Presidential Power




Alexander DeConde

From the founding of the United States to the present, concerned citizens have debated the breadth of presidential power in foreign affairs. The Founders, from their reading of European history and their experience with the English Crown, feared extensive executive authority. Believing that broad control over the military over the shaping of relations with foreign nations and over the making of war paved the way to tyranny, in these matters they placed explicit constitutional curbs on the executive. As the nation grew, these restraints led often to tension between the president and Congress. Regardless, except in a few instances, the authority of the executive expanded along with the growth of the nation's wealth and influence in the world.

The reasons why the executive prevailed and in the twentieth century presidential wars became virtually standard procedure are complex. Some scholars maintain the presidents could use massive force on their own because Congress abdicated its constitutional authority. Others saw as a cause the rise of the United States to the status of a world power, an imperial power, and a superpower. Many perceived the executive's dominance in war as a logical consequence of the corrupting influence of vast power. Still others saw that power as politically and personally based. They maintained that presidents catered to popular sentiment because, often in the guise of patriotism, strong, violent muscle-flexing against foreign foes was rewarded at the ballot box.

CONSTITUTIONAL SOURCES

Writing in the 1830s, the French political theorist Alexis de Toque ville described the American president as possessing, especially in foreign relations, "almost royal prerogatives." More than a century later, Harry S. Truman claimed the presidency had "become the greatest and most important office in the history of the world." Into the twenty-first century, the media and scholarly treatises repeated this concept so often it became commonplace.

Ironically, leaders of the generation that fought the revolutionary war had a deep distrust of wide-ranging executive power. When they drafted the nation's first constitution, the Articles of Confederation and Perpetual Union, they omitted a permanent executive office. They feared concentrating immense power in any one person because they regarded executive authority the natural enemy of liberty and a potential repository for military tyranny. So they established a single legislature that chose a member as president. He could not serve more than one year in any three-year congressional term and had no special authority in the conduct of foreign affairs.

After the United States won independence, political leaders such as John Jay, George Washington, Alexander Hamilton, and James Madison perceived the Articles as inadequate, particularly in the making of foreign policy. They desired a permanent president with sufficient authority to carry out a unified policy toward the rest of the world. With this objective, they sought to amend the Articles in a manner that would provide for a stronger central government. They persuaded Congress to authorize a convention for that purpose. After delegates from seven states met on 25 May 1787 in Philadelphia, they decided to get rid of the Articles of Confederation and frame a new constitution.

The debate over the nature of the presidency consumed more time than did any other major problem before the convention. Framers supposedly influenced by an eighteenth-century doctrine of an inherent executive prerogative—advanced by political thinkers such as John Locke—desired "a vigorous Executive." Others pointed out that the people opposed anything resembling an elective monarchy. After much discussion, the Founders created a presidential office with specific constraints as well as considerable power. They separated it from the legislative and judicial branches with a system of checks and balances designed to prevent the president from becoming a tyrant.

In keeping with this objective, the framers placed more curbs on the president's power in domestic affairs than in foreign relations. They also denied him the most vital of monarchical powers, that of initiating war. Envisaging him as the agent of Congress, they vested the war power in the legislature. They conferred on the president the authority, with the approval of the Senate, to appoint ambassadors and other emissaries and to receive similar diplomats from other countries. With the advice and consent of the Senate, given in a two-thirds vote, only he could make and negotiate treaties.

The new constitution also stated that the "President shall be Commander in Chief of the Army and Navy…and of the Militia of the several States when called into the actual Service of the United States." This title did not give him authority to declare or instigate war. In The Federalist No. 69, Hamilton assumed, therefore, that the president's role as commander in chief would amount to nothing more than the supreme command and direction of the military and naval forces. The real power, as he perceived it, belonged to Congress. In the long run, Hamilton's assumptions proved wrong. Increasingly, presidents would use the commander in chief clause to expand their authority over foreign policy in its most vital aspect, the power to make war. For this reason, presidents, their political supporters, and others would come often to refer, incorrectly, to the clause as the president's war power.

Other powers, such as the president's choosing heads of executive departments or cabinet members, his pardoning and veto authority as in budget matters, his right to inform and request legislation from Congress, and his duty to execute laws faithfully, all touched on foreign affairs. Regardless of the safeguards built into these various powers, the Founders created what they had tried to prevent, an office that in foreign affairs had the potential of becoming a kind of elective monarchy.

George Washington had an acute awareness that as the first president his behavior would set precedents for future occupants of the office, and it did. For instance, frustration in August 1789 in dealing with legislators over treaties with Indian tribes led him to abandon the constitutional requirement of obtaining the advice and consent of the Senate before or during negotiation of treaties. Instead, he concluded treaties and then asked for Senate approval, a procedure that since his time other presidents have followed. With a broad view of his authority, he viewed the president as having the power to enforce aspects of relations with foreign peoples even if his actions could lead to armed conflict. He first seized the initiative in using force in dealing with security on the western frontier, where he regarded the Native Americans as a foreign people who menaced white inhabitants. Beginning in October 1790, he sent three armies against Native Americans in the Northwest. In August 1794, the third expedition, headed by General "Mad" Anthony Wayne, crushed the Indian resistance.

