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Presidents, Congress, and the Use of Force: A Critique of Presidential Powers
Jeremiah Kittredge
Lexington High School, Lexington, Massachusetts
Senior Division Historical Paper, National History Day 2003 Competition
| DEBATES OVER Congressional involvement in foreign military engagements trace back to America's founding. However, a basic point still remains unresolved: does Congress have the Constitutional right to constrain presidents from unilaterally exercising force abroad? If so, is directly adhering to the Constitution a government responsibility? In principle, the Constitution provides the Congress with enough power to make it a "major participant in foreign policy."1 Yet, the past forty years represent a dramatic departure from the mandates of the Constitution in that they have allowed an unmistakable trend toward executive domination of United States foreign affairs. Presidential military action without Congressional authorization subverts clearly specified Constitutional powers, undermines the notions of Constitutional and limited government, and encourages citizens to accept a government that acts without authorization, thereby posing an enormous threat to individual liberty. |
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The most comprehensive discussion of the power to make war occurred at the Constitutional Convention of 1787. "No group has ever thought more deeply about how a free people ought to be governed than the men who wrote the Constitution of the United States."2 The framers of the Constitution were "drawn to a formulation of governmental powers that promised to control human weakness by pitting men and institutions against each other."3 In appropriating such power, "Congress was given the preeminent position because it most nearly represented, even before universal suffrage, the people."4 The Congress received not only the powers allotted to it by the Constitution, but also the authority "to make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other powers vested by the Constitution in the government of the United States, or any Department or Office thereof."5 Although there was a fear of Congressional dominance, James Madison and the framers concluded that if Congress should be "without the substance of this 'necessary and proper clause,' the whole Constitution would be a dead letter."6 |
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In foreign policy, the Constitution envisions leadership as a partnership between the President and the Congress, but Congress is assigned the role of senior partner. Article II indicates that the President shares with the Senate the treaty-making power and the power to appoint ambassadors. Only two powers are assigned exclusively to the president. First, he is "commander in chief," but he acts in this capacity by and under Congress. Moreover, such a power does not include the ability to declare war, only to authorize it after a war has been declared. Second, he has the power to receive ambassadors, but the framers agreed that this was purely a ceremonial ability.7 Such a tremendous role was given to the Congress largely due to the fear of unbridled executive power. Alexander Hamilton wrote that
The history of human conduct does not warrant that exalted opinion of human nature which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be the President of the United States.8
This same fear of executive power fueled the creation of the simplest but most direct indication of Congressional control over foreign policy, the War Clause. Article I, section 8, paragraph 11 states that "The Congress shall have the power...to declare war."9 The war making power is specifically withheld from the president. James Wilson, an important architect of the Constitution, argues
This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a singly body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large. This declaration must be made with the concurrence of the House of Representatives; from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into war.10
Moreover, such a fact was upheld in several judicial decisions. In 1800, in Bas v. Tingy, the Supreme Court held that "it is for Congress alone to declare either a limited or general war."11 In 1863, the Prize cases presented the court its first opportunity to consider the power of the President to respond to sudden attacks. Justice Robert C. Grier, delivering the majority opinion, argued that although the President has the power to respond to sudden attacks, "Congress alone has the power to declare war."12 |
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Congressional authorization, then, remains a fundamental principle of the Constitution. Until the mid-twentieth century, with few exceptions, presidents have respected this right. The United States involvement in the two World Wars, for instance, was not undesirable since in both instances Congress authorized the President to commit troops to war. It is only in the last forty years that the Constitutional rights of Congress have been consistently ignored. |
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Following the overthrow of Vietnamese premier Ngo Dinh Diem and the assassination of President John F. Kennedy, the United States became increasingly engaged in the War in Vietnam. To combat the apparent North Vietnamese threat, new President Lyndon B. Johnson began the first of two major presidential usurpations of power by beginning to finance and carry out covert military operations against the North Vietnamese. Information about Johnson's military activism was withheld from Congress and the American people. Fearing a loss of popularity, President Johnson openly denied the existence of any covert operations in Vietnam.13 |
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The more dangerous infringement of power began in August, 1964, immediately following the Tonkin Gulf incident. At Tonkin Gulf, two American destroyers were attacked by North Vietnamese torpedo boats. In response, Johnson immediately sent United States planes on a large scale bombing raid in North Vietnam, and followed the attack by sending Congress the draft of a resolution to legitimize the raids as preexistent. Congress performed no independent investigation of the President's claims and passed the resolution on a 98-2 vote. The resolution placed Congress on record as declaring that "the United States is therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member of the Southeast Asia Collective Defense Treaty."14 Such powers were to expire only when "the President [had] determine[d] that peace and security were assured."15 In effect, the Congress handed the President a blank check to conduct a major war. The following exchange between Senators Brewster and Fulbright is illustrative of congressional acquiescence to presidential leadership:
BREWSTER: My Question is whether there is anything in the resolution which would authorize or recommend the landing of large American armies in Vietnam.
