Monday, October 18, 2004
- MAJOR ISSUES IN AMERICAN HISTORY
Lecturer: E.F van de Bilt
Arthur M. Schlesinger, Jr: The Imperial Presidency (New York: Mariner Books, 2004, 589 pages -- first edition 1973.)
Reviewed by Jaime & William (Part I)
. In The Imperial Presidency Schlesinger aims to outline the shift in the constitutional balance between the Presidency and Congress. He will demonstrate that as the presidency increased its powers in foreign policy, particularly as the war making power became more and more fuzzy, presidents became emboldened and would eventually translate their new found power to domestic pursuits.
. As you will see, this shift was as much a matter of congressional abdication as of presidential usurpation, and the Imperial Presidency, in its most broad and powerful sense, will come to fruition during the reign of President Nixon. He begins his story, at the obvious starting point, with founding fathers.
. Founding fathers wanted more government centralization than the Articles of Confederation had allowed, but everyone feared the concentration of power in one man, thus, separation of powers. Schlesinger focuses on foreign affairs side of constitution debates because that is the realm in which the presidency will first begin to concentrate its powers.
Foreign Policy Duties: Congressional vs. Presidential
. Regulate commerce with foreign nations
. Power to make treaties
. Power to make appropriations
. Raise and maintain armed forces and make rules for their government and regulation
. Regulate naturalization and immigration
. Most importantly to DECLARE WAR
. Power to receive foreign envoys
. Appoint ambassadors with the advice and consent of the Senate
. Make treaties with the advice and consent of the Senate
. Article 2 of the constitution gave the President general executive power which in the 64th and 75th federalist papers, Madison and Hamilton described as unity, secrecy, decision, dispatch and superior sources of information. All very advantageous to the conduct of diplomacy.
Reasons Congress Cannot Conduct Foreign Policy Practically
. Congress can not easily stay abreast of the details of relations with foreign states.
. Congress rarely acts as a unified body. Thus, it would be difficult for them to conduct negotiations.
. Congress could not be relied on to preserve secrecy about matters where secrecy was indispensable.
. International law itself, by requiring in every nation a single point of responsible authority, confirmed Presidential primacy in foreign relations.
The War-Making Power
. No one wanted to hinder the President’s ability to respond to a surprise attack OR give him the sole power to initiate hostilities.
. Madison wrote a letter to Jefferson, saying "the constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war and most prone to it. It has accordingly with studied care, vested the question of war in the legislature."
"Make" vs. "Declare" War
. Drafts of the Constitution say Congress has the power to "make" war.
. Madison and Gerry propose to change the wording from "make" to "declare" hoping to make it more specific.
. They did this so that the power to "make" war, such as repelling sudden attacks, still lies in the hands of the President.
Emergencies
. Emergencies were described by John Locke in his Second Treatise on Government.
. When the President deems a situation an emergency, he can initiate extra-legal or even illegal action and he is then either vindicated or condemned by the people and Congress.
. This emergency clause was not explicitly written, because of its flexibility, but in notes and letters of the Founding Fathers, it is evident that they intended to leave this loophole for the President.
First Foreign Policy Dilemma
. President George Washington recognized the revolutionary government of France, thus giving it legitimacy.
. Members of Congress who were opposed to Presidential power, also happened to be in favor of the revolutionary government in France
. Therefore, they were so glad for the result that they were willing to ignore the question of whether or not this decision fell within Washington’s jurisdiction
Another Dilemma
. Washington declared America neutral in a war between Britain and France.
. Anti-centralists didn’t like this action, because it was a unilateral action of the President.
. Madison says that the President cannot make declarations about war.
. Hypothetical Scenario: What if Congress had declared war… Where Congress declares war and the President declares neutrality, this serves to both confuse and render the US illegitimate in the international system.
. But Hamilton reminds us that foreign policy is executive in nature… He said that Washington’s declaration was based on treaty obligations, and if congress had declared war, Washington would have complied with congresses wishes.
Centralists v. Anti-Centralists: On War-Making Power
. Congress' power to declare war is rigorously limited because they should consult the president who has a real hand in foreign policy (Centralists - Hamilton.)
