There is a general impression that Ronald Reagan has been a strong President, perhaps the strongest since Franklin D. Roosevelt. And indeed in a number of ways Reagan has exercised power very effectively. Yet as keeper of the institution of the presidency, he has been a failure.

Liberals may still decry the “imperial presidency,” but the reality is that since the last months of the Nixon administration in 1973-74, the presidency has been hampered by two major congressional restrictions on its ability to function. One, involving domestic affairs, is the Budget and Impoundment Control Act; the other, involving foreign policy, is the War Powers Resolution. Both passed despite President Nixon’s vigorous opposition, and both vastly expanded the powers of Congress at the expense of the President’s. To top it all off, the art of prosecutorial politics, developed during Watergate, was perfected by Congress during the Reagan years as yet another effective weapon in the struggle for power against the executive.

As President, Reagan was presented with important opportunities to fight back in each of these three areas and thereby to reverse the decline of the presidency. In each case he let the opportunities slip. Thus, after two landslide victories and eight years in office, Reagan will leave the presidency even weaker that he found it.

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I

The Budget Act of 1974 was crafted by Congress to rob the President of the ability to limit spending, while making it possible for a fragmented collection of Congressmen to spend and at the same time to evade the responsibility for doing so.

There was no formal budget until 1921, when Congress authorized the President to submit one annually. This system worked well for many years, with the White House clearly responsible and accountable. In addition, the impoundment power gave Presidents final authority on whether to spend funds appropriated by Congress. Budgets were treated as maximum amounts that the President could use for various programs, not as minimums. And, in fact, before 1974, Presidents often decided not to spend appropriated funds, either because the purpose of the expenditure no longer made sense or for macroeconomic reasons.

Every President since Franklin Delano Roosevelt, who impounded $500 million that had been appropriated for public works, used this power to limit spending. By impounding funds John F. Kennedy cut spending by 6 percent. In 1966, even though he was at the height of his War on Poverty, Lydon Johnson impounded more that $5 billion in funds that had been appropriated for everything from agriculture to education.

Yet when in 1973, Nixon tried to impound $12 billion in appropriated funds—including $6 billion of an $ll-billion sewage-treatment bill Congress had passed in 1972 over his veto—the roof fell in. Ignoring the rich history behind Nixon’s action, Senator Sam Ervin, chairman of the Government Operations Committee, denounced it as “an item or line veto,” which, said Ervin, was not permitted by the Constitution. Nixon countered that presidential power to impound funds “when the spending of money would mean either increasing prices or increasing taxes . . . is absolutely clear.” A Justice Department spokesman also testified that the impoundment power was “an implied constitutional right” of the executive branch.

The merits of the constitutional debate were on Nixon’s side, but he was then at the nadir of his Watergate fortunes and Congress was determined to make the most of the opportunity to increase its own powers at the expense of the presidency. Accordingly, the budget law passed in 1974 completely prohibited impoundments and created “deferrals” and “rescissions” in their place. Henceforth Presidents could only delay spending by issuing a deferral, but either the House or Senate could pass a resolution ordering that the money be spent. A President could also rescind an appropriation, but for the recission to be effective, both the House and Senate would have to vote their approval within 45 days. Absent any action by the two houses, the President would be required to spend the funds after the 45-day period.

Having survived a legal challenge in the Supreme Court (there was no way Nixon could win anything in the midst of Watergate), the new law went on its predictable course: since 1974, very few deferrals or rescissions have been allowed by Congress.

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Worse yet, by 1987, Congress was violating its own rules. Instead of passing thirteen separate appropriations bills for different functions of government, as required by the 1974 budget law, Congress now rolled them all into one massive “continuing resolution.” For 1988 this omnibus $605-billion appropriations bill, running to 1,057 pages with an accompanying conference report of 1,194 pages and a reconciliation bill of 1,186 pages, was presented to the President late in December 1987 with less than a day to read before federal funds ran out. Rather than close the government down (something he had done in his first term, to no long-range effect), Reagan signed.

