:s u e VOL. 62, 0.8

NEWS LETTER University of Virginia • Institute ofGovernment MARCH 1986

FOREIGN POLICY UNDER THE CONSTITUTION: ------SHOULD HE P ESIDENT'S POWE E CU E? by Norman A. Graebner

Mr. Graebner is Randolph P. Compton to make foreign policy. Throughout the pres­ Despite such constitutional limitations on Professor of History at the University of ent century successive presidents have estab­ the presidential exercise of both the treaty­ Virginia. lished a constitutional monopoly in the area making and - the war-making powers, the This News Letter is supported in part by ofexternal relations, including the negotiating executive-as official spokesman of the na­ a grant from the National Endowment for and concluding of treaties. tion, as commander-in-chief of the armed the Humanities. In practice executive primacy has applied forces, and as head of the nation's bureau­ as much to war-making as to policy formu­ cratic structure-commanded from the be­ Official claims to executive primacy in lation. Article II of the Constitution assigned ginning both the authority and the special foreign affairs have kept pace with the ex­ the president the role of "Commander-in­ knowledge required to dominate the decision­ pansion of the country's international role in Chief of the Army and Navy of the United making process in the field of foreign and the twentieth century. The assumption that States." That article also gave the president, military affairs. In practice two special cir­ the control of external relations adheres to with the "Advice and Consent of the Senate," cumstances could contribute to the president's the president is based on the sentence in the power to make treaties, "provided that war-making power: where the threat was too Article II of the Constitution, which reads: two-thirds of the Senators present concur." trivial to require congressional approval and "The executive Power shall be vested in a Article I gave Congress the power to declare where the threat was too immediate to permit President of the United States of America." war and the House of Representatives control time for congressional consent. Even in the As early as 1906 Senator John Spooner of of the purse-the highest power of all. Wisconsin, in det nding President Theodore Roosevelt's Caribbean policies, asserted that the "executive" power in the Constitution gave the president exclusive control of almost every aspect of foreign affairs. "[S]o far as the conduct of our foreign relations is con­ CALENDAR OF UPCOMING EVENTS cerned," he declared, "the President has the absolute and uncontrolled and uncontrollable April 21-22: Virginia Circuit Court Clerks' Conference at the Fort Magruder Inn authority."That view, the senator added, had in Williamsburg. For more information or to register, call Robert N. Baldwin, executive been conceded by all authorities from the secretary, Supreme Court of Virginia, (804) 786-6455. beginning of the United States government. In the noted Supreme Court decision of April 24-26: Local Government Attorneys ofVirginia Spring Conference at Wmtergreen. The program will include sessions on Municipal Bond Issues, Pornography and Local United States v. Curtiss- Wright Export Cor­ Enforcement, and AIDS and the Public Sector. Governor Gerald Baliles will be the poration (1936) Justice George Sutherland keynote speaker. For more information, call Sandra Wiley, LGA's administrative officer, observed that the president is "the sole organ at the Institute of Government, (804) 924-3396. of the federal government in the field of international relations." Although 1ustice May 9-10: Jefferson Meetings on the Constitution in Alexandria and Charlottesville. Sutherland did not define the word "organ," See box on inside page for more information. it seems clear that the Court reserved for the executive the sole power to communicate with foreign governments, if not the sole authority ---