Washington also acted with considerable independence in dealing with Europeans. After revolutionaries in France in September 1792 abolished the monarchy and established a republic, he used his power to receive foreign representatives to establish formal relations with the new regime. This decision established precedent for prompt de facto recognition of a government when it demonstrated effective control of a nation. The first significant controversy over the president's power in foreign affairs erupted after January 1793, when England and France went to war. France expected help from Washington because of its alliance with the United States during the American Revolution. Instead, on 22 April, he proclaimed neutrality. Critics regarded this policy as pro-British with the potential of provoking France to hostilities. Hence, they denounced it as usurping Congress's war power. Supporters of the policy, such as Hamilton, defended it as flowing logically from the executive's conduct of foreign affairs.

Writing under the pseudonym "Helvidius," Madison denied the president possessed the power on his own to take actions that would precipitate war. "Those who are to conduct a war," Madison wrote, "cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded." Regardless of the validity of this perspective, Washington had indeed taken a bold step in setting a precedent for presidents to claim the right to determine foreign policy unilaterally.

Meanwhile, despite the neutrality policy, friction with England over trade practices, over the frontier with Canada, and especially over the royal navy's seizure of American shipping and impressment of American seamen roiled relations with the mother country. Fearing possible hostilities, members of the newly formed Federalist Party pressed the president to send a special mission to London to resolve the differences. He chose John Jay, then chief justice, for the task and abandoned his usual practice of sharing an envoy's instructions with the Senate. Washington's action angered Democratic-Republicans, members of the opposition party, but the Federalist majority in the Senate approved the mission, and on 19 November 1794, Jay concluded a treaty that aroused harsh public criticism. Despite bitter controversy, the Senate approved the treaty and on 14 August 1795, the president ratified it. From this time on, Washington increasingly became a target of political abuse—"the head of British faction," one critic characterized him. French leaders called the treaty a negation of their alliance. Opponents in the House of Representatives tried to kill it by withholding appropriations for carrying it out. They also demanded to see the documents of the negotiation, thus raising the question, To what extent did the constitutional right of control over funding give the House power to participate in the treaty-approving process?

Democratic-Republicans argued that the House, as the immediate representative body of the people, had a right, even a duty, to consider whether or not a treaty should go into effect. Federalists countered that the Constitution restricted the treaty power to the president and Senate. On this premise, Washington refused to release the Jay papers. Finally, on 29 April 1796, by the margin of one vote, the House agreed to appropriate funds to implement the treaty. Thus, on the basis of party line considerations, Washington set another precedent that extended presidential power in foreign affairs, one that exempted the executive in this process from close legislative oversight.

Washington reacted defensively to the criticism that he had wrongly inflated presidential authority. During the controversies over that issue, he maintained that the powers of the American president "are more definite and better understood perhaps than those of almost any other Country," and that he had aimed "neither to stretch, nor relax from them in any instance whatever, unless imperious circumstances shd. render the measure indispensable." Later, in discussing the content of his Farewell Address, in which he set the principles for an isolationist policy, he wanted to make clear to all that "he could have no view in extending the Powers of the Executive beyond the limits prescribed by the Constitution." Regardless, when he left office and foreign policy became an issue in the presidential election of 1796, critics still believed he had aggrandized executive authority in a manner that placed the nation on the verge of war with France. Later generations of historians who characterized presidents as weak or strong would rank him as a strong executive.

BIBLIOGRAPHY

Abbott, Philip. Strong Presidents: A Theory of Leadership. Knoxville, Tenn., 1996.

Adler, David Gray. "The President's War-Making Power." In Thomas E. Cronin, ed. Inventing the American Presidency. Lawrence, Kans., 1969.

——. "The Constitution and Presidential Warmaking: The Enduring Debate." Political Science Quarterly 103 (spring 1988): 1–36.

Ambrose, Stephen E. "The Presidency and Foreign Policy." Foreign Affairs 70 (winter 1992): 120–137.

Bailey, Thomas A. Presidential Greatness: The Image and the Man from George Washington to the Present. New York 1966. Readable and provocative.

——. The Pugnacious Presidents: White House Warriors on Parade. New York, 1980.

Berger, Raoul. "The Presidential Monopoly of Foreign Affairs." Michigan Law Review 71 (November 1972): 1–58.

Bledsoe, W. Craig, et al. Powers of the Presidency. 2d ed. Washington, D.C., 1997.