For the next two months the country witnessed the absurd spectacle of Congressmen gradually discovering what they had approved and President Reagan learning what he signed. Among the most well-publicized outrages was a 20-percent pay hike for top congressional staff members, which no Congressman has yet admitted to inserting and which brought their salaries to the level of four-star generals and above Undersecretaries of State. Another was a provision secretly inserted by Senator Daniel Inouye of Hawaii to send $8 million to support a school for North African Jewish immigrants in France. (The brouhaha over this provision eventually forced revocation.)

A third was another secret provision, inserted by Senator Edward Kennedy, which in effect prohibited the Federal Communications Commission from allowing Rupert Murdoch to own both a newspaper and a television station in New York and Boston. This provision was later invalidated by the U.S. Court of Appeals in Washington, but not before Murdoch had already been forced to sell the New York Post at a firesale price.

This total breakdown in the budget process offered President Reagan a wonderful opportunity to challenge the 1974 law that had so badly clipped the presidency’s authority over the budget. Indeed, in a series of articles written for the Wall Street Journal, Stephen Glazier argued that even aside from the impoundment power, the President actually had the line-item veto if only he would use it. Glazier’s thesis was based on Article I, Section 7, Clause 3 of the Constitution, which insists that “every Order, Resolution or Vote to which the Concurrence of the Senate and House of Representatives may be necessary” must be subject to possible presidential veto whether or not defined as a “bill.” (The intent was to ensure that Congress could not avoid the veto by legislative legerdemain—such as all-in-one continuing resolutions.)

Yet when asked by Attorney General Edwin Meese to assess the Glazier argument, Charles Cooper, then head of the Justice Department’s Office of Legal Counsel, offered a timid response that went a long way toward explaining how the presidency has become so weakened. Cooper said that the courts have never interpreted this clause as establishing a line-item veto, and fretted that it might be a risky claim for a President to make. And in a similar spirit, Vice President George Bush wrote Glazier that “the lawyers have persuaded me that the practical problems of asserting the kind of veto you suggest or of framing it properly for judicial resolution are too great. . . .”

In reply Glazier told the Vice President that “What the executive needs on the Clause 3 Veto is advice from lawyers who act like advocates, not judges. The executive needs advice on how to achieve the policies that the executive desires. . . .” To this, one might add that, in addition to presidential lawyers who act like lawyers, what we also need are Presidents who act like Presidents, who are careful to guard presidential powers more vigorously than Congress can whittle them away.

Ronald Reagan has not been such a President with respect to the budget process.

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II

The War Powers Resolution, requiring congressional approval for the commitment of U.S. forces in combat abroad for longer than 60 days, and its progeny (notably the five Boland amendments limiting presidential discretion in aiding the democratic resistance in Nicaragua) have had the same paralyzing effect on foreign policy that the prohibition of impoundments and the evisceration of the veto have had on controlling the budget. To be sure, no President has made the mistake of acquiescing in the constitutionality of the War Powers Resolution, which was passed in 1973 over the veto of President Nixon. But certainly they have all had to condition defense strategy on the possibility that Congress might indeed some day try to enforce its provisions.

Eugene V. Rostow is clearly correct in saying that this resolution is a case of “the primacy of procedure over substance” in foreign policy. Thus, he writes, “We try to devise procedural solutions for problems like Vietnam because the leaders of our public opinion have not achieved a national consensus about the kind of foreign policy the safety of the nation requires at this stage of world history.” There is no better example of how procedure has been used to cripple the already weakened back of presidential authority over foreign policy than the recent history of U.S. efforts to help the Nicaraguan contras in their struggle against the Sandinista regime.

In retrospect, the beginning of the end for this effort dates from a strange episode in the spring of 1984, when the CIA’s involvement in the mining of Nicaragua’s Corinto harbor was leaked. This leak had several fatal effects. As a strategic matter, it terminated a successful operation that was slowing the delivery of Soviet weapons to Nicaragua at a time when the Sandinistas had not yet consolidated their power. But no less important was the fact that the affair ignited a distrust of the administration in Congress that would soon result in the extraordinary strictures of the Boland amendments. These constraints on executive-branch action in Central America in turn made the Iran-contra affair a scandal waiting to happen.