FULRBRIGHT: The language of the resolution would not prevent it. It would authorize whatever the Commander in Chief feels is necessary. It does not restrain the Executive from doing it. Whether or not it should be done is a matter of wisdom under the circumstances that may exist at that time.16
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Any reading of the Tonkin Gulf issue reveals the tendency on the part of members of Congress to assume that in military matters the president is more likely to be right than anyone else. Thus, "instead of checks and balances that allowed for shared power, as prescribed by the Constitution, Congress began to advocate non-partisan acquiescence to presidential decisions."17 Senator after senator had refuted past Vietnamese policy, but still supported a resolution allowing the President to do whatever he thought necessary. |
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Richard M. Nixon, as president, claimed that "as commander-in-chief he possessed sole authority over armed forces and could order them abroad without congressional approval."18 On April 29, 1969, without consulting Congress, Nixon placed twenty thousand American troops in Cambodia in an effort to covertly continue the war in Vietnam. Nixon also continued the secret air war against Laos, again without Congressional authorization.19 In response, discontented legislators charged him with usurping Congressional war authority by conducting a constitutionally unauthorized war. The Congress, in light of the Watergate scandal, began to protest Nixon's unauthorized use of force by passing legislation.20 |
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On November 7, 1973, Congress overrode a presidential veto and enacted the War Powers Act, a resolution that imposed strict limits on Presidential war-making abilities. The final version of the bill called for the "collective judgement of both Congress and the president before U.S. troops are sent into combat."21 The main article of the War Powers Act allowed the President to use armed force for up to 90 days without seeking Congressional approval. Though it was regarded as a limit on presidential power, it actually "sanctioned a scope of independent presidential power that would have astonished the framers of the Constitution."22 Thomas Eagleton, a senator and critic of presidential power asked the following questions on the senate floor to Senator Fulbright from Arkansas:
EAGLETON: Will the adoption of this resolution permit the bombing of Cambodia for the next 45 days?
FULBRIGHT: Until August 15th.
EAGLETON: Would it permit the bombing of Laos?
FULBRIGHT: It would not prevent it.
EAGLETON: The president can now exercise his power to bomb in Indochina for the next 45 days, is that correct? A power that will now be sanctioned by our actions?
FULBRIGHT: The president has the power to do a lot of things which I do not approve.