Cheever, Daniel S., and H. Field Haviland, Jr. American Foreign Policy and the Separation of Powers. Cambridge, Mass., 1952.

Corwin, Edward S. The President's Control of Foreign Relations. Princeton, N.J., 1917.

Corwin, Edward S., et al. The President: Office and Powers, 1787–1984, History and Analysis of Practice and Opinion. 5th rev. ed. New York, 1984. Corwin's books are the pioneering works on the subject. They are still valuable for their scholarship and analyses.

DeConde, Alexander. Presidential Machismo: Executive Authority, Military Intervention, and Foreign Relations. Boston, 2000. Covers in greater detail, with documentation and an extensive bibliography, much of the subject and interpretations in this essay.

Eagleton, Thomas F. War and Presidential Power: A Chronicle of Congressional Surrender. New York, 1974.

Fisher, Louis. Presidential War Power. Lawrence, Kans., 1995. Both of Fisher's books are scholarly, authoritative, and important sources.

——. Constitutional Conflicts Between Congress and the President. 4th ed. Lawrence, Kans., 1997.

Franck, Thomas M., ed. The Tethered Presidency: Congressional Restraints on Executive Power. New York, 1981.

Friedman, David S. "Waging War Against Checks and Balances: The Claim of an Unlimited Presidential War Power." St. John's Law Review 57 (winter 1983): 213–273.

Glennon, Michael J. "Can the President Do No Wrong?" American Journal of International Law 80 (October 1986): 923–930.

Goldsmith, William M. The Growth of Presidential Power: A Documented History. 3 vols. New York, 1974. A collection of documents with commentary.

Graber, Doris A. Public Opinion, the President, and Foreign Policy: Four Case Studies from the Formative Years. New York, 1968. Covers the early national era.

Henkin, Louis. Foreign Affairs and the United States Constitution. 2d ed. New York, 1996. A scholarly and perceptive mainstay in the field.

Lehman, John F. Making War: The 200-Year-Old Battle Between the President and Congress over How America Goes to War. New York, 1991. A readable popular account.

Levy, Leonard W., and Louis Fisher, eds. Encyclopedia of the American Presidency. 4 vols. New York, 1994.

McDonald, Forrest. The American Presidency: An Intellectual History. Lawrence, Kans., 1994.

Marks, Frederick W., III. Independence on Trial: Foreign Affairs and the Making of the Constitution. Baton Rouge, La., 1973.

May, Ernest R., ed. The Ultimate Decision: The President as Commander in Chief. New York, 1960. Essays on selected presidents and their influence.

Mullen, William F. Presidential Power and Politics. New York, 1976.

Murray, Robert K., and Tim H. Blessing. Greatness in the White House: Rating the Presidents. 2d ed. University Park, Pa., 1994.

Neustadt, Richard E. Presidential Power and the Modern Presidents: Politics and Leadership from Roosevelt to Reagan. Rev. ed. New York, 1990. An influential study that stresses the power of persuasion.

Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. New York, 1996. The chapter "Creating the Presidency" is particularly rewarding.

Riccards, Michael P. The Ferocious Engine of Democracy: A History of the American Presidency. 2 vols. Lanham, Md., 1995.

Robinson, Edgar Eugene, Alexander DeConde, Raymond G. O'Connor, and Martin B. Travis, Jr. Powers of the President in Foreign Affairs, 1945–1965. San Francisco, 1966.

Rose, Gary L. The American Presidency Under Siege. Albany, N.Y., 1997.

Rourke, John T. Presidential Wars and American Democracy: Rally 'Round the Chief. New York, 1993.

Schlesinger, Arthur M., Jr. The Imperial Presidency. Boston, 1973. Scholarly, insightful, and gracefully written, this book is a fundamental read.

Shenkman, Richard. Presidential Ambition: How the Presidents Gained Power, Kept Power, and Got Things Done. New York, 1999. A readable popular account.

Skowronek, Stephen. The Politics Presidents Make: Leadership from John Adams to George Bush. Cambridge, Mass., 1993.

Smith, J. Malcolm, and Stephen Jurika, Jr. The President and National Security: His Role as Commander-in-Chief. Dubuque, Iowa, 1972.

Thomas, Ann Van Wynen, and A. J. Thomas, Jr. The War-Making Powers of the President: Constitutional and International Law Aspects. Dallas, Tex., 1982.

Warburg, Gerald F. Conflict and Consensus: The Struggle Between Congress and the President over Foreign Policymaking. New York, 1989.

Wildavsky, Aaron. The Beleaguered Presidency. New Brunswick, N.J., 1991.

See also Congressional Power ; The Constitution ; Department of Defense ; Department of State ; Militarism ; Nuclear Strategy and Diplomacy ; Party Politics ; Power Politics ; Presidential Advisers ; Summit Conferences .

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