Constitutional Limits : Power Shifts in 200-Year Balancing Act

When James Madison placed his name on the Constitution exactly 200 years ago today, he thought the Constitutional Convention was making itself crystal clear on one key matter--the relative duties of Congress and the President.

Madison, one of the document’s chief drafters, observed years later that he believed the Constitution invested Congress with the authority to make policy and the President with the duty of carrying it out.

Although the document drafted in Philadelphia by the 55 Founding Fathers has survived remarkably well for two centuries, it has not worked out exactly as Madison envisioned. In two most vital areas--foreign affairs and the power to make war--modern practice has turned Madison’s formulation on its head. Now, it is the President who makes the policy, and Congress is often left with little more to do than criticize and complain.

North’s View on President

The summer’s Iran- contra hearings helped to demonstrate how far the locus of power has shifted. Lt. Col. Oliver L. North bluntly declared that the President had an inherent constitutional power to conduct foreign policy as he thought best, even if it meant carrying out secret operations in defiance of the will of Congress.

“This idea wasn’t the invention of an obscure Marine colonel,” said University of Wisconsin historian Stanley Kutler. “One of the worst cliches of modern constitutional history is the notion that the President was given absolute control over foreign policy . . . . There is nothing in the literature of the Constitution that sustains that proposition.”

Yet, if a modern-day President can sometimes exercise almost total power on a de facto basis, the checks and balances built into the Constitution--as well as the nation’s overall political system--continue to exert a restraining influence. Sooner or later, even the most assertive occupant of the Oval Office has felt compelled to seek public--in practice, congressional--support for his policies.

Sees Need for Consensus

“We still have a democratic tradition in foreign policy which says: If you want to undertake a major initiative, you need a democratic consensus,” UCLA history professor Robert Dallek said. “The President can act, but, for his policy to endure, he has to have the support of Congress and the country.”

Unquestionably, delegates to the Constitutional Convention wanted the new national government to have sufficient authority to carry out an effective foreign policy. “They wanted to make sure the government had the necessary power to defend itself,” Georgetown University Prof. Walter Berns said.

During the Revolutionary War, the Continental Congress often could not pay its beleaguered troops because it lacked the power to collect taxes from the states. After the war, several states established what amounted to their own foreign policies by setting up special trading relationships with European nations or negotiating treaties with Indian nations.

It was apprehension about such paralysis and division that led the delegates of 1787 to seek a stronger national government.

Not Long on Specifics

They devoted much less time to a careful consideration of who would control the new powers--the Congress or the President, although no scholars today believe that the Founding Fathers meant to give exclusive, unfettered authority in the field of foreign affairs to the President.

On Aug. 17, 1787, for instance, during one of the few recorded debates on the war-making power, the delegates changed the wording of a draft that gave Congress the power to “make war” to a power to “declare war.” This slight rephrasing, delegate Edmund Randolph of Virginia said, would allow the President the necessary power “to repel sudden attacks.”

In anything other than extreme emergencies, it was assumed, Congress would set the policy, and the President would implement it.

“They conceived of Congress’ being the dominant branch,” said Charles Lofgren, a history professor at Claremont McKenna College. “In the area of war-making, they assigned the power to Congress in every case short of the President acting in obvious self-defense.”

‘Shared Responsibility’

“In the broader area of foreign relations, it is a more shared responsibility,” Lofgren added. “The problem is that the line between the conduct of foreign policy (which is the President’s responsibility) and the making of foreign policy becomes awfully indistinct.”

In Article I of the Constitution, Congress was given “all legislative powers.” Further, “Congress shall have the power to . . . provide for the common Defence; . . . to regulate Commerce with foreign Nations; . . . to declare War . . . and make rules concerning Captures on Land and Water; . . . to raise and support Armies; . . . to provide and maintain a Navy; . . . to make Rules for the Government and Regulation of the land and naval Forces; (and) to provide for calling forth the militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

The related powers of the President were stated more briefly. Article II says the “executive Power shall be vested in a President of the United States.” Moreover, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States when called into actual Service of the United States . . . .

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, . . . (and) appoint Ambassadors.”