46

nineteenth century, the president on numer­ commitments to actions taken by both the war-making powers defied the intentions of ous occasions employed the armed forces executive and legislative branches, the admin­ the makers of the Constitution. against pirates, Indians, border ruffians, and istration replied: rioters without asking the approval of Con­ As Commander-in-Chief the President gress. When the British struck Washington INTENTIONS OF THE MAKERS has the sole authority to command our in 1814, President James Madison had no armed forces, whether they are in or Those who gathered at Philadelphia in time to call Congress into session to determine outside the United States, and, al- May 1787 to frame the Constitution of the a proper national response. These extreme though reasonable men may differ as United States faced the dual task of dividing conditions where the president's war-making to the circumstances in which he should power over foreign affairs both between the power was beyond challenge continued into do so, the President has the constitu- federal government and the states and be- the twentieth century. But between these tional power to send U.S. military tween the executive and legislative branches extremes two bodies ofconstitutional author­ forces abroad without specific Con- ofgovernment. Experience had demonstrated ity came into conflict-the president's power gressional approval. the dangers of state interference in matters as commander-in-chief and the Congress's of foreign commerce and the enforcement of power to declare war and to set the level of In denying that he required any congres- treaties; thus the delegates readily granted the expenditure. Normally the refusal of Con­ sional authorization for his invasion of Cam- federal government a monopoly over the gress to declare war would be sufficient to bodia in 1970, President Nixon declared that country's external affairs. The debate over the prevent or at least terminate any military he was meeting "his responsibility as Com- distribution of the war and treaty powers engagement. mander-in-Chief of our armed forces to take between the executive and the Can ress was n ou e -ly e claims 0 execu lve au­ the-action I con-sider .rre-cessa~-rrefend-the--Iong, arduous, and often bitter. thority over war-making reached their ulti­ security of our Amencan men. Throughout U d hArt· 1 f C .. d t· 11 . . n er t e IC es 0 onle era Ion a mate extravagance during the Vietnam War. the VIetnam War executive branch lawyers f t I . 1 1" 1" e e As that war, never declared, faced ever­ stressed the vagueness of the Constitution on pOdw~rsd? .glovernmen -t egdls. a ltvh , eCxecu IV , . .. an JU ICla -were cen ere In e ongress. increasing opposition in Congress, adminis­ questions of foreIgn pohcy and war powers; Th t· ·tt f C . 0 .. . . e execu lve comml ees 0 ongress In n tration spokesmen insisted that the president's they InSIsted that the question of authonty bI" h d 1" b h 11 ~ ranc Pow command of the armed forces eliminated the to act or to restrain be left to the requirements way esta. IS ahn ehxecu Ive C ; a L ­ ers remalned In t e ands 0 f ongress. ong necessity for congressional approval of the of the moment. Katzenbach would entrust b f h C t·t t· 1 C t· t .. ".. . d e ore t eons 1 u lona onven Ion me , war. Leonard C. Meeker, legal adviser to the the deCISIon to the Instinct of the nation an J h J th S t f F . Af'.C· S . .. ·b·l· " 0 nay, e ecre ary or orelgn laIr, State Department, declared in March 1966: ItS leaders for pohtical responSI llty. . . . d t d . t· f the govern ~ractic~. . .. avoca e a reorganlza Ion 0 - There can be no question in present In those who VIewed the C?nstitution ment that would separate the executive from as ImpreCIse argued that the preSIdent must the legislative functions, assigning to each circumstances of the President's au­ unencu~bered t~ thority to commit U.S. forces to the be left use the armed forces de artment those it would be best constituted and to ~ommlt the .Unlted States as he saw toPerform. Ja wrote to Thomas Jefferson defense of South Vietnam. The grant fit, seekIng congressIonal approval only when PA t 18 Y1786. of authority to the President in Article It.appeare d usefl·u or convenIent. on ugus ,. II of the Constitution extends to the To vest legislative, judicial, and exec­ actions of the United States currently It was not strange that writers and war utive powers in one and the same body undertaken in Vietnam. critics accused the executive of circumventing the Constitution and enlarging on practices of men, and that, too, in a body daily Arguing for presidential primacy in matters always regarded questionable. Speaking at changing its members, can never be of war, Under Secretary of State Nicholas Oxford University shortly after his November wise. In my opinion, these three great Katzenbach informed the Senate Foreign defeat in 1972, Senator George McGovern departments of sovereignty should be Relations Committee in August 1967 that declared characteristically: "I am convinced forever separated, and so distributed "the expression of declaring war is one that that the United States is closer to one-man as to serve as checks on each other. has become outmoded in the international rule than at any time in our history-and When the Constitutional Convention be­ arena. " Under modern conditions, he said, this paradoxically by a President who is not gan its deliberations in late May, the Virginia it was for the president alone to determine popular." Similarly, historian Arthur M. delegation submitted the Virginia Plan; its when and how the armed forces of the United Schlesinger, Jr. wrote in January 1973 that provisions became the basis ofthe subsequent States should be used. President Lyndon on matters of war and peace the president debates. The seventh provision asked for the Johnson made even greater claims for ex­ of the United States had become, with the creation of a national executive with the ecutive authority when he informed a news possible exception of Mao Tse-tung, the most authority to execute the national laws and conference, in August that the admin­ 1967, absolute ruler among the major countries of "to enjoy the Executive rights vested in Con­ istration did not require congressional au­ the world. gress by the Confederation." That provision thorization to commit armed forces, but had Apparently the whole system of federal compelled the delegates to consider what asked for the Gulf of Tonkin Resolution in checks and balances had disintegrated under powers involved in peace and war were es­ 1964 because, "if we were going to ask them the impact of a strong and active presidency. sentially legislative in character and which to stay the whole route ... we ought to ask Still, the Constitution is rather specific on were executive. them to be there at the takeoff." the matter of executive