EAGLETON: He will exercise that power, and whether or not he exercises that power wisely, we know that within the next 45 days he will exercise a right to bomb Cambodia-a right given to him by the Congress of the United States.23
Thus, an act that attempted to restrict Presidential power in war making actually gave the President legal sanction to commit troops anywhere in the world, for whatever reason, for ninety days. |
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Subsequent presidents clearly abused this power. In particular, President Ronald Reagan was "a tough-minded Cold War warrior" whose presidency contained many unauthorized military engagements, the first in Lebanon.24 Reagan had agreed to participate in a peacekeeping mission in which the United States military assisted in the withdrawal of the Palestinian Liberation Organization (PLO) from Lebanon. After the country's civil war took many American lives, Reagan began a large scale war in Lebanon, conducting bombing raids from the carrier New Jersey. In the meantime, Congress, expressing their fierce disapproval of the operation, started the 90 day "clock" as per the War Powers Resolution. Unfortunately, the clock went beyond the 1984 election, making the clock restart at day one. Although the situation in Lebanon never led to declared war, the affair is an example of the futility of Congressional opposition to Presidential power. The meaning of the War Powers Doctrine had been reversed in that it allowed Reagan to legally conduct a war in Lebanon without informing Congress. Before the resolution, Presidents did not possess that right. |
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Secondly, although less of a war-powers issues than an issue of the "Power of the Purse," Reagan's actions in the Iran-Contra affair indicate the lack of Congressional control over modern presidents. Reagan not only directly disobeyed the Boland amendments (legislation restricting Contra funding) by privately funding the Iran-Contras, he illegally sold arms to Iran against the advice of Congress in order to continue the assistance, while also conducting covert military operations in Nicaragua.25 Such actions created a totally extra-Constitutional government by legitimizing any president's allocation of foreign funds without congressional authorization as long as the source was private.26 |
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As a result of these actions, Presidents in the modern area are slowly building a precedent for their successors to expand presidential powers, and resist Congressional influence. Presidential initiative in war-making has exploded in the 1990's with Presidents George Bush and William Clinton, a sure sign of the increasing ease with which they can commit troops abroad. The two presidents have unilaterally intervened in over half a dozen foreign conflicts in Kuwait, Iraq, Panama, Somalia, Haiti, and Bosnia. Most often the Congress was not informed and, even if a U.N. Resolution was obtained, it was usually authorized after troops were committed. Such a dramatic departure from early Constitutional ideals allows for the dangerous subversion of the Constitution in two major ways. |
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The first major violation of the Constitution concerns the Separation of Powers doctrine. Although the Constitution envisions the conduct of foreign policy as a cooperative effort, the current state of foreign affairs allows the President to subvert this doctrine and usurp constitutionally granted congressional authority. Most often their actions did not receive prior congressional approval, nor was there a formal declaration of war by the Congress. In every case, the decision to make war was initiated only by presidential actions; actions that, as discussed above, are blatantly unconstitutional. Although seemingly insignificant, each of these constitutional violations is dangerous since the Constitution exists solely as a "protection against usurpation of sovereign power by those in authority, from who they represent."27 Without such protection, "tyranny is the inevitable outcome;" i.e. the very fears of the framers will come true.28 Thus, "given both the relatively limited cost imposed by use of separation of powers and the great severity of the harm sought to be avoided, one should not demand a great likelihood that the feared harm would result."29 |
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The second major violation of the Constitution concerns the actual expansion of power that ultimately culminates in a legitimate, authoritarian system that encourages citizens to accept a government that acts without their authorization. In the modern era, a president's foreign policy initiatives occur without the explicit and well considered authorization of the American people's voice; their representatives. Instead, their actions legitimate a new vision of democracy in which the president, although still elected, acquires vast institutional powers for controlling public opinion and advancing personal interests. Most often, claims of "public support" are in fact a form of blatant manipulation (e.g. Johnson and Reagan, who openly deny their actions). As a result, the government that exists now is an elite-led, presidentially-dominated system in which there is no representation in government, and no public knowledge of United States foreign policy. Such a system poses a tremendous threat to individual liberty since it provides no check to the power of the executive and in no way represents a consensus of the people, the most important characteristic of a democracy. |
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It has been over two hundred years since the Constitution was created, and the characteristics of warfare and foreign policy have changed drastically since that time. It is argued that such changes make "quick action and a single authoritative voice necessary to deal with an increasingly complex, interdependent, and technologically linked world of almost instantaneous massive destruction."30 Despite such changes, though, the implications of extended United States war-making have created an even greater responsibility to adhere to the Constitutional demand for joint decision-making. Without it, there is no accountability in United States foreign policy, nor is there any representation for the citizens of the country. The President has no constitutional, nor moral right to act militarily without Congressional approval. As long as no headway is made in revealing the implications of Presidential disregard of this concept, future leaders will continue to circumvent Constitutional restrictions and endanger American liberty. |
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Notes
1. Richard E. Neustadt. . Presidential Power and the Modern Presidents. The Third Edition. (New York: The Free Press, 1990), 41.