. Congress has spacious power that is not to be abridged by prior declarations of the President (Anti-Centralists -- Madison.)
. Schlesinger argues that that Madison should have provided procedures of consultation
Louisiana Purchase
. Even though congress was fully involved he felt that congress was his accomplice in an action that was not explicitly allowed by the constitution. (Louisiana Purchase was made without an amendment)
. It also demonstrates that when Congress agrees with actions of the President, even when they are not explicitly legal, he is even more powerful.
Monroe Doctrine
. The Monroe Doctrine initially called for an end to European intervention in the Americas, but it was later extended to justify U.S. imperialism in the Western Hemisphere
. Monroe Doctrine makes the imperial Presidency possible.
. Monroe Doctrine allowed the President to take foreign policy by the reigns
Schlesinger Point
. The restraint of these early Presidents was based on the fact that they were babying their invention. Like taking care of a child, they had to be very careful with their young nation. They weren't afraid of impeachment… they just wanted to make it work.
. John Tyler wanted to annex Texas, but Texas was still trying to liberate itself from Mexico.
. In 1844 he orders forces to the Gulf and Southwestern border of Texas, secretly relaying to the Texans that if Mexico tried to attack them, the US would defend Texas as long as annexation was underway.
. Tyler submitted the treaty to the Senate for ratification. Unfortunately, the Senate found out about the deployment of the troops and said no.
. Tyler tries majority vote in the House and Senate combined (joint resolution, or concurrent resolution). This was unprecedented, and not explicitly included in the design of the Constitution.
. First new weapon for the executive… Presidential control of diplomacy and troop deployment allow for loopholes in Congressional war-making power.
Another Dilemma
. Polk sends units into disputed land between Texas and Mexico and, as expected, they were attacked. Thus Congress HAD to declare war, because a state of war existed regardless of their ratification.
Information Control
. Early, Jefferson and Monroe, when asked for documents, were asked only for what they "may deem compatible with the public interest."
. Under the Jackson administration, this power to withhold information becomes more specified.
- Confidentiality of his exchanges with his advisors
- Defense against Congressional harassment (Unreasonable demands for information)
- Protection of active investigation and litigation (confidential informants, innocent persons)
- Protection of foreign intelligence operations
. Still, if Congress has grounds for impeachment, the President must hand over any and all information requested to protect this method of last resort.
Shifts in the War Making Power
. The war making power drained from congress through two veins, both which lead to the Presidency.
. It becomes so that Congress was not involved with the war making process if A) a threat seemed too trivial to require Congressional consent, and B) a threat seems too big and pressing to allow for Congressional consent.
. Gradually it becomes very evident that Presidents could contrive circumstances where Congress would have little option not to declare war. Through diplomacy a President could give rise to a threat and choose to deal with it preemptively for the purposes of defense.
Trivial Threat Example
. Presidents assert that military action on non-sovereign entities (rebels, Indians, pirates, etc.) as well as rescue operations of American citizens endangered by the breakdown of order abroad, where additional Congressional appropriations are not necessary, "did not rise to the dignity of Congressional consent."
The Great Threat
. Lincoln's use of power during the Civil War was totally outside the lines of the Constitution.
. Lincoln ignored one law and Constitutional provision after another.
- He assembled the militia
- Enlarged the army and the navy beyond their authorized strength
- Called out volunteers for three years’ service
- Spent public money without Congressional appropriation
- Suspended Habeas Corpus
- Arrested people ‘represented’ as involved in ‘disloyal’ practices
- Instituted a Naval blockade of the Confederacy
The Great Threat (continued)
. All of these were measures which, Lincoln later told Congress, "whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity; trusting then as now that Congress would readily ratify them."
. Lockean principles at work. "Yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb." (Lincoln)
. If the execution of the whole of the laws should require the violation of a single law, "are all the laws but one to go unexecuted and the government itself go to pieces, lest that one be violated?" (Lincoln)
The Supreme Court Disagrees
. The Supreme Court Case ex parte Milligan in 1866, explicitly dismissed the Locke-Jefferson-Lincoln idea that necessity might be higher than the Constitution.
