And then of course came the War Powers Resolution of 1973, enacted over President Nixon’s veto, which stipulated that armed forces, once introduced, were to be withdrawn after sixty days unless Congress authorized otherwise.
Again in 1974 the Hughes-Ryan Amendment to the Foreign Assistance Act provided that “no funds appropriated under this or any other Act may be expended by or on behalf of the Central Intelligence Agency for operations in foreign countries, other than activities intended solely for obtaining necessary intelligence.” Two years later the Clark Amendment to the International Security Assistance and Arms Export Control Act denied funds for military operations in Angola “unless and until . . . Congress enacts a joint resolution approving the furnishing of such assistance.”
Legislative prohibitions, in other words, were not merely meant to fetter the President’s discretionary powers, they were actually meant to lead to different policy outcomes from those which the President as “the constitutional representative of the nation” had intended. If to these prohibitions are added the Ethics in Government Act of 1978 (which the Justice Department now claims is unconstitutional) and the innumerable House and Senate select committees investigating every department of government, trying to unearth scandals and submitting officials to the most intense scrutiny, a picture emerges of a legislature arrogating to itself powers it not only never had, or was ever designed to have, but ones which it is uniquely unqualified by its very nature to exercise.
Not only do prohibitions limit the flexibility necessary for decision-making, they also often stand in contradiction to one another. Enacted for a variety of different reasons, ranging from the partisan to the ideological, in toto they add up to an incoherent foreign policy. Nor are the restrictions pursued with the kind of consistency or flexibility by which they could bring results. Though Congressmen today have far bigger staffs at their disposal than ten or fifteen years ago, and though traveling to exotic countries is a prerequisite of making a name for oneself as a national figure, they tend not to know a great deal about the world outside. Consequently they must rely for the information necessary to implement their policies on officials of the very executive whose stated objectives they are seeking to thwart. Little wonder that congressional foreign-policy-making has become lost in a miasma of conflicting goals.
Take the issue of aid for the Nicaraguan resistance. When the question first came up in the House of Representatives in 1982, the first Boland Amendment was adopted which barred all aid to the rebels except that used to interdict the flow of supplies from the Sandinista government to the Communist guerrillas in El Salvador. (The Amendment also stipulated that “none of the funds provided in this Act may be used . . . to furnish military equipment, military training or advice, or other support for military activities . . . for the purpose of overthrowing the government of Nicaragua”—thus bizarrely proposing an American stake in the perpetuation of the Sandinista regime.) The Reagan administration accepted this on the grounds that it was better than a total ban. Yet how it would be ensured that arms going to the Nicaraguan resistance would be used exclusively to fight on behalf of the El Salvador government rather than against the Sandinistas was never clarified by the policy-making establishment on Capitol Hill.
A year later, in 1983, the House decided by a 33-vote margin to ban any aid to the contras, but the Senate voted to approve the continuation of the entire program; the two chambers then agreed on a compromise allocating $24 million to the resistance. Significantly, this second Boland Amendment had a proviso—unconstitutional on the face of it—barring the President from spending any discretionary funds to continue the program after the $24 million ran out unless he secured congressional approval. When the President sought such approval in 1984 the House denied it by a 64-vote margin. In August 1985, $27 million in non-lethal “humanitarian” aid was voted for the contras. In August 1986 both House and Senate voted for $70 million in military and $30 million in non-lethal aid.
As if all this were not confusing enough, Congress had stipulated that the August 1985 package of $27 million be administered by the State Department and not the CIA or the Defense Department; in addition, although all aid was barred from October 1984 to September 1985 during the period of the third and most restrictive version of the Boland Amendments, the President was allowed to spend $14 million on assisting the contras provided he reported to the Congress that the money was essential, and so long as both houses approved.
What is one to make of such a muddle? What is American foreign policy toward Central America? As the Iran-contra hearings continued week after week this summer, ostensibly to determine how best to improve the policy-making machinery of the U.S. government, but in reality trying to establish who was guilty of a criminal conspiracy to violate the Boland Amendment, no one—least of all Congress—seemed to know the answer to that question.
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The various prohibitions, vetoes, and constraints which Congress has been enacting in recent years are at best constitutionally dubious. As Dan Wallace, Jr., and Allan Gerson pointed out recently in the Washington Post (June 5), although Congress may have the power to withhold or not appropriate funds, “once funds have been appropriated it does not have the power to ‘condition’ how they will be spent if the effect is to emasculate constitutionally protected powers.”
Congress is no more successful when it goes out of its way to usurp the power of the executive while also trying not to violate the Constitution. A case in point is the third and most restrictive form of the Boland Amendment, applicable from October 3, 1984 to September 30, 1985: “During the fiscal year 1985, no funds available to the Central Intelligence Agency, the Department of Defense, or any other agency or entity of the United States involved in intelligence activities may be obligated or expended for the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement, or individual.” The convoluted phrasing betrays the fact that the enacted legislation was the product of a devious compromise. Why not just simply say “No money for the contras” and be done with it? The reason is that from the start the Boland Amendments sought not to challenge the prerogative of the executive to make foreign policy. The aim was to avoid placing restrictions on the person of the President himself while thoroughly constricting the agencies of the government. A constitutional showdown was thus avoided and the Defense Appropriations and Intelligence Authorization Bill could become law.
But this is where the problems start. If the President is to be exempt from a prohibition, might he not be able to do anything he wants to do, simply by working outside the normal channels of government? What is to stop him or his staff from seeking funds for any of his projects from whatever sources, at home or abroad, as he deems fit? In such a situation a number of governments can come into existence, all answerable to one man. This state of affairs is known as despotism: it would be the ultimately ironic consequence of the rise of an imperial Congress.
Seen even in its own terms, the 15-year rule of the imperial Congress has been remarkably unsuccessful. Laws are laws and policies are policies and the two do not mix very readily. Thus policy failures abound. Congressional arms embargoes during the Cyprus crisis meant that the United States, the senior NATO power, was unable to bring any pressure to bear on a conflict between two NATO countries. The Clark Amendment ensured the survival and entrenchment of the Communist regime in Angola. The Church Committee hearings on the CIA almost destroyed the organization. Even during the present Iran-contra crisis, Congress has totally failed to provide national leadership. Its anxieties as to whether the Boland Amendment had been violated or not seem to represent, at best, the parochial concern of a Congress dominated by Democrats seeking to inflict on a Republican President as much damage as possible. At worst, and worst comes increasingly to seem the reality, they represent a total abdication of responsibility for national security.
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