control of the war­ On June 1 several leading delegates ad­ Such extreme claims to executive primacy making power. By granting Congress the dressed the question of executive leadership over matters of war and peace continued authority to declare war, the Constitution in external affairs. Young Charles Pinckney, under the presidency of Richard Nixon. extended to that body the sole power to representing South Carolina, opened the dis­ When the Senate in 1969, by a vote of 70 determine its initiation and continuance. It cussion by advocating a vigorous executive, to 16, passed' the National Commitments is no less certain that the assumption of but warned that the extension ofthe executive Resolution, which sought to limit national executive control of the treaty-making and 47 powers of the exi ting Congress to peace and In distributing the war powers, the Com­ might be construed to mean conducting it, war "would render the Executive a Monar­ mittee of Detail designated the president the Convention adopted Madison's resolu­ chy, ofthe worst kind, to wit an elective one. "I commander-in-chief of all the armed forces, tion by an eight to one vote. John Rutledge, also from South Carolina, including the state militia. It transferred to Additional changes continued to curtail the added that he favored a single executive, "tho' the executive as well the authority to com­ president's war powers. The Committee of he was not for giving him the power of war mission all officers of the United States and Detail had granted the President control of and peace." James Wilson of Pennsylvania to appoint all officers "not otherwise provided the state militia, but on August 27 the Con­ observed simply: "Making peace and war are for by this constitution." Clearly the Com­ vention voted that the legislature must first generally determined by Writers on the Laws mittee of Detail intended that the president call the militia "into actual service of the of Nations to be legislative powers." James should have the direction of any war "once United States." The Articles of Confederation Madison of Virginia agreed with Wilson that declared or begun." At the same time, the had vested the power to issue letters of executive powers "do not include the Right committee vested in the legislature all author­ marque and reprisal, like all war powers, in of war & peace &c but the powers sh[ould] ity required to guarantee that the armed forces Congress. The Committee of Detail hesitated be confined and defined-if large we shall would be used only to secure the purposes to assign that power to either the executive have the Evils of elective Monarchies." The of the nation. It granted to Congress spe­ or the legislature, but on September 5 the Convention amended the resolution proposed cifically the power to make war, raise armies, Convention placed that power firmly in the by the Virginia Plan to limit the executive build and equip fleets, and enlist the aid of hands of Congress.2 power to the execution of the national laws the militia. For the president the committee and the appointment "to offices in cases not reserved no authority to determine the objects For the Committee of Detail, the treaty­ otherwise provided for." of war. making power was neither wholly legislative nor wholly executive. For that reason it Alexander Hamilton's plan of June 18 was On August 6 the Committee of Detail refused to add the authority to make treaties the first presented to the Constitutional Con­ submitted its report to the Convention. Dur­ to the list of powers granted to the legislative vention that addressed explicitly the question ing its final six weeks of debate the Con­ branch. It regarded such power, like the ofallocating power between the executive and vention reconsidered and modified certain authority to make war, as essentially a leg­ legislative branches on the two issues of clauses in the report, but found the distri­ islative power, but one not to be given to making war and negotiating treaties. For bution of powers over external affairs gen­ Congress as a whole. The treaty-making Hamilton, peace and war were not executive erally satisfactory. In distributing the war power, believed the committee, belonged prerogatives. To the Senate he would give powers, the Committee of Detail granted properly to the Senate because of its smaller the sole power to declare war, and to the Congress the power to "make war." With that size, its greater ability to maintain secrecy, chief executive the authority to direct a war the Convention agreed, but some members and its presumed invulnerability to hysteria "when authorized or begun." The president argued that the "direction of war when au­ and the demands of special interests. The would have "with the advice and approbation thorized or begun," as Hamilton had phrased Articles of Confederation had assigned to of the Senate the power of making all trea­ it, was an executive power. To assure the Congress the authority both to appoint am­ ties." Hamilton would grant to the executive president the power to conduct war, Madison bassadors to foreign countries and to receive the power to nominate ambassadors to for­ and Elbridge Gerry of Massachusetts moved ambassadors from abroad. The Committee eign countries, but to the Senate the power on August 17 that Congress have the power to approve. Hamilton offered no resolution to "declare war" rather than make war. When for a vote. Rufus King, also from Massachusetts, re­ minded the Convention that making war 2Ibid., II, p. 505. Throughout the following month no dele­ gate made any effort to alter the limited definition of executive power that the Con­ JEFFERSON MEETINGS ON THE CONSTITUTION vention had adopted on June 1. By late July Sponsored by the Virginia Jefferson Association (VJA) the Convention had hammered out com­ promises on many critical issues; the broad Alexandria - The Lyceum outlines of the new federal system were al­ May 9 (evening) & 10 ready clear. Still, the Convention had made Keynote Speaker: Linwood Holton no decisions relative to the conduct of foreign affairs. On July 26 it assigned to a Committee Charlottesville - The Rotunda of Detail, consisting offive members, the task May 9 (evening) & 10 of "reporting a Constitution conformably to Keynote Speaker: Shannon Jordan the proceedings" of the Convention. The Convention then adjourned for ten days to The Jefferson meetings bring together local citizen delegates to discuss, question, permit the committee to complete its assign­ and debate whether the U.S. Constitution is still safeguarding the ideals of justice, ment. freedom, and representation upon which it was founded. These nonpartisan events emphasize a balanced exploration of both sides of a given constitutional issue. . All interes~ed persons are encouraged to submit an application to participate In these meetings. To get an application, write immediately to:

