POL 313

 

The Presidency

The President and National Security Policy

 

 
From World War II to the "collapse of communism", national security policy has been a dominant concern of all presidents. It was not only a place the President dominated because of the US's military and economic power, but a place where presidents were relatively free from congressional interference.

 
National security is also a place where presidents can often try to expand their power through claims of prerogative powers.

Thus, the national security policy arena is a fine place to test the
"presidential power paradigm"!


 
War, or foreign adventurism, can elevate failing popular support
(Remember the "Rally Around the President in Time of Crisis" and
"Our President Right or Wrong" indices
discussed earlier in the semester?)

Foreign policy is also an area in which the institutional connection favors the president


 
Many presidents have thought of themselves as "foreign policy experts" with little interest in the "messy" area of domestic politics (Nixon, Bush). Other presidents have been more interested in domestic than foreign policy (Carter, Reagan, Clinton).

 
Perhaps this is explained by their backgrounds and careers! There is little foreign policy action in being the governor of Georgia, California, Texas or Arkansas!!


 
The National Security Context

 
Before we begin an exploration of presidential-congressional relations in
the national security policy area, we need to explore
a brief history of recent trends and issues in the national security area.


 
Prior to World War I, the United States was frequently viewed as an isolationist country. One which did not desire to play a major role in world affairs.

 
This is most often viewed as a product of the stage of our development as well as the actual physical isolation of the country. Americans were generally only concerned about the "power dramas" of Europe (no thought to the rest of the world!) as it related to our interests. America basically stayed out unless their was a perceived threat to our domination of the western hemisphere. In essence, as long as we had "hegemony" in our own sphere of influence, we cared little about the "power dramas" of Europe.

 
World War II and II begin the process of moving the US on to the world stage.

Post-World War II is dominated by "the containment of communism"


from the end of WWII to Collapse of Communism

U.S. military actions in Korean peninsula, Vietnam

U.S. policy in Asia, the Middle East, and Central and South America


 
Post-collapse
 
terrorism

trade and international economic policy

 

 

 


Issues



Presidential Powers in National Security Policy
 


 
inherent powers


 
most of the powers of the United States in the area of international affairs are inherent and exclusive.


 
They are inherent in the fact that they are not granted in the Constitution but derive from the nation's existence as a sovereign power (see sovereign powers theory)

 
The Constitution is somewhat vague on who actually controls foreign policy. Both the President and Congress have constitutional powers in this sphere.

The President generally conducts foreign policy to the extent that negotiations and communications with other governments are a virtual presidential monopoly.

However, Congress retains the ability to substantially influence the substance of foreign and defense policy since presidential policies are dependent upon the Congress for implementing legislation and appropriations.



 
General Powers of the President in National Security

 
These powers stem from a multiplicity of sources (primarily constitutional):


 
1) constitutional:

 
A) recognition of foreign governments
 
This power stems from Art II, Sec 3 which grants the President the power to receive Ambassadors and other public Ministers of foreign governments. This is an exclusive power of the President although Congress may seek to influence the President. Recognition is generally granted to countries that:

 
1) are stable;
2) have established their authority; and
3) are meeting their international obligations

 
Examples:
US refused to recognize the communist government of Russia after the revolution of 1917-18;
US was first country to recognize Israel in 1948; US doesn't recognize PRC in 1949;
US recognizes the Baltic states of Estonia, Latvia, and Lithuania in 1991;
US broke relations with Iran following hostage taking in 1979.

 
B) international agreements

 
Art II, Sec 2 gives the President (with the advice and consent of the Senate) the ability to make treaties provided two-thirds of the Senate concurs. While "executive agreements" are not explicitly mentioned, they are universally conceded to be an executive prerogative. These agreements do not require Senate approval. The first executive agreement was in 1792 (with Canada and involving a postal agreement). There are nearly 10 times as many executive agreements as there are treaties!

Congress has attempted only minimally to voice its disapproval of executive agreements. The Chase-Zablocki Act of 1972 requires that the Congress be notified of all executive agreements.

 
Thus presidents can "play politics" with national security decisions to the extent that if the administration wants/ expects Senate approval they put it forward to the Senate as a treaty; if they don't it's an executive agreement! Panama Canal Treaty; lend/lease of destroyers to Britain prior to World War II; occupation of Germany after World War II; Vietnam cessation of hostilities.