. Almost reversing Lincoln's analogy about giving a limb to save a life, the Court said, "a country preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preserving."
Executive Agreements
. The Executive Agreement is essentially a treaty made by the President, that doesn’t require Senatorial approval.
. Congress historically chose to overlook this usurpation of power.
. Three types of Executive Agreement developed:
- Those made pursuant to existing treaties
- Those that had prior, or subsequent, legislative authorization
- Those made by Presidents in areas where they possessed Constitutional authority to act without consent of Congress (recognition of foreign governments and settling foreign claims, arranging of cease-fires or armistice agreements, and "what were not quite agreements but rather unilateral commitments on the order of the Monroe Doctrine")
. The rise of the executive agreement was accompanied by new Presidential exuberance, in the commitment of armed force to combat.
President Wilson
. Wilson has a greater respect for the utility of Congress.
. "No doubt I could do what is necessary in the circumstances to enforce respect for our government without recourse to the Congress and yet not exceed my Constitutional powers as President, but I do not wish to act in a matter of so grave consequence except in close conference and cooperation with both Senate and House." (Wilson, after the bloodshed at Tampico)
FDR is Restrained…
. Roosevelt built his New Deal Government on the basis of authority directly granted by Congress.
. After WWI, Roosevelt wanted the power to place an embargo on arms shipments to the aggressor nations.
. The House passes the bill, but the Senate contends that it could lead the United States into war and fails to pass it.
. A revised version of the bill was passed by the Senate, placing arms embargos on all nations involved in conflict.
FDR Resurgent
. "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." (Justice Sutherland)
. International compacts do not always have to be treaties, thus bypassing the Senate. Sutherland says that an executive agreement is legal in power and not clearly limited in applicability.
. "That a treaty was something they had to send to the Senate to get approval by a 2/3 vote. An executive agreement was something they did not have to send to the Senate."
. These two Court cases combined REALLY increase Presidential power.
Lend-Lease Act
. Americans lend battleships to the UK for use against German aggression, after repeated requests from Churchill.
. Roosevelt gets concerned about the security of the route that the ships were traveling to Britain because there were German ships in the Atlantic.
. He deploys troops to Greenland and Iceland, without Congressional approval, to protect the ships.
. In 1941 there is a change in the way that Roosevelt defines his role as Commander in Chief. His actions that accompanied the Lend-Lease act demonstrate his new way of thinking.
. What had been the aim, to seek Congressional collaboration, shifts to what is now, in a sense, leading Congress along.
. The new FDR is Lockean… He believes that the US is in a state of emergency and he must assert his Presidential power to protect it. Still, he tries to include Congress as much as possible.
. Schlesinger writes, "Where independent power exercised in domestic affairs did not necessarily produce equivalent power in foreign affairs, as the case of Roosevelt in the 1930s had shown, independent power exercised in foreign affairs was very likely to strengthen and embolden the Presidency at home."
. "Next to the Civil War, the Second World War was the greatest crisis in American history. Powers thus claimed in a war for survival on issues on which Congress and public opinion supported the President provided only strained and meager precedents for powers claimed without equivalent crisis or consensus. Nor did Roosevelt suggest that such powers were part of the routine equipment of the Presidency."
Korean War
. 24 June 1950: North Korea invades South Korea
. 25 June 1950: UN Security Council calls for North Korean withdrawal
Night of 25 June 1950: Truman commits troops
. 27 June 1950: Congress and the nation are notified of his decision
. 27 June 1950: UN Security Council passed a second resolution calling for military measures.
Korean War (continued). Acheson steps in…
. Secretary of State Acheson; formerly a law clerk for a Justice of the Supreme Court
. Revered by Truman as having a great understanding of Constitutional law
. 3 July 1950: Acheson recommends that Truman not request a resolution by Congress, but rather rely on his Constitutional powers as President and Commander in Chief. Truman, not wanting to squander the power of his office, accepted Acheson’s recommendation.
. The State Department argument was that "the President, as Commander in Chief of the Armed Forces of the United States has full control over the use thereof," that there was a "traditional power of the President to use the armed forces of the Untied States without consulting Congress," and that this had often been done in "the broad interests of American foreign policy."