Despite later expressions of horror by some Senators, there had never been any deception about CIA involvement in the mining. In accordance with reporting requirements that had been set up in the 70’s to oversee the CIA, Director William Casey, beginning in January 1984, briefed Congress eleven times on the mining. These briefings were straightforward. One classified report to the intelligence committees on CIA activity stated: “Magnetic mines have been placed in the Pacific harbor of El Bluff, as well as the oil terminal at Puerto Sandino.”

Not surprisingly, the congressional minority opposed to any U.S. aid for the contras began to leak details of the operation. But the decisive leak came in April from an odd source, Senator Barry Goldwater, who was then chairman of the Senate Intelligence Committee, in an odd place, the floor of the Senate. The way it happened is a classic cautionary tale of the risks to the secrecy of covert operations in any reporting requirement.

Senator Joseph Biden was reading a classified report on the mining prepared by the intelligence staff. Surprised, Biden asked Senator William Cohen what he knew about the operation. The two then turned to Goldwater. For reasons that remain unclear, Goldwater immediately began reading the classified report into the record. His staff director raced over to Cohen, screaming, “Get him off, get him down, stop him from reading that.” But it was too late. Though Goldwater’s citations were struck from the Congressional Record, journalists present reported what they had heard.

The leak was unfortunate, but more damaging yet was the reaction of the liberals, led by Senator Daniel P. Moynihan, Goldwater’s co-chairman on the bipartisan Intelligence Committee, who announced that they had never been informed by the CIA about its participation in the mining.

The best explanation for this reaction is, paradoxically, that many Congressmen simply could not forgive the CIA, not for any alleged illegalities but for just the opposite: for doing its duty under the law and reporting the mining. Having been told, members of Congress were put in an awkward position. They either had to acknowledge that they knew and had at least tacitly approved, or they had to deny that they knew and point accusatory fingers. Naturally they chose the latter course.

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Not only did Ronald Reagan fail to seize on the chance provided here to challenge reporting requirements of dubious constitutionality and practical consequence, he even passively accepted the equally dubious fruit of the mining episode—the third Boland amendment.

The immediate effect of this provision—which would ultimately serve as the basis for the indictments of Lieutenant Colonel Oliver North, Admiral John Poindexter, Richard Secord, and Albert Hakim—was to cut the usual intelligence agencies out of the Central America “loop.” With the CIA and the Defense Department now prohibited from aiding the contras, only the National Security Council was left to do the job. It was thus that Oliver North became the contras’ one-man lifeline. This is the meaning of the pitiful computer message North sent to Poindexter in 1986, while operating under the Boland strictures: “What we need is to get the CIA re-engaged in this effort so that it can be better managed than it now is by one sightly confused Marine Lt. Col.” Obviously, President Reagan had put his staff officers into an impossibly difficult position by signing the continuing resolution that included the Boland amendment.

To be sure, no one then anticipated the “criminalization of policy differences,” as North would later describe the phenomenon to his congressional tormentors. Nevertheless, it was clear after Corinto and the Boland amendments that the procedure-based approach by Congress to the real issues raised by the events in Nicaragua would handicap the administration’s policy. In the event, Congress was able to starve the contras of consistent aid long enough to force them to surrender. This will likely be remembered as the major foreign-policy disaster of the Reagan years, and the irony is that the “great communicator” never managed to force the yes-or-no, up-or-down vote by Congress that would have established a clear line of responsibility if the contras were forced off the field of battle.

And here again—here perhaps most of all—Reagan let slip a great opportunity to take his case to the public. In November 1986, Reagan permitted Attorney General Meese, in announcing that funds from the sale of arms to Iran had been diverted to the contras, to treat the matter as a possible crime. What Reagan could and should have done was to go before the American people and say that while the diversion itself had not been authorized, it was consistent with his policy of doing everything within the power of the executive branch unilaterally to help the contras. And he could have blamed Congress for forcing such innovative financing by not pursuing a consistent policy of its own.