Congress' ability to influence executive agreements extends only to the extent that they are not "self-executing" and thus need Congressional action in the form of implementing legislation or appropriations

 
The President is free to abrogate executive agreement. The Constitution is silent however, on whether presidents need Senate approval to abrogate a treaty. The Supreme Court ruled in 1979 (Goldwater v. Carter) that the President could unilaterally abrogate a defense treaty with Taiwan that was part of agreements establishing diplomatic relations with the PRC. Reagan terminated without congressional approval a commercial treaty with Nicaragua and U.S. membership in the UN Educational, Scientific and Cultural Organization.

President's can also influence national security policy by "reinterpreting" treaties. In 1985, Reagan "reinterpreted the 1972 Anti-Ballistic Missile Treaty to accommodate the development of "star wars" despite objections by the Congress and the Soviet Union.

C) Appointments

Presidential appointments:
Secretary of State
Secretary of Defense
Director of the CIA
Assistant for National Security Affairs

With these appointments the president indicates the direction and orientation of US foreign and defense policies.

It can be argued that you can tell something about the President's "feeling" for foreign policy (and perhaps their "character") by seeing who is appointed Secretary of State. A well-known opinionated person generally means that the President will rely heavily on them. A relative unknown means the President wants to be the major player in national security affairs. (Reagan and Haig; Clinton and Allbright; Nixon's replacement of Wm. Rogers with Kissinger).

It is also argued that you can tell about the President and defense by looking at who is appointed Secretary of Defense. Kennedy's choice of Robert McNamara (determination to make military more efficient); Nixon's choice of Rep. Melvin Laird (more influence with Congress); Reagan appointment of Caspar Weinberger (mixed message of cost-cutter Weinberger vs. Reagan defense expenditures); Clinton's appointment of Cohen (a Republican from Maine--bipartisan foreign policy??)

CIA director appointments can be controversial. Since CIA gathers "intelligence" this broad grant can become political in 2 ways: 1) the problem of "domestic intelligence" and 2) the problem when something unexpected happens (failure to recognize Iranian revolution's early stages; Iraq's invasion of Kuwait, etc.). CIA directors can be professionals or politicians. Reagan's appointment of Casey and the Inran-Contra affair (Casey dies before congressional investigation into the affair).

The appointment of the national security assistant in not subject to Senate approval.

D) the use of military force

President as commander-in-chief vs. Article I's grant of powers to Congress in the area of military matters is substantial, including the ability to declare war

In theory then, the two branches "share" powers", historically the reality is quite different

The reality is that, over time, there has been a great expansion of presidential power at the expense of Congressional power--------the "war powers" battleground

The war powers of the president are sweeping and have their basis in the Constitution, statutory delegations of power to the President by Congress, and in judicial interpretation

The constitutional foundation of presidential war power was laid by Lincoln during the Civil War when he married the commander-in-chief clause to the "take care that the laws be faithfully executed" clause (remember Pious lecture?!). He used the resulting powers to justify a wide range of presidential actions such as:
1) activating state militias;
2) spending appropriated funds for unauthorized purposes;
3) suspending the writ of habeus corpus;
4) blockading Confederate ports

The Supreme Court upheld the legality of the blockade in the Prize Cases which declared that the president had a duty to defend the nation by appropriate means, including military action.

Also, the Court's refusal to overturn any of Lincoln's actions until after the end of the war set a precedent of judicial deference that would be followed in future wars (for example, the incarceration of Japanese-Americans during World War II, the War Labor Board with sweeping regulatory power, and FDR demand--and congressional action to repeal the Emergency Price Control Act (and creating of the Office of Price Administration))


 
Congress has also acquiesced in the expansion of presidential war powers by delegating to the president via statute:

1) in World War I, Congress granted the president power to purchase materials for the war, to prohibit liscences, to censor international communications, to regulate enemy aliens in the United States, and to seize and operate the railroads

2) these powers were expanded during World War II---Lend-Lease Act, for example--and not withdrawn until the National Emergencies Act of 1976


Thus, once war is declared, presidential powers are vast!! Some constitutional scholars have even argued that during war time, the Constitution is suspended!!!!!

