THE PRESIDENT'S POWERS SHOULD THE POWER OF THE PRESIDENCY BE SIGNIFICANTLY CURTAILED? Colleue Debate Series AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH 1150 - 17th Street, N.W. • Washington, D.C. 20036 THE AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH, established in 1943, is a publicly supported, nonpartisan research and educational organization. Its purpose is to assist policy makers, scholars, businessmen, the press and the public by providing objective analysis of national and international issues. Views expressed in the institute's publications are those of the authors and do not necessarily reflect the views of the staff, advisory panels, officers or trustees of AEI. Institute publications take three major forms: 1. Legislative Analyses-balanced analyses of current proposals before the Congress, prepared with the help of specialists from the academic world and the fields of law and government. 2. Studies-in-depth studies and monographs about government programs and major national and international problems, written by independent scholars. 3. Rational Debates, Meetings, and Symposia-proceedings of debates, discussions, and conferences where eminent authorities with contrasting views discuss controversial issues. ADVISORY BOARD Paul W. McCracken, Chairman Edmund Ezra Day University Professor of Business Administration University of Michigan R.H. Coase George Lenczowski Professor of Economics Professor of Political Science University of Chicago University of California, Berkeley Milton Friedman Robert A. Nisbet Paul S. Russell Distinguished Service Albert Schweitzer Professor Professor of Economics of the Humanities University of Chicago Columbia University Gottfried Haberler James A. Robinson Resident Scholar President American Enterprise Institute University of West Florida C. Lowell Harriss Professor of Economics Columbia University EXECUTIVE COMMITTEE Herman J. Schmidt, Chairman.of the Board Richard J. Farrell William J. Baroody, President Dean Fite William G. McClintock, Treasurer SENIOR STAFF Thomas F. Johnson Gary L. Jones Director of Research Assistant to the President Joseph G. Butts for Administration Director of Legislative Analysis Edward J. Mitchell, Director Anne Brunsdale National Energy Project Director of Publications Robert B. Helms Robert J. Pranger Director of Health Policy Studies Director of Foreign and Defense Policy Studies COLLEGE DEBATE SERIES November 27, 1974 (ISBN 0-8447-1824-6) TABLE OF CONTENTS PREFACE ..... iii INTRODUCTION--THE SETTING 1 The Nature of Executive Power. 1 Sources of the Framers' Ideas Concerning the Executive..... .... ... 2 The Executive Article in the Constitution. 4 The Exercise of Executive Power: "Emergencies," 1788-1945 ........ 7 The Exercise of Executive Power, 1945-1974: The Rise of the "Imperial" Presidency? .13 I. DEFINITION OF TERMS ... 17 "Power of the Presidency". .18 The Definition of "Significantly Curtailed". 20 Ways to Curtail Executive Power. .22 Final Observations ..... .22 II. THE GROWTH OF PRESIDENTIAL POWER, 1940-1974. 25 Growth in the Domestic Powers of the President ... ....... .26 Development of Presidential Powers in Foreign Affairs. ....... .34 III. CURTAILING PRESIDENTIAL POWERS. 47 The President's Power as Chief Executive and Chief Administrator. .48 The President's Power as Legislator. .53 -i- The President as Commander-in-Chief.. .54 The President as an Organ of Foreign Policy .SS NOTES TO TEXT 63 BIBLIOGRAPHY. 73 -ii- PREFACE This special analysis explores the issues presented in the 1974-75 in­ tercollegiate debate proposition: "Resolved That the Power of the Presi­ dency Should Be Significantly Curtailed." It is published by the Ameri­ can Enterprise Institute in response to many requests from college de­ baters and coaches for background materials and references on the sub­ ject of the debate. The analysis was prepared by Chester B. Earle, professor of government, the American University; Valerie A. Earle, professor of government, Georgetown University; and Professor John A. Lynch, director of debate, St. Anselm's College, Manchester, New Hampshire. The authors have tried to assemble, organize, and present factual and authoritative material in such a way as to help debaters identify and explore the central issues raised by the national debate proposition. The Introduction presents information on the nature and sources of execu­ tive power--the setting for the discussion. Chapter I defines the terms of the debate proposition. The second chapter deals with the growth of presidential powers in domestic and foreign affairs, and the final chap­ ter explores the major issues involved in proposals to curtail such powers. The analysis is not intended to provide a complete manual, but to serve as a guide to research and to stimulate exploration of additional issues and sources. To this end, a bibliography provides references in addition to those quoted or cited in the footnotes. The analysis is a research tool