This argument in favor of executive power and against congressional usurpation was of course eventually made, to the acclaim of the nation and to the deep embarrassment of Congress—but it was made by Oliver North and not by Ronald Reagan. “It is mind-boggling to me,” North told the Iran-contra joint committee,

that Congress has attempted to criminalize policy differences between co-equal branches of government and the executive’s conduct of foreign affairs. I suggest to you that it is the Congress which must accept the blame in the Nicaragua freedom-fighter matter. Plain and simple, Congress is to blame because of the fickle, vacillating, unpredictable, on-again, off-again policy toward the Nicaraguan democratic resistance.

It is entirely possible that if the diversion had been described by Reagan himself as overexuberance by patriotic officials trying to keep the contras alive during congressional fudging on the issue, the affair could have strengthened the presidency instead of nearly paralyzing it for its last two years. But Reagan decided to invoke the ignorance defense, claiming that he had no idea that any of his staff had been helping the contras or where the necessary funds had come from. This defense was hardly credible, and indeed, as even Arthur Liman, the Senate’s chief interrogator, has acknowledged, it represented a great political blunder. Looking back recently at the scandal, Liman said:

The reality of it is that you had a catastrophe in national policy that the President could have ended before it got off the ground by saying, “Yes, it was a mistake. I authorized it.” He even could have dealt with the diversion and he would not have been impeached. But there were inconsistent statements coming out and there were all the earmarks of a coverup and inevitably that led to the congressional investigation.

Furthermore, the ignorance defense conceded too much. For it implicitly accepted congressional authority over executive-branch aid despite a 200-year history full of unilateral presidential acts much more extensive than a few million dollars for the contras. Thus, as the minority report of the Iran-contra committees emphasized:

The administration did proceed legally in pursuing both its contra policy and the Iran arms initiative. . . . It is important to stress, however, that the administration could have avoided every one of the legal problems it inadvertently encountered, while continuing to pursue the exact same policies as it did.

It fell to these Republican Congressmen to remind Reagan that “The President’s inherent constitutional powers are only as strong as the President’s willingness to defend them.”

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III

For North and Poindexter, who had already been sacrificed to an insatiable Congress armed with the unchecked powers of a special prosecutor, it was a reminder that came too late. But Reagan did not even take note of it in connection with a subsequent congressional challenge to one of the clearest presidential prerogatives in the Constitution, the power to negotiate treaties.

This challenge came in the course of the debate over ratification of the INF treaty which the Democrats, led by Senator Sam Nunn, decided to use in pursuing their longstanding battle with Reagan over whether or not the ABM treaty of 1972 permits SDI to be tested in space. Thus as the price of ratifying the INF agreement while Reagan was in Moscow at his summit with Mikhail Gorbachev, the Democrats added the “condition” that treaties must be interpreted according to the “common understanding . . . shared by the President and the Senate at the time the Senate gives its advice and consent to ratification.”

Apart from the problems of interpretation it presents, this condition is blatantly unconstitutional. The Constitution says that Presidents negotiate treaties with other countries, not with the Senate. Treaties are contracts between nations, not between branches of our government. The Senate can pretend to bind the U.S., but none of its “implicit understandings” (as a report by the Foreign Relations Committee calls them) will bind other nations.

In short, the Senate can withhold its ratification, or it can insist on renegotiation, but it cannot negotiate with the administration over what the Senate would like the treaty to have said, thereby binding the U.S. but leaving the Soviets free to adopt a less restrictive interpretation.

Nevertheless, before the vote on the condition, Reagan’s chief of staff, Howard Baker, announced that the White House did not oppose its inclusion, and it passed the Senate overwhelmingly. Having paid the price in the coin of presidential power and constitutional integrity, Reagan was awarded with the treaty in time for a symbolic signing ceremony in Moscow.