The president's power to use military force in peacetime or periods of "undeclared war" is less clear. While the Supreme Court has been reticent to rule in this area, Congress has been more willing to to asserts its prerogatives

Between WWI and WWII Congress attempted to circumscribe presidential war powers via the Neutrality Acts. Congress's failure to declare and implement a policy of isolationism (and perhaps the isolationist tendency itself) helped to bring on WWII)

Following WWII, presidents fashioned an internationalist policy with bipartisan support, based primarily on the notion of the containment of communism, in which it was expected that presidents took the initiative and Congress reviewed (and approved) the actions by passing implementing legislation and appropriations.

The most sensitive area was the commitment of US troops to fight abroad---something still debated today!!!

 
Vietnam


The most controversial action to date has been US involvement in Vietnam.

Starting with Truman, American presidents made commitments of military aid and advisors to the government of South Vietnam

By the end of 1963, the US had 16,000 military advisors there participating in combat although not authorized to do so

In August 1964, the US administration reported a confrontation between a US destroyer and a North Vietnamese gunboat in the Gulf of Tonkin

At Johnson's request Congress passed the Gulf of Tonkin resolution which authorized the president to "take all necessary steps including the use of armed force to assist nations belong to SEATO in defense of their freedom" (The resolution passed with only two dissenting votes!)

LBJ ordered a huge increase (by 1967 there were 500,000+ troops) in force, the conduct of air raids, etc. Nixon ordered the covert invasion of Cambodia and in Decmeber 1972 the bombing of Hanoi and Haiphong. To support the war effort after the Congress cut off funds, Nixon impounded funds to further prosecute the war All of these actions were taken without the consent of Congress

As the war dragged on, Congressional support (and public support) began to wane

Congressional Reassertion

During the 1970s Congress attempted to limit the president's ability to dominate national security policy, especially as it related to war. These efforts included:

1) limit presidents ability to wage was;
2) reduce unrestrained use of executive agreements and reassert dominance of treaty as key to international agreements;
3) curb secrecy and covert operations in the conduct of foreign and military affairs


The War Powers Resolution of 1973

Web connection to War Powers Resolution

President may commit armed forces to combat only in event of a declaration of war, specific statutory authorization, or national emergency created by an attack on the US or its armed forces. It requires a written report to Congress within 48 of a commitment of forces and the ending of the commitment within 60 days unless authorized by COngress. (Can be extended 30 more days if President certifies to Congress that military conditions require continued use of force to insure troop safety). It also stated that through the use of a concurrent resolution not subject to presidential veto, Congress could order the disengagement after the 60 day period.

Through the Bush presidency, presidents filed 24 reports of military actions with Congress. The most prominent---the Mayaguez incident-- was the only one in which the 60 day clock started.

All presidents have argued that the resolution is an unconstitutional encroachment on presidential power and have generally circumvented it by not starting the 60 day clock.

Bush did this in the invasion of Panama and, more importantly in Iraq. Here Bush notified Congress of his intent to send troops in a letter which he argued was consistent with the intent of the resolution but did not start the clock. During the next 6 months neither Bush nor Congress tried to start the clock. One week prior to the deadline for Iraq to withdraw (6 months after the beginning of the troop build up) Bush asked Congress to pass a joint resolution approving the use of force (passed 52-47 in Senate and 250-183 in House). Bush signed the resolution while still asserting the position that the War Powers Resolution was unconstitutional


What is the upshot of this? It is unclear!

It is often viewed as a symbolic victory for Congress with no real practical consequences. Others argue that the timetable aspects lend a measure of democratic control to the president's ability to prosecute an undeclared war. Others argue that the language, etc. need to be tightened to further restrain presidents. Still others argue that it has some effect in altering public opinion about presidential actions--they cite as examples--Somalia, Haiti, Bosnia, and the recent outcry against bombing Iraq as exmples of how presidents have been constrained !---You decide!

 


 
Electronic Opinions on War Powers:

Heritage Foundation Lecture
Gerald Ford Speech on War Powers Resolution and Executive/ Legislative Relation given at U. of Kentucky
Gerald Ford Speech on War Powers Resolution at given at U. of Kansas


Other interesting connections:

US Naval Historical Center list of instances of use of US forces abroad
Student electronic presentation on Gulf War

 

 

 

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