Lecturer: E.F van de Bilt
Arthur M. Schlesinger, Jr: The Imperial Presidency (New York: Mariner Books, 2004, 589 pages -- first edition 1973.)
Reviewed by Jaime & William (Part I)
. In The Imperial Presidency Schlesinger aims to outline the shift in the constitutional balance between the Presidency and Congress. He will demonstrate that as the presidency increased its powers in foreign policy, particularly as the war making power became more and more fuzzy, presidents became emboldened and would eventually translate their new found power to domestic pursuits.
. As you will see, this shift was as much a matter of congressional abdication as of presidential usurpation, and the Imperial Presidency, in its most broad and powerful sense, will come to fruition during the reign of President Nixon. He begins his story, at the obvious starting point, with founding fathers.
. Founding fathers wanted more government centralization than the Articles of Confederation had allowed, but everyone feared the concentration of power in one man, thus, separation of powers. Schlesinger focuses on foreign affairs side of constitution debates because that is the realm in which the presidency will first begin to concentrate its powers.
Foreign Policy Duties: Congressional vs. Presidential
. Regulate commerce with foreign nations
. Power to make treaties
. Power to make appropriations
. Raise and maintain armed forces and make rules for their government and regulation
. Regulate naturalization and immigration
. Most importantly to DECLARE WAR
. Power to receive foreign envoys
. Appoint ambassadors with the advice and consent of the Senate
. Make treaties with the advice and consent of the Senate
. Article 2 of the constitution gave the President general executive power which in the 64th and 75th federalist papers, Madison and Hamilton described as unity, secrecy, decision, dispatch and superior sources of information. All very advantageous to the conduct of diplomacy.
Reasons Congress Cannot Conduct Foreign Policy Practically
. Congress can not easily stay abreast of the details of relations with foreign states.
. Congress rarely acts as a unified body. Thus, it would be difficult for them to conduct negotiations.
. Congress could not be relied on to preserve secrecy about matters where secrecy was indispensable.
. International law itself, by requiring in every nation a single point of responsible authority, confirmed Presidential primacy in foreign relations.
The War-Making Power
. No one wanted to hinder the President’s ability to respond to a surprise attack OR give him the sole power to initiate hostilities.
. Madison wrote a letter to Jefferson, saying "the constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war and most prone to it. It has accordingly with studied care, vested the question of war in the legislature."
"Make" vs. "Declare" War
. Drafts of the Constitution say Congress has the power to "make" war.
. Madison and Gerry propose to change the wording from "make" to "declare" hoping to make it more specific.
. They did this so that the power to "make" war, such as repelling sudden attacks, still lies in the hands of the President.
Emergencies
. Emergencies were described by John Locke in his Second Treatise on Government.
. When the President deems a situation an emergency, he can initiate extra-legal or even illegal action and he is then either vindicated or condemned by the people and Congress.
. This emergency clause was not explicitly written, because of its flexibility, but in notes and letters of the Founding Fathers, it is evident that they intended to leave this loophole for the President.
First Foreign Policy Dilemma
. President George Washington recognized the revolutionary government of France, thus giving it legitimacy.
. Members of Congress who were opposed to Presidential power, also happened to be in favor of the revolutionary government in France
. Therefore, they were so glad for the result that they were willing to ignore the question of whether or not this decision fell within Washington’s jurisdiction
Another Dilemma
. Washington declared America neutral in a war between Britain and France.
. Anti-centralists didn’t like this action, because it was a unilateral action of the President.
. Madison says that the President cannot make declarations about war.
. Hypothetical Scenario: What if Congress had declared war… Where Congress declares war and the President declares neutrality, this serves to both confuse and render the US illegitimate in the international system.
. But Hamilton reminds us that foreign policy is executive in nature… He said that Washington’s declaration was based on treaty obligations, and if congress had declared war, Washington would have complied with congresses wishes.
Centralists v. Anti-Centralists: On War-Making Power
. Congress' power to declare war is rigorously limited because they should consult the president who has a real hand in foreign policy (Centralists - Hamilton.)
. Congress has spacious power that is not to be abridged by prior declarations of the President (Anti-Centralists -- Madison.)