Robert Bork has suggested that the presidency would be in much better shape today if Richard Nixon had reacted to the passage of the War Powers Resolution by denying it had any legal significance at all. “He might have made the resolution’s true nature apparent by withholding his veto,” Bork has said, “and sending a note back to Congress saying something like, ‘thank you for your essay on your understanding of my constitutional powers. When time permits, I will send you my essay on my understanding of my constitutional powers.’” Exactly this kind of reaction by Reagan to the INF condition would have been entirely appropriate, but it came from him only two weeks after the vote when he wrote in a letter to the Senate:

The principles of treaty interpretation recognized and repeatedly invoked by the courts may not be limited or changed by the Senate alone. . . . Accordingly, I am compelled to state that I cannot accept the proposition that a condition in a resolution to ratification can alter the allocation of rights and duties under the Constitution; nor could I, consistent with my oath of office, accept any diminution claimed to be effected by such a condition in the constitutional powers and responsibilities of the presidency.

In response, Senator Nunn in effect said what Bork thought Nixon (and Reagan) should have said: “The President’s letter is entertaining but irrelevant.” And Senator Robert Byrd added: “The fight is over and apparently the President just woke up to find out who won.”

Once again, then, Ronald Reagan permitted a further weakening of the powers of the presidency.

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IV

Another great loss to the presidency in the past eight years can be measured in the extraordinary number of people who came to Washington to work for Reagan and were then driven out of town on trumped-up “ethics” charges as the President stood by and waved them a fond farewell.

Venomous hatred of Reaganism, and its threat to the liberal status quo, may have made these attacks inevitable. But even if they could not have been prevented by Reagan, he certainly did little to counter them.

The best known and most scurrilous of them all, the brutalizing of Robert Bork, also provided the clearest example of White House passivity.¹ The long-term effect of this case on the judiciary and on the level of political debate remains to be seen, but the immediate result was that the Senate stopped bothering to hold hearings at all on some judicial nominees who could be described as controversial under the post-Bork rules of the game.

At least Bork was never threatened with jail. Other conservatives, aside even from the Iran-contra defendants, were not so lucky. The tragic story of what happened to Raymond Donovan early in Reagan’s first term proved to be a foretaste of things to come. No sooner had he been nominated as Secretary of Labor than congressional liberals began raising questions about his ethics. Then accusations intensified as Donovan cut the department’s budget by one-third. Eventually, the then Attorney General, William French Smith, was forced to appoint an independent counsel, who spent nine months investigating before reporting no evidence of wrongdoing. Even so, one month before the 1984 presidential election, Donovan was indicted in a New York State court on no fewer than 137 counts.

The first sitting Cabinet member ever indicted, he resigned from his position to stand trial. Yet so weak was the case against him that, without the defense even calling any witnesses, and on the first ballot, the jury not only found him innocent of all charges but applauded him at the conclusion of the trial. The day he was acquitted, Donovan (who in addition to everything else had been left with legal bills running to millions of dollars) asked an enormously poignant question: “Which office do I go to to get my reputation back?”

It was the same question that would be on the lips of all the other Reagan officials and appointees whose reputations were unjustly besmirched either by politically inspired prosecutions by independent counsels created by Congress or in inquisitorial congressional hearings, and who were left undefended by the White House. Indeed, thanks to Reagan’s acquiescence in the post-Watergate system of prosecutorial politics, it has become so dangerous to accept a job in the executive branch that many first-rate people will hesitate to do so in the future. And in this way too, Reagan has left the presidency even weaker than it was before.

The upshot is that the next President will inherit an office whose powers under the Constitution have been steadily eroded by various forms of congressional usurpation. George Bush says he wants to reverse this assault on the constitutional balance; Michael Dukakis seems satisfied with congressional supremacy. But even Dukakis, if elected, would soon discover that an aggressive assertion of executive power was in his own interest as President, and that the job is hardly worth having without the authority that Reagan never actually demanded and consequently never enjoyed.

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¹ See Suzanne Garment's article, “The War Against Robert H. Bork,” in the January 1988 issue of COMMENTARY for a detailed account.