1 Max Farrand, ed., The Records of the Federal Convention of /787 (New Haven: Yale University Press, 1911), I, pp. 64-65. Alexandria Meeting: VJA, 1007 King Street, Alexandria, VA 22314 Charlottesville Meeting: VJ A, 401 McIntire Road, Charlottesville, VA 22901 48 of Detail divided these two powers. Because between Congress and the Secretary for For­ consent of the Senate as an organized body, envoys sent abroad spoke for the nation, the eign Affairs under the Articles of Confed­ not for the advice of its individual members. committee vested the important power to eration. Gouverneur Morris of Philadelphia The American tradition as it had developed appoint ambassadors in the Senate; to the followed by questioning the Senate's exclusive under the Articles of Confederation had as­ executive it assigned the ceremonial function role in treaty-making. He offered an amend­ sumed that the legislature possessed the au­ of receiving ambassadors from foreign coun­ ment that read: "The Senate shall have the thority to determine the objectives in any tries. power to treat with foreign nations, but no treaty negotiation. Policy matters, at the Treaty shall be binding on the United States beginning no less than at the end, were to Thus the article in the draft constitution which is not ratified by a Law." This proposal reflect the collaboration ofthe legislature with detailing the powers ofthe Senate began: "The would have made the House of Represen­ the executive officers charged by Congress Senate of the United States shall have the tatives a partner in the approval of any treaty. to conduct the actual negotiation. power to make treaties, and to appoint Am­ bassadors, and Judges of the Supreme On August 31 the Convention referred the Madison, as a member of the Committee Court."The president did not even share these question of treaty-making to the so-called on Postponed Parts, was probably respon­ powers. The committee did include in its draft "grand" committee formed to deal with "such sible for the inclusion of the phrase "advice the following sentence: "The Executive Power parts of the Constitution as have been post­ and consent." Hamilton had sent Madison of the United States shall be vested in a single poned, and such parts of reports as have not a plan of government in which he dealt with person," the president. But that executive been acted on."The Committee on Postponed the role of the president in the following authority did not include the important pow­ Parts, in its effort to resolve a number of terms: ers to make war, make treaties, or appoint apparently unrelated issues, recommended a am~assadors~ these powers the committee major change in the treaty-making power. All treaties, conventions and agree­ assigned specifically to legislative bodies. When on August 29 the Convention dropped ments with foreign nations shall be Clearly the Committee of Detail was not the recommendation of the Committee of made by him, by and with the advice convinced, any more than the Convention Detail for a two-thirds vote on navigation and consent of the Senate. He shall itself, that national leaders would always acts, thus breaking the South's veto power have ... the nomination; and by and display wisdom in the conduct of the coun­ over United States commercial policy, south­ with the Consent of the Senate, the try's external affairs; it sought, therefore, to ern delegates argued that they deserved com­ appointment of all other officers to be maximize the constraints on the exercise of pensation elsewhere. The Committee on Post­ appointed under the authority of the the treaty-making and war-making powers. poned Parts responded by adopting a two­ United States, except such for whom thirds rule on treaty-making. The committee's different provision is made by this Delegates questioned the decision of the draft, presented on September 4, read as Constitution.3 Committee of Detail to grant the treaty­ follows: making and appointment powers exclusively Whether or not Hamilton's plan reached to the Senate by a simple majority vote. For Madison before the deliberations of the Com­ The President by and with the advice mittee on Postponed Parts, Madison had large-state delegates, that provision gave too and consent of the Senate, shall have much power over foreign affairs to the small available Hamilton's remarks of June 18 in power to make Treaties; and he shall which he declared that the executive shall states with their equal representation in the nominate and by and with the advice Senate. Southern delegates added a further "have with the advice and approbation of the and consent of the Senate shall appoint Senate the power of making all treaties." complication by insisting on a two-thirds vote ambassadors and other public Minis­ governing treaties, to protect the South's What Hamilton meant by advice and consent ters, Judges of the Supreme Court, and he clarified in The Federalist, No. 75: plantation interests against the commercial all other Officers of the U[nited] interests of the more numerous northern S[tates], whose appointments are not However proper or safe it may be in states. For some delegates the possible answer otherwise herein provided for. But no governments where the executive mag­ to the increasingly bitter conflicts of interest Treaty shall be made without the con­ istrate is an hereditary monarch, to between the large and small states and be­ sent of two-thirds of the members commit to him the entire power of tween the northern and southern states lay present. making treaties, it would be utterly in compelling the Senate to share the treaty­ unsafe and improper to entrust that making power with the executive. This provision excluded the House of Rep­ power to an elective magistrate of four During the debates of August 23 on treaty­ resentatives from the treaty-making process, years duration. ... The history of but it introduced four additions or alterations making, Edmund Randolph of Virginia ob­ human conduct does not warrant that of major importance. It assigned a role to served that no one liked the committee's exalted opinion of human virtue which the president, added the phrase "advice and decision to assign the power over treaties to would make it wise in a nation to consent of the Senate," provided a common a Senate majority. At the same time, it was commit interests of so delicate and procedure for all appointments, and granted apparent to the Convention that treaty-mak­ momentous a kind as those which the president the sole power to nominate ing entailed some purely executive functions. concern its intercourse with the rest of ambassadors and other public ministers. The Madison, in his own words, "observed that the world to the sole disposal of a new phraseology limited the Senate's role to the Senate represents the states alone, and the approval or rejection of the executive's that for this as well as other obvious reasons nominees. it was proper that the President should be an agent in Treaties." Later that day Madison Nowhere did the treaty clause give the favored an arrangement that would allow "the president any exclusive right to propose a J Alexander Hamilton. John Jay, and James Madison, The President & Senate to make Treaties." In large course of action in foreign affairs. Moreover, Federalist. ed. Edward Mead Earle ( ew York: The Modern meas' re Madison returned to the relationship the Convention called for the advice and Library. 1937). pp. 486-87. 49