. Schlesinger argues that that Madison should have provided procedures of consultation
Louisiana Purchase
. Even though congress was fully involved he felt that congress was his accomplice in an action that was not explicitly allowed by the constitution. (Louisiana Purchase was made without an amendment)
. It also demonstrates that when Congress agrees with actions of the President, even when they are not explicitly legal, he is even more powerful.
Monroe Doctrine
. The Monroe Doctrine initially called for an end to European intervention in the Americas, but it was later extended to justify U.S. imperialism in the Western Hemisphere
. Monroe Doctrine makes the imperial Presidency possible.
. Monroe Doctrine allowed the President to take foreign policy by the reigns
Schlesinger Point
. The restraint of these early Presidents was based on the fact that they were babying their invention. Like taking care of a child, they had to be very careful with their young nation. They weren't afraid of impeachment… they just wanted to make it work.
. John Tyler wanted to annex Texas, but Texas was still trying to liberate itself from Mexico.
. In 1844 he orders forces to the Gulf and Southwestern border of Texas, secretly relaying to the Texans that if Mexico tried to attack them, the US would defend Texas as long as annexation was underway.
. Tyler submitted the treaty to the Senate for ratification. Unfortunately, the Senate found out about the deployment of the troops and said no.
. Tyler tries majority vote in the House and Senate combined (joint resolution, or concurrent resolution). This was unprecedented, and not explicitly included in the design of the Constitution.
. First new weapon for the executive… Presidential control of diplomacy and troop deployment allow for loopholes in Congressional war-making power.
Another Dilemma
. Polk sends units into disputed land between Texas and Mexico and, as expected, they were attacked. Thus Congress HAD to declare war, because a state of war existed regardless of their ratification.
Information Control
. Early, Jefferson and Monroe, when asked for documents, were asked only for what they "may deem compatible with the public interest."
. Under the Jackson administration, this power to withhold information becomes more specified.
- Confidentiality of his exchanges with his advisors
- Defense against Congressional harassment (Unreasonable demands for information)
- Protection of active investigation and litigation (confidential informants, innocent persons)
- Protection of foreign intelligence operations
. Still, if Congress has grounds for impeachment, the President must hand over any and all information requested to protect this method of last resort.
Shifts in the War Making Power
. The war making power drained from congress through two veins, both which lead to the Presidency.
. It becomes so that Congress was not involved with the war making process if A) a threat seemed too trivial to require Congressional consent, and B) a threat seems too big and pressing to allow for Congressional consent.
. Gradually it becomes very evident that Presidents could contrive circumstances where Congress would have little option not to declare war. Through diplomacy a President could give rise to a threat and choose to deal with it preemptively for the purposes of defense.
Trivial Threat Example
. Presidents assert that military action on non-sovereign entities (rebels, Indians, pirates, etc.) as well as rescue operations of American citizens endangered by the breakdown of order abroad, where additional Congressional appropriations are not necessary, "did not rise to the dignity of Congressional consent."
The Great Threat
. Lincoln's use of power during the Civil War was totally outside the lines of the Constitution.
. Lincoln ignored one law and Constitutional provision after another.
- He assembled the militia
- Enlarged the army and the navy beyond their authorized strength
- Called out volunteers for three years’ service
- Spent public money without Congressional appropriation
- Suspended Habeas Corpus
- Arrested people ‘represented’ as involved in ‘disloyal’ practices
- Instituted a Naval blockade of the Confederacy
The Great Threat (continued)
. All of these were measures which, Lincoln later told Congress, "whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity; trusting then as now that Congress would readily ratify them."
. Lockean principles at work. "Yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb." (Lincoln)
. If the execution of the whole of the laws should require the violation of a single law, "are all the laws but one to go unexecuted and the government itself go to pieces, lest that one be violated?" (Lincoln)
The Supreme Court Disagrees
. The Supreme Court Case ex parte Milligan in 1866, explicitly dismissed the Locke-Jefferson-Lincoln idea that necessity might be higher than the Constitution.
. Almost reversing Lincoln's analogy about giving a limb to save a life, the Court said, "a country preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preserving."