2. David Gray Adler. "The Judiciary and Presidential Power in Foreign Affairs." (Idaho St. Law Review, 56:4. 1996.)
3. Adler, 2.
4. Adler, 1.
5. The Text of The Constitution. Found in: Louis Fisher, The Politics of Shared Power: Congress and the Executive. Third Edition. (Washington DC: Congressional Quarterly Press, 1993), Appendix A.
6. Adler, 4.
7. Fisher, 58.
8. Alexander Hamilton. The Federalist. (London: Penguin Books, 1999 ed.), No. 75.
9. Constitution, see Fisher.
10. Jonathan Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution. (2nd ed. 1836) Found in Adler and Gray, 81.
11. Bas v. Tingy, 4 U.S., 378 (1800). From Adler, 8.
12. Prize Cases, 67 U.S. 635, 668 (1863). From Adler, 8.
13. Eagleton, 54.
14. The Text of the Gulf of Tonkin Resolution found in: Thomas F. Eagleton. War and Presidential Power. (New York: Liveright Publishing, 1974), 101.
15. Eagleton, 101.
16. U.S. Congress, Senate, Committee on Foreign Relations, Concerning the Gulf of Tonkin Resolution. 88th Congress, 1964. In Eagleton 101.
17. David Gray Adler and Larry George. The Constitution and the Conduct of American Foreign Policy. (Kansas City: University Press of Kansas, 1996), 154.
18. Alexander DeConde. Presidential Machismo: Executive Authority, Military Intervention, and Foreign Relations. (Boston: Northeastern University Press, 2000), 98.
19. Deconde, 175.
20. DeConde, 102; Neustadt 72.
21. Louis Fisher, "Foreign Policy Powers of the President and Congress," The Annals of the American Academy of Polictial and Social Science (September 1988): 148.
22. Adler and George, 225.
23. Eagleton, 110.
24. DeConde, 240.
25. Lewis H. Laphram, "Iran-Contra and American Government." (Harpers Magazine) 18.
26. Deconde, 260.
27. David Redish and Elizabeth Cisar. "Separation of Powers and American Government." (Duke Law Journal, 449:91. 1991.) 449.
28. Redish and Cisar, 449.
29. Redish and Cisar, 449.
30. Leroy Way, Sec. G.
References
Primary Sources
Eagleton, Thomas F. War and Presidential Power. New York: Liveright Publishing, 1974.
Another one of my most useful sources. Eagleton was a Senator during Nixon and was one of the original drafters of the War Powers Resolution. His book contains a lot of inside analysis, including the Congressional Dialogue used in this paper that I found very poignant. It also had an excellent discussion of Johnson and the Gulf of Tonkin Resolution. I have considered it a primary source because Eagleton was a senator at the time of the War Powers Resolution.
Hamilton, Alexander. The Federalist. 1999 Edition. London: Penguin Books, 1999.
Hamilton's essays are invaluable for a paper like this because they provide an extremely inside, in depth account of the drafting and content of the Constitution. For this reason, they were extremely useful in the last two sections of this paper.
Lapham, Lewis H., "Iran-Contra and American Government." Harpers Magazine. May, 1987: 18.
This was an excellent first hand account of the effect of Iran-Contra on Separation of Powers and American Government. It had an excellent discussion of the President's infringement on individual rights.
Nixon, Richard. The Memoirs of Richard Nixon. New York: Warner Books, 1978.
This source provided good background information into the logic of Nixon during his reign as president. It also provided a lot of inside detail into the intentions of Nixon surround the War Powers Resolution. It also provided an important source of bipartisan research that, although it was not used in my paper, was useful to attempt to keep an open mind.