magistrate, created and circumstanced, constitutional admonitions seriously. Still, it well. In supporting presidential policy, con­ as would be a president of the United is certain that the claims for executive primacy gressmen in large measure vote their convic­ States.4 in foreign affairs have never rested on the tions quite as often as their fears of public Constitution or on the special complexity of retribution. But whatever the motives of During the final debate over the treaty international affairs. Abraham Lincoln saw congressmen, it is essentially their willingness power, Madison moved to exempt treaties this clearly when in February 1848, near the to support executive decisions that gives ofpeace from the two-thirds rule because they end of the Mexican War, he wrote to his presidential power, in Lincoln's words, no should face less obstruction than other trea­ friend William H. Herndon: visible limits. With access to television at ties. The convention accepted Madison's mo­ prime time, with the power to control press tion temporarily. Madison then moved, as Allow the President to invade a neigh­ conferences, and with batteries of speech he recorded in his own words, "to authorize boring nation, whenever he shall deem writers, a president can make words accom­ a concurrence of two-thirds of the Senate to it necessary to repel an invasion, and plish almost impossible feats. With its enor­ make treaties of peace, without the concur­ you allow him to do so, whenever he mous resources the executive branch has the rence of the president." The President, Mad­ may choose to say he deems it nec­ power, in the absence of any historical con­ ison feared, would necessarily derive so much essary for such purpose-and you al­ sensus that might tell the president how to power and importance from a state of war low him to make war at pleasure. Study act, to dominate the public and congressional that he might be tempted, if so authorized, to see if you can fix any limit to his mind. In their book, Presidential Television, to forestall a treaty of peace. Pierce Butler power in this respect. ... If, to-day, Newton H. Minow, John Bartlow Martin, seconded Madison's motion "as a necessary he should choose to say he thinks it and Lee M. Mitchell insist that presidential securit a ainst ambitious & corrupt Pres­ necessary to invade Canada, to prevent television threatens to til the con titutional idents. " athaniel Gorham believed this re­ the British from invading us, how could balance of power in favor of the executive. striction on presidential authority unneces­ you stop him? You may say to him, Indeed, the ultimate limits on presidential sary inasmuch as the means for carrying on "I see no probability of the British power appear to be the president's own self­ a war would be in the hands ofthe legislature, invading us" but he will say to you restraint and the extent of his capacity to not the president. Congress, with the power "be silent; I see it, if you don't."5 control the public mind. of the purse, could always terminate an unwanted war. Accepting that argument, Gou­ In Vietnam the decisions of two presidents After 1969 it was Nixon's control of public verneur Morris now advocated the exception seemed to substantiate Lincoln's fears that opinion, not his control of the armed forces, of treaties of peace from the two-thirds rule. any commitment of forces to repel an attack that permitted him to defy his critics in If a majority of the Senate favored peace, regarded dangerous to the United States Congress and his spokesmen to trample on it would terminate any war merely by refusing would destroy all limits to presidential power. congressional committees at will. Congres­ to vote supplies. Morris believed, moreover, Lyndon Johnson and Richard Nixon, with­ sional attacks on the Vietnam War never that any peace treaty should have the con­ out formal congressional approval, ordered provoked a simple executive-congressional currence of the president. air and ground action of increasing magni­ confrontation. A congressional majority un­ tude and destructiveness. And to those who derwrote the war in Vietnam from 1961 to The convention voted down Madison's saw in North Vietnamese behavior no danger 1973 through its power of the purse; that war motion, eight states to three, as an unnec­ to the security of the United States, the always belonged to Congress as much as to essary infringement on the principle of joint presidents and their advisers indeed replied the president. They fought it together. ot executive-senatorial control of the treaty­ that the danger was clear to them. In con­ even Nixon's bombing of North Vietnam making process. The convention now recon­ fronting their critics in Congress and out, from early 1971 until the end of 1972 and sidered Madison's motion to exempt peace spokesmen for the two administrations his subsequent bombing of Cambodia be­ treaties from the two-thirds rule, adopted claimed superior knowledge, much of it kept longed to him alone. Congressional majorities earlier by a unanimous vote. After a last­ secret. This gave both presidents a sharp sustained these policies, backed by those minute flurry of proposals to modify the advantage over their detractors, enabling Americans outside Congress who supported treaty power, the Convention, on September them to ignore countering arguments and to the bombing or at least had no interest in 8, struck down Madison's motion on peace exploit the willingness of most Americans to voicing their disapproval. treaties. Again the decision of the Committee accept executive judgment as valid. Neither on Postponed Parts emerged triumphant. Johnson nor Nixon had the power to silence The central question, therefore, was not Congress or the press; yet their power to send the executive's limitless power over foreign THE SOURCE OF EXECUTIVE troops into combat seemed to have no visible affairs, as administration lawyers claimed, but POWER limits. why Congress refused to exert its far greater authority to limit executive action. Congress's However clear the intent of the Constitu­ The reason is clear. The essence of their power of the purse, as the makers observed, tional Convention, the limitations on exec­ power lay less in the Constitution or in their is far greater than the president's power as utive initiative in external affairs could not role as commander-in-chief than in their commander-in-chief of the armed forces. survive the creation of the new government. successful management of public and con­ When the majority of Congress after June The Constitution did not establish any proce­ gressional opinion. With public support the 1973 opposed presidential policy in Southeast dure whereby the president would seek or executive can make almost any demand on Asia, that policy ceased to exist. Yet nowhere receive the advice and consent of the Senate; Congress because the arguments that capture did congressional action infringe on the pres­ nor did President George Washington or his the public will capture much of Congress as ident's power as commander-in-chief. successors, as a practical matter, take the