Executive Agreements
. The Executive Agreement is essentially a treaty made by the President, that doesn’t require Senatorial approval.
. Congress historically chose to overlook this usurpation of power.
. Three types of Executive Agreement developed:
- Those made pursuant to existing treaties
- Those that had prior, or subsequent, legislative authorization
- Those made by Presidents in areas where they possessed Constitutional authority to act without consent of Congress (recognition of foreign governments and settling foreign claims, arranging of cease-fires or armistice agreements, and "what were not quite agreements but rather unilateral commitments on the order of the Monroe Doctrine")
. The rise of the executive agreement was accompanied by new Presidential exuberance, in the commitment of armed force to combat.
President Wilson
. Wilson has a greater respect for the utility of Congress.
. "No doubt I could do what is necessary in the circumstances to enforce respect for our government without recourse to the Congress and yet not exceed my Constitutional powers as President, but I do not wish to act in a matter of so grave consequence except in close conference and cooperation with both Senate and House." (Wilson, after the bloodshed at Tampico)
FDR is Restrained…
. Roosevelt built his New Deal Government on the basis of authority directly granted by Congress.
. After WWI, Roosevelt wanted the power to place an embargo on arms shipments to the aggressor nations.
. The House passes the bill, but the Senate contends that it could lead the United States into war and fails to pass it.
. A revised version of the bill was passed by the Senate, placing arms embargos on all nations involved in conflict.
FDR Resurgent
. "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." (Justice Sutherland)
. International compacts do not always have to be treaties, thus bypassing the Senate. Sutherland says that an executive agreement is legal in power and not clearly limited in applicability.
. "That a treaty was something they had to send to the Senate to get approval by a 2/3 vote. An executive agreement was something they did not have to send to the Senate."
. These two Court cases combined REALLY increase Presidential power.
Lend-Lease Act
. Americans lend battleships to the UK for use against German aggression, after repeated requests from Churchill.
. Roosevelt gets concerned about the security of the route that the ships were traveling to Britain because there were German ships in the Atlantic.
. He deploys troops to Greenland and Iceland, without Congressional approval, to protect the ships.
. In 1941 there is a change in the way that Roosevelt defines his role as Commander in Chief. His actions that accompanied the Lend-Lease act demonstrate his new way of thinking.
. What had been the aim, to seek Congressional collaboration, shifts to what is now, in a sense, leading Congress along.
. The new FDR is Lockean… He believes that the US is in a state of emergency and he must assert his Presidential power to protect it. Still, he tries to include Congress as much as possible.
. Schlesinger writes, "Where independent power exercised in domestic affairs did not necessarily produce equivalent power in foreign affairs, as the case of Roosevelt in the 1930s had shown, independent power exercised in foreign affairs was very likely to strengthen and embolden the Presidency at home."
. "Next to the Civil War, the Second World War was the greatest crisis in American history. Powers thus claimed in a war for survival on issues on which Congress and public opinion supported the President provided only strained and meager precedents for powers claimed without equivalent crisis or consensus. Nor did Roosevelt suggest that such powers were part of the routine equipment of the Presidency."
Korean War
. 24 June 1950: North Korea invades South Korea
. 25 June 1950: UN Security Council calls for North Korean withdrawal
Night of 25 June 1950: Truman commits troops
. 27 June 1950: Congress and the nation are notified of his decision
. 27 June 1950: UN Security Council passed a second resolution calling for military measures.
Korean War (continued). Acheson steps in…
. Secretary of State Acheson; formerly a law clerk for a Justice of the Supreme Court
. Revered by Truman as having a great understanding of Constitutional law
. 3 July 1950: Acheson recommends that Truman not request a resolution by Congress, but rather rely on his Constitutional powers as President and Commander in Chief. Truman, not wanting to squander the power of his office, accepted Acheson’s recommendation.
. The State Department argument was that "the President, as Commander in Chief of the Armed Forces of the United States has full control over the use thereof," that there was a "traditional power of the President to use the armed forces of the Untied States without consulting Congress," and that this had often been done in "the broad interests of American foreign policy."
# posted by Agustin @ 2:44 PM 
