Not Above Law, But Well Within It : President Has Invincible Right to Solicit Funds for Contras

Constitutional history, Supreme Court pronouncements, political custom and reason all confirm the preeminent constitutional power of the President and his alter ego, the National Security Council, to forge and execute national security and foreign policy.

Yet from October, 1984, to October, 1986, Congress sought to exploit its power to hamstring President Reagan’s policy of support for the contras fighting the Sandinista tyranny in Nicaragua. Congress enacted the so-called Boland Amendment during that two-year interval. The amendment prohibited funds appropriated for the Central Intelligence Agency, Defense Department, or any other agency involved in intelligence activities, from being used to aid directly or indirectly the military arm of the contras. But the amendment did not, and constitutionally could not, prohibit either the President or his NSC from soliciting foreign governments or private parties to fund the contra military effort.

Our Constitution emerged from a convention that had been called in 1787 in large measure to invigorate a feeble executive power that, as drawn in the Articles of Confederation, made the nation vulnerable to foreign enemies. The articles entrusted executive power to an irresolute, multi-member Congress, whose weakness was highlighted in 1786 by Shays’ Rebellion in Massachusetts.

At the convention, misuse of power by the legislative department, not the executive branch, was a major issue. James Madison expostulated in Federalist 48 that legislatures everywhere were usurping power. He warned that “it is against the enterprising ambition of (Congress) that the people ought to indulge all their jealousy and exhaust all their precautions.”

In national security and foreign policy, the Constitution subordinated the powers of Congress to the broad discretion of the President.

Congress was denied power to make war, only endowed with the power to declare war, whereas the President was explicitly endowed with unilateral authority to repel sudden attacks.

The President also was granted exclusive and plenary authority to negotiate with foreign nations because of the imperatives of secrecy, intelligence and dispatch, as John Jay explains in Federalist 64. Indeed, more than 50 years ago in United States vs. Curtis Wright Corp., the Supreme Court confirmed that in the vast realm of international relations, “the President alone has the power to speak or listen as a representative of the nation,” a power whose exercise does not require “an act of Congress.”

In an earlier case, the court maintained that the President possesses constitutional authority to faithfully execute international law.

Both Congress and President Reagan have found that Sandinista despotism has violated Nicaragua’s commitments under the 1947 Rio Treaty and 1948 Charter of the Organization of American States by fomenting insurrections in El Salvador and other Central American democracies.

The treaties entitle the United States to respond by use of proportionate force to deter the Sandinistas. Encouraging private individuals or other nations to provide aid to the contras is in accordance with President Reagan’s constitutional power to enforce international law and U.S. treaty rights.

The constitutional prerogatives asserted by President Reagan over national security or foreign policy parallel venerated paths pioneered by Presidents Abraham Lincoln and Franklin D. Roosevelt. During the Civil War, Lincoln unilaterally suspended the writ of habeas corpus, despite a judicial ruling that the concurrence of Congress was constitutionally required. Explaining his disobedience, Lincoln asked, “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”

Before Japan’s treachery at Pearl Harbor, F.D.R. circumvented the neutrality laws by providing naval assistance to Great Britain. Defending his aggressive actions, the President said that in the days of lightning-like attack, “it is stupid to wait until a probable enemy has gained a foothold from which to attack. Old-fashioned common sense calls for the use of a strategy that will prevent such an enemy from gaining a foothold in the first place.”

The institutional attributes of Congress dictate its role as understudy to the President on the stage of international affairs. Alexander Hamilton observed in Federalist 75 that success in that arena requires a knowledge of foreign politics, a firm and systematic adherence to long-range goals, and continuity of policy and decisiveness.

These attributes are more likely to be found in a President than in Congress. A collection of 535 individuals devoting much time and energy to satisfying constituent needs, dealing with domestic issues and planning reelection campaigns, cannot formulate and implement a consistent foreign policy.

Congress is ill-suited for policy continuity because of the unremitting demands on members for tangible signs of success before the next election cycle. The consequence is an oscillating and aimless foreign policy, exemplified by the legislative pirouettes towards Nicaragua.

In 1979 and 1980 Congress provided approximately $120 million to support the Sandinistas. In a 1983 about-face, Congress provided $24 million in contra military aid. Military funding for the contras ceased in 1984 and 1985, but $27 million in humanitarian aid and limited information sharing was authorized. In 1986 $100 million in military and humanitarian aid was appropriated, but prospects for further contra funding in 1987 are dim.

Compromise is the earmark of the internal politics of Congress. Multiple views typically receive some recognition to satisfy a majority.

Thus Congress funds some freedom fighters abroad, but not others; it denounces some human-rights violations, but not others; it offers compromise funding levels for new weapons development or production. But no strategic organizing principle explains congressional voting patterns in international relations.

The Supreme Court in Gravel vs. United States held that congressional assistants may invoke congressmen’s constitutional immunities from prosecution in performing legislative tasks.

The court in Harlow vs. Fitzgerald also suggested that NSC employees enjoy the constitutional prerogatives of the President in furthering his national security objectives.

Constitutional history, Supreme Court decisions, the precedents of Lincoln and Roosevelt and sound political theory establish a constitutionally invincible right of President Reagan to solicit private or foreign nation funds for the contras. That constitutional power is shared by NSC officials, such as John M. Poindexter, Robert C. McFarlane and Col. Oliver L. North, when acting to further the President’s national security goals.