5 Roy P. Basler, ed., The Collected Works of Abraham Lincoln Senator J. William Fulbright of Arkansas 4lbid. (New BrunswiCk, N.J.: Rutgers University Press, 1953), I, p. 451. saw more clearly than most why the White 50

House enjoyed almost unchallengeable con­ withhold from Congress any information, istration, that any such move would under­ trol of United States foreign policy. What documents, or witnesses belonging to the mine the negotiations in Paris. It remained sustained that control, he said, was the lin­ executive branch. The president himself made unclear that any confrontation with the pres­ gering mood of national insecurity and the clear his intention to carryon the war in ident could succeed. If the ceasefire negoti­ concomitant demand for victory, all under­ Southeast Asia, if necessary, with money ations failed, the critics in Congress would written after Korea by the perennial refrain appropriated for other purposes. A divided carry the responsibility. If the negotiations that any additional Communist gain would Congress had no power to challenge such succeeded, their repeated warnings that the lead to war and global disaster. That inse­ claims to executive power over the country's ceasefire would not result in a genuine set­ curity, sustained by war, posed for Fulbright external relations. The Democratic party, tlement would matter little, for any agreement a threat to the American system. "Neither acting as a unit in Congress, could have that provided for a return of all United States constitutional government nor democratic challenged the president's power. But as long prisoners and extricated the United States freedom," he declared in April 1971, "can as large numbers of Democrats refused to from the war would be overwhelmingly ac­ survive indefinitely in a country chronically oppose executive decisions, the president's ceptable to the American people. at war, as America has been for the last three rejection of the normal bipartisan techniques decades." Two years later the senator repeated were of little consequence except to his critics. On January 27, 1973, the Vietnam bellig­ this theme: erents signed the ceasefire agreement for Those who opposed the president assumed Indochina, which indeed provided for the One of the main reasons for the in­ that other procedures would have produced return of all American prisoners and the ability ofCongress to resume its proper other, more acceptable policies; that greater withdrawal of all United States military per- role is the existence of the war. When attention to other voices would have created sonnel in ixt d s. T pn~sl('1erlt you have a Congress and a country doubts regarding the wisdom of executive scarcely conceal his resentment toward those dominated by this war fever, the feeling decisions. But at issue was not the president's editors and congressmen who refused to that our men are on the front lines­ accountability or the counsel he received from praise his "peace with honor." But the critics It's an atmosphere almost impossible Congress or experts outside of government, could see little honor in the ten-year American to overcome.... We've been in a forty­ but the support his policies received from the involvement; nor would they agree with the year crisis. This is the fundamental public. If the president did not use the wide­ president that American withdrawal from the reason for the deterioration of Con­ ranging sources of opinion available to him, war was synonymous with peace. The war, gress. There's nothing you can do until the reason is clear. Almost without exception they predicted, would continue. you can get over the feeling that there that advice would have challenged him. Thus is impending disaster. ... the president scorned his critics in Congress After January 1973, Nixon's purpose in and the press; he did not scorn the public. To silence the majority under such circum­ Cambodia was the negotiation of a ceasefire His speeches on the war were not designed stances, an administration had merely to warn between the Lon Nol government in Phnom to convince his critics but to maintain control Congress that any interference with its con­ Penh and its enemies. By April the ceasefire of his silent majority among the public. If tainment policies-from bombing in South­ was still nonexistent, and the level of fighting the Nixon policies were justified, then the east Asia to requesting defense appropria­ around the Cambodian capital had increased. Vietnam War indeed represented a vast tri­ tions-would produce disaster. The president responded to the continuing umph for the American political system. If insurgency with another massive air offensive, It was the president's command of majority they were wrong, the failure lay in the vulner­ although administration officials admitted opinion and the resulting divisions in Con­ ability of the American people to presidential that bombing targets were scarce. By late gress that encouraged him, in defense of his formulation of policy. The imperial presi­ April the United States had carpet-bombed policies, to display an unprecedented arro­ dency did not rest on the Constitution, but the Cambodian countryside for over fifty gance toward an increasingly rebellious mi­ on the malleability of the public mind. The consecutive days. Early in May Secretary of nority during the winter of 1972-1973. James Constitution of the United States cannot State William P. Rogers, addressing the Sen­ Reston of the New York Times charged in protect the American people from erroneous ate Foreign Relations Committee, justified December 1972 that the president was "using assumptions and the pursuit of illusory goals the bombing by arguing that the Vietnam power without pity, and without consultation in the realm of external affairs. ceasefire agreement permitted bombing as and without any personal explanation." His long as the Communists, including Hanoi, policy had become, wrote Reston, a "war by refused to sign a special ceasefire for Cam­ tantrum." Two weeks later conservative col­ bodia. The secretary linked the North Viet­ umnist James J. Kilpatrick complained: THE SUPERIOR POWER OF namese presence in Cambodia with the per­ CONGRESS sistent weakness of the regime in Saigon. The President has failed (and we have What troubled some members of Congress to assume the failure is deliberate) to Twice during the 92nd Congress (1971-72) even more was Secretary of Defense Elliot make even the most minimal gestures the Senate passed amendments that would L. Richardson's assertion that the adminis­ ofpolitical accommodation to the Con­ have eliminated funds for the Vietnam War tration would continue the bombing whether gress. These are matters of grace, of and compelled the president to withdraw Congress authorized the expenditure or not. form, of politesse. Mr. Nixon has American forces. The House of Representa­ The president, he said, would reduce troop spurned them.... Relations with the tives refused to go along on the ground that levels in Europe, if necessary, to cover the press, always bad, have grown worse. such restrictions were an improper abridge­ cost of the Cambodian operation. ment of the president's authority to conduct When Congress sought information on foreign policy. During January 1973 House During May 1973 a Gallup Poll revealed foreign policy during the spring of 1973, Democrats, by a vote of 154 to 75, and Senate that almost 60 percent ofthe American people administration spokesmen laid claims to ex­ Democrats, by a vote of 36 to 12, resolved disapproved of the Cambodian bombing and ecutive privilege unprecedented in American to pass legislation that would terminate the that over 75 percent believed