Pitfalls of the Prerogative Game : Collaborative Government Curbs a Temptation to Overreach

According to the Tower Commission, if National Security Council staff members had followed proper procedures the Iran- contras scandal might not have happened. The commission report proposes a streamlined NSC operation but rejects any legislative changes.

This focus on staffing and procedures is wrong, and the proposed remedies would not address the real problems. Foreign-policy fiascoes bedeviled past Presidents who were more intelligent and involved than Ronald Reagan, surrounded by the best and brightest advisers. If reform is limited to the Tower report, they will do so again.

The central issues of foreign policy-making are not administrative but political: They involve the authority and legitimacy of presidential actions. The public must believe that the President knows what he is doing (authority), and must believe that what he does is constitutional and lawful (legitimacy).

Because of the silences and ambiguities of the Constitution, and the vagaries of legislative drafting, Presidents often reach for constitutional powers and construe statutes beyond recognition. If they maintain their authority, they get away with overstepping the literal bounds of the law: George Washington did so with the neutrality proclamation of 1792, Thomas Jefferson with the Louisiana Purchase, Abraham Lincoln with the Civil War, and Franklin D. Roosevelt with the destroyer deal to the British during World War II. Congress retroactively legitimates or further perfects the presidential initiative, the courts step aside or uphold it, the party system accommodates it and the historians celebrate it.

But if the policy is not viable, presidential authority is weakened and then presidential legitimacy is at risk. Reagan’s dealing with Iran weakened his authority, and the contra connection destroyed his legitimacy. Violations of the Constitution and laws are clear: The spending of funds without budget authority was in violation of congressional restrictions, and there was a failure to notify congressional committees about covert operations. The Administration, if it wants to insist that the arms sales were an attempt to influence moderates in Tehran, is also in violation of the 1980 executive agreement with Iran in which the United States said that it would not interfere in that country’s internal affairs.

The Reagan presidency, like most others, has legitimized itself through its electoral mandate. It fuses public support with prerogative powers, even arrogating to itself the dispensing power--the power to ignore the law. At the core of presidential power in this or any other Administration lies constitutional prerogative and expansive interpretation of statutory delegations to the executive.

Presidents who rely on governments by prerogative play a dangerous game. When policies fail and their legitimacy is questioned, a backlash splits the President’s party and unites the opposition. His staff is convulsed, his popularity declines and his influence is lessened. In the worst-case scenario, the policy overshoot leads to Administration collapse. The presidency is put into an informal regency. During the Watergate scandal, Henry A. Kissinger held things together; today Reagan relies on Vice President George Bush, the two Bakers (Treasury Secretary James A. and new Chief of Staff Howard H. Jr.) and other consensus-makers.

To restore the damage to the American national interest, it is not enough to rely on the recommendations of the Tower Commission or on the good faith of the President and his new team to implement them. Congress must act, in a spirit of bipartisanship, to legislate procedures that create collaborative government: prior consultation, ironclad reporting mechanisms and better oversight of operations. It must pass legislation preventing officials from either soliciting or handling funds from foreign governments or individuals. It should subject the national-security adviser to Senate confirmation, and should require him to keep Congress fully and currently informed of National Security Council operations. It should designate the national-security assistant as an adviser to Congress as well as to the President--a system that has worked with the chairman of the Joint Chiefs of Staff.

Congress must shore up existing collaborative mechanisms. It must close the loopholes that allow the President to retroactively make a finding that committees need not be informed of operations. It must redefine the term operation to cover missions such as Robert C. McFarlane’s visit to Tehran. It must amend the war-powers resolution so that it no longer can be evaded or ignored, as it has been by every President since its enactment, by tightening up the prior consultation, reporting and subsequent restraint provisions.

The Tower Commission has explicitly rejected legislative proposals such as these. If its recommendations are implemented, it will only make the problem worse--especially if national-security advisers are convinced that they have put the problems that caused the Iran scandal behind them.