"President Johnson Asserts His War Aims." The Public Papers of the Presidents of the United States. Washington D.C., The National Archives and Records Serve, 1966. Found in, The American Spirit. Ed. David M. Kennedy. 10th ed. Boston: Houghton Mifflin, 2002.
This was an interesting primary source for the description of the events at Tonkin Gulf. It was not used directly in the paper, though it provided good backround information on the incident. It also provided an important source of bipartisan research that, although it was not used in my paper, was useful to attempt to keep an open mind.
"The President Defends His Incursion." Weekly Compilation of Presidential Documents. 6th Ed. Washington D.C.: The National Archives and Records Service, 1970. Found in, The American Spirit. Ed. David M. Kennedy. 10th ed. Boston: Houghton Mifflin, 2002.
This provided excellent backround information surrounding Nixon's decision to covertly bomb Cambodia. I found it especially useful in describing the way in which Nixon covertly was attempting to keep the War in Vietnam running.
Secondary Sources
Adler, David Gray. "The Judiciary and Presidential Power in Foreign Affairs." Idaho St. Law Review, 56:4. 1996.
David Adler is an incessant critic of Presidential Power, and this law review was especially helpful. It offered excellent insight to the impact of the Constitution on Foreign Affairs, and had some excellent primary source quotes.
Adler, David Gray and Larry George. The Constitution and the Conduct of American Foreign Policy. Kansas City: University Press of Kansas, 1996.
Another very good source for some primary source documents. It was also very important because it provided an interesting critique that was not historically based, but instead based on analysis of the intricacies of the Constitution.
Barton, John. "The Failure of Constitutional Controls Over War Powers in the Nuclear Age: The Argument for a Constitutional Amendment." Stanford Law Review, 1543:56.
This wasn't very useful to my paper because it did not contain much information about my empirical examples. However, it offered a good overview to my topic and provided some interesting background information.
DeConde, Alexander. Presidential Machismo: Executive Authority, Military Intervention, and Foreign Relations. Boston: Northeastern University Press, 2000.
This was one of the most useful sources I used. DeConde writes this book as a historical interpretation of the Modern Presidents based on their Foreign Policy. He offers excellent analysis on pertinent presidents, as well as providing some astonishing statements from top aides to each of the presidents. Most importantly, I relied on this source for most of my factual data about historical events.
Duffy, Michael and Dan Goodgame. Marching in Place: The Status Quo Presidency of George Bush. New York: Simon and Schuster, 1992.
This all purpose account of the Bush presidency was a source of good background information on his presidency, and the quote used in this paper was particularly useful.
Fisher, Louis. The Politics of Shared Power: Congress and the Executive. Third Edition. Washington DC: Congressional Quarterly Press, 1993.
Fisher's book was somewhat useful, its most important use was its appendix that included a draft of the Constitution (obviously a primary source document). It approached Presidential Power much like the Adler and Gray book, from a theoretical level, this was moderately useful for the last section.
Leroy Way, Almon. "How We Go to War: The President, the Congress, and Military Intervention." The Progressive Conservative, December 1999.
This was another extremely important source because it provided a very good historical account of modern Presidents foreign policy by comparing it to the supposed goals of the War Powers Resolution. Leroy Way concludes the resolution fails, and it was thus very important to my paper.
Neustadt, Richard E. Presidential Power and the Modern Presidents. The Third Edition. New York: The Free Press, 1990.
Neustadt is considered the most proficient scholar on issues of Presidential Power. It was useful to my paper because it provided an interesting historical analysis of the modern presidents.
Redish, Martin H. and Elizabeth Cisar. "Separation of Powers and American Government." Duke Law Journal, 441:91. 1991.
This law review offered me important information regarding the benefits of the Separation of Powers Doctrine. It was generic, but very easy to find and just what I was looking for.
Thurber, James A. Divided Democracy: Cooperation and Conflict Between the President and Congress. Washington DC: Congressional Quarterly Press, 1991.
This book contained one excellent essay detailing the formulation of the War Powers Resolution. I found that extremely useful for the last part of this paper.
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