that the pres­ history. The president, said Attorney General Indochinese involvement. Still, they faced the ident should seek congressional approval be­ Richard G. Kleindienst, has the power to widespread notion, encouraged by the admin- fore he carried out any additional military 51 action in Southeast Asia. Clearly, the pres­ demonstrated the power of strong congres­ fears ofSoviet expansionism in Central Amer­ ident's policy in Cambodia was now doomed. sional majorities to dominate the country's ica, Africa, and elsewhere, has been permitted Convinced that the administration's war in external policies through their right to reject to venture into external affairs far beyond Cambodia had no constitutional support, appropriation requests and negate treaties. what his critics have regarded wise or prudent. Senate leaders, Republicans and Democrats Congress had the constitutional power, well By building extensive public and congres­ alike, now introduced measures to cut off within the intent of the makers, to terminate sional support, Reagan has managed to sus­ funds for any military action in Cambodia the Vietnam War at any moment during its tain a full spectrum of widely criticized policy not specifically approved by Congress. Re­ twelve-year career. For reasons of mind and objectives against his detractors in Congress publican leaders in the House such as Gerald politics it refused to exercise its controlling and the public. At the same time the lingering Ford of Michigan hoped to head off a vote influence. Vietnam syndrome, both inside and outside that would curtail the president's authority, the military forces, has discouraged any resort but in mid-May the House voted 219 to 188 Determined to limit the executive's war­ to arms. A majority tolerated, even ap­ to prevent the Pentagon from using funds making authority and prevent a recurrence plauded, the invasion of Grenada in October previously appropriated to carryon the bomb­ of the Vietnam experience, Congress, quite 1983; that the public would accept a greater ing. Then by a vote of 224 to 172 it forbade conscious of its vulnerability to presidential display of force is not apparent. In short, the use of any money in a $2.9 billion policy-making, passed a war powers measure Congress and the public seem willing to supplemental appropriation bill to be used over the president's veto in November 1973. accept Reagan's anti-Soviet adventurism as anywhere in the vicinity of Cambodia. Early What the successive war powers measures, long as it does not involve the United States in June the Senate attached a restrictive rider beginning with Senator Jacob Javits' first war In war. a .4 ·Hion Ierne al a ro riation powers bill in June 1970, sought to accom­ bill that, its backers believed, the president plish was the restoration of balance between Within the United States the struggle to dared not veto. The House passed the meas­ the president's control of the armed forces control external policy is as endless as the ure and then attached it to the even more and the right of Congress to declare war. The challenges of an ever-changing world. But vital appropriation bill for funding the op­ various bills attempted to delineate between aside from certain formal arrangements, such erations of government. those circumstances in which the president as the Senate's authority to approve treaties, could first act unilaterally and those that the Constitution cannot govern the exertion The president vetoed the first bill, declaring required the prior authority of Congress. of influence by either the executive or the that it would undo his work in obtaining an Under these measures even the use of armed legislative branches ofgovernment. This com­ honorable peace for Cambodia. "We are now forces under emergency conditions required pels Congress and the president to seek ad­ involved," he warned, "in concluding the last congressional approval within thirty (later vantages they require within the political element of that settlement. It would be noth­ ninety) days. If the president, after as little system. In any executive-congressional con­ ing short of tragic if this great accomplish­ as thirty days of fighting, could not convince test over a specific foreign policy issue, public ment, bought with the blood of so'" many a solid congressional majority that his de­ opinion, the ultimate source of power in a Asians and Americans, were to be undone cisions were valid, those decisions would democratic order, determines the winner. now by Congressional action." That argu­ already have laid the foundation for a major Successive administrations have won the ment had sustained the executive's control uprising within the American populace and struggle with Congress, often with ease, by of Congress and the public through all the would be foundering militarily or morally exploiting Cold War insecurities. vicissitudes of the Vietnam War. This time along the battle fronts. In practice the war it failed. Congress moved rapidly toward a powers measure would not limit presidential If Congress would strengthen its role, es­ showdown with the president. It began to power at all if in future crises the executive pecially when that role appears vital for the attach riders restricting the use of federal could establish its dominance over congres­ proper performance of the country's external funds in Cambodia to increasingly essential sional and public opinion as easily as it did relations, it has no choice but to discover financial legislation until the administration in the Vietnam War. some effective means to challenge the pres­ had either to capitulate or see the whole ident's control of the public mind. For that government grind to a halt. At the end, the Both Jimmy Carter and Ronald Reagan reason, the ultimate check on the unwise use House and Senate agreed to the president's have perpetuated the idea that the president of presidential power rests on a more sophis­ oposal of a cuto on August 15. possesses an inherent power over foreign ticated concept ofnational interest and a more affairs. Still, the experience of the past decade general awareness of the limits of national has demonstrated again that executive power will than the American people have often CONCLUSION rests on the capacity to control the public displayed in the past. Public understanding America's long war in Vietnam demon­ mind. Carter's failure to protect his policies is crucial to the design and conduct of suc­ strated that the executive branch, with all its from a burgeoning congressional and public cessful foreign relations. The critical issue in authority and access to the best information, criticism reflected the truth of the adage that the perennial struggle between the president can perform no better than the quality of presidential power benefits from perceptions and Congress for control of external policy mind that governs its decisions. If politics, of national insecurity. Before the Russian is less that of presidential or even congres­ history, and geography-and the ways in invasion of Afghanistan in December 1979, sional power than the quality of the policies which they apply to international affairs­ Carter sought to exorcise the Cold War by for which any governmental authority is are essential ingredients in the creation of refusing to dwell on the Soviet problem at employed, and the merit of the arguments successful foreign policies, in none of these all. His search for relaxation of tensions used to sustain those policies. areas did American leaders display any no­ undermined his leadership at home. Reagan, table proficiency. At the same time ~he war by maintaining a crisis mood, by stimulating 52