and should not be construed as reflecting policy positions on the part of the staff, officers, advisory boards, or trustees of the American Enterprise Institute. -iii- INTRODUCTION--THE SETTING The Nature of Executive Power Almost from the adoption of the Constitution in 1788, presidential power has been the subject of recurring, often heated, debate. E. S. Corwin wrote of executive power that it is by nature residual power. In a government of delegated powers, and of separation of power among three coequal branches, the power of the executive branch is least sus­ ceptible to precise definition.I/ John Locke, writing in 1690 in defense of the Glorious Revolution of 1688 in England--a revolution which is said to have transferred sovereignty from king to Parliament--asserted none­ theless the necessity for broad executive discretion. In The Second Treatise of Government, Locke writes: Where the legislative and executive power are in distinct hands--as they are in all moderated Monarchies and well­ formed governments--there the good of the society requires that several things should be left to the discretion of him that has the executive power; for the legislators not being able to foresee and provide by laws for all that may be useful to the community, the executor of the laws, having the power in his hands, has by the common law of nature a right to make use of it for the good of the soci­ ety..• till the legislative can conveniently be assembled to provide for it. Many things there are which the law can by no means provide for; those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require; nay, it is fit that the laws them­ selves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz., that as much as may be, all the members of the soci­ ety are to be preserved; for since many accidents may hap­ pen wherein a strict and rigid observation of the laws may do harm--qr not to pull down an innocent man's house to stop the fire when it is burning--and a man may come some­ times within the reach of the law, which makes no distinc­ tion of persons, by an action that may deserve reward and pardon, it is fit the ruler should have a power in many cases to mitigate the sev�rity of the law and pardon some offenders; for the end of government being the preserva­ tion of all as much as may be, even the guilty are to be spared where it can prove no prejudice to the innocent. -1- This power to act according to discretion for the public good, without the prescription of the law and sometimes even against it, is that which is called prerogative; for since in some governments the lawmaking power is not al­ ways in being and is usually too numerous and so too slow for the dispatch requisite to execution, and because also it is impossible to foresee, and so by law to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm if they are exe­ cuted with an inflexible vigor on all occasions and upon all persons that may come in their way, therefore there is a latitude left to the executive power to do many things of choice which the laws do not prescribe. This power while employed for the benefit of the community and suitably to the trust and ends of the government, is undoubtedly prerogative, and never is questioned; for the people are very seldom or never scrupulous or nice in the point; they are far from examining prerogative while it is in any tolerable degree employed for the use it was meant, that is, for the good of the people, and not mani­ festly against it. But if there comes to be a question between the executive power and the people about a thing claimed as a prerogative, the tendency of the exercise of such prerogative to the good or hurt of the people will easily decide that question .... Prerogative is nothing but the power of doing public good without a rule.� Sources of the Framers' Ideas Concerning the Executive In America, in the period from the Declaration of Independence to the Constitutional Convention, there was growing concern on the part of many that the new nation could not survive without a stronger union than that provided under the Confederation, nor could it survive without a greater capacity on the part of all governments to act as needed, but with re­ straint and with regard for the interests of all. The problems besetting the national government under the Articles of Con­ federation are well known: the inability of the national government to raise adequate armies and its general incapacity for dealing effectively with other nations, which led to grave anxiety for the survival of the new nation; the growth of commercial rivalries between the states, with trade barriers multiplying so as to frustrate the development of commerce; the rising concern of the smaller states that by themselves they could not withstand the commercial aggressions of the larger states; and the -2- realization by states such as Georgia that they might by themselves be unable to mount a successful defense against the Indian tribes.