THE FREDERICKSBURG COURT DAYS FORUM Circuit Court of Fredericksburg Fredericksburg, Virginia Wednesday, May 7, 1986, 7:30 p.m. FOREIGN POLICY UNDER THE CONSTITUTION: SHOULD THE PRESIDENT'S POWERS BE CURBED?

Panelists

NORMAN A. GRAEBNER W. TAYLOR REVELEY III Randolph P. Compton Professor of History Managing Partner, Hunton & Williams University of Virginia Author of: War Powers ofthe President and Congress: Author of: America as a World Power Who Holds the Arrows and Olive Branch?

WTE JOHNSTON JAMES L. SUNDQUIST Professor of Government and Foreign Affairs Senior Fellow, Governmental Studies Program University of Virginia Brookings Institution Author of: "Reflecting on Wilson and Author of: The Decline and Resurgence ofCongress the Problems of Peace"

The Fredericksburg forum is the fifteenth in this series, directed by the Institute of Government and supported in part by a grant from the National Endowment for the Humanities. The public is invited to attend the forum, which will be videotaped for later broadcast on WCVE-TV, Richmond. Persons wanting to attend should reserve a seat by writing or calling collect Dr. Timothy O'Rourke, Institute of Government, 207 Minor Hall, University of Virginia, Charlottesville, VA 22903 (phone: 804/924-3396).

Persons or institutions may be placed on the mailing list to receive copies for the News Letter by sending a written request to News Letter, 207 Minor Hall, University of Virginia, Charlottesville, Virginia 22903. The complete mailing address should be printed or typed, and the Zip Code should be included.

UNIVERSITY OF VIRGINIA Entered as second-class matter Charlottesville, Virginia

NEWS LETTER

(lSSN 0042-0271) Executive Editor / James A. (Dolph) Norton Managing Editor I Sandra fl. Wiley Published by the Institute of Government, Uni­ versity of Virginia, Charlottesville, Virginia 22903. Published monthly with extra issues in January, . March, and September. The views and opinions expressed herein are those of the authors, and are not to be interpreted as representing the official position of the Institute or

the University. . . ,T, !i!;.' Entered as second-class matter)IJanuary 2, 1925, at the post office at Charlottesville~ Virginia, under the act of August 24, 1912. O,..i © 1986 by The Rector and Visitors ofthe University of Virginia. Printed by the University Printing Office.