Congress Controls Purse

If the President did not carry out the policies of Congress, the Constitution included two other grants of power to rein him in. First, Congress controlled the purse strings. “No money shall be drawn from the Treasury but in consequence of appropriations made by law.” Second, the House of Representatives “shall have the sole Power of Impeachment.”

As former Sen. J. William Fulbright (D-Ark.) commented: “The ultimate power is Congress: They can remove him; he can’t remove them.”

Still, it did not take long for this seemingly clear conception to run into a jarring reality.

And it was not a President eager to move toward war, but rather one interested in preserving peace, who first declared a foreign policy without approval from Congress. In 1793, Britain and France went to war, and many American merchant seamen assumed that the United States would come to the aid of its former ally, France. But President Washington wanted to keep the new nation out of the conflict and feared a move by American ships to aid the French. Without waiting for word from Congress, which was on a recess, he proclaimed the nation’s neutrality on April 22, 1793.

What today sounds like an innocuous move set off a constitutional crisis. “The Republican press howled that France and freedom had been betrayed (and Washington) had finally revealed this itch for monarchy,” Washington’s biographer James Thomas Flexner said.

Two allies from the convention, Alexander Hamilton and James Madison, the chief authors of the Federalist Papers in 1787, this time took to the public press on opposite sides of the issue.

Hamilton, a believer in a strong executive, said Washington’s move was correct because he was merely proclaiming U.S. foreign policy. “The legislative department is not the organ of intercourse between the United States and foreign nations. The second article of the Constitution . . . establishes this general proposition, that ‘the executive power shall be vested in a president,’ ” Hamilton wrote.

Madison contended hotly that this unilateral move by Washington rests on a “principle . . . which strikes at the vitals of the Constitution.”

“In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department,” Madison wrote. “Those who are to conduct a war (presidents) cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued or concluded.

“War is in fact the true nurse of executive aggrandizement,” Madison continued. “In war, a physical force is to be created, and it is the executive will which is to direct it . . . . In war, the honors and emoluments of office are to be multiplied, and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that the laurels are to be gathered, and it is the executive brow they are to encircle.

“The strongest passions and most dangerous weaknesses of the human breast--ambition, avarice, vanity, the honorable and venial love of fame--are all in conspiracy against the desire and duty of peace.”

In the end, Washington defused the dispute by submitting the Neutrality Proclamation for approval by Congress. But the patterns and the essential arguments were set. Ever since, when a crisis--real or perceived--arises, the President acts. When controversy ensues, his defenders cite Hamilton’s arguments. Madison speaks for those who favor a restrained executive. And often, as Washington did, presidents seek ways to obtain Congress’ blessings for their actions--if only retroactively.

When the Southern states seceded and Confederate forces attacked Ft. Sumter in 1861, President Abraham Lincoln organized a war effort without consulting Congress, which was in recess. He raised an army and a navy and found the funds to pay for them, all seemingly in clear violation of explicit clauses of the Constitution. Lincoln said he was acting under his powers as commander in chief. And no one questioned that he faced a true emergency.

Lincoln, a lawyer, later offered this rationale: “Measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation.”

While Lincoln foresaw the destruction of the union, Franklin D. Roosevelt some 80 years later perceived a threat to all of Western democracy. In 1940, with Britain barely hanging on against Nazi Germany, Roosevelt decided to “lend” the British 50 aging destroyers in exchange for a “lease” of certain naval bases. Congress was consulted, but Roosevelt did not ask for a vote on the “lend-lease” deal until a year later.

“Roosevelt was a manipulator, but he was also very cautious,” said UCLA historian Dallek, an expert on Roosevelt. “He was very sensitive to the democratic tradition . . . the need to bring Congress along.”

Just a generation before, Woodrow Wilson’s presidency had been destroyed at the end of World War I when he negotiated a treaty at Versailles, including creation of the League of Nations, that went beyond what the Senate would accept. Roosevelt was not about to make the same mistake, Dallek said.

Four years before the lend-lease deal, the President’s legal powers had been given a boost from an odd and obscure Supreme Court ruling. In the early 1930s, Bolivia and Paraguay were at war, and Congress adopted a resolution calling for an embargo of U.S. weapons going to the belligerents. Roosevelt carried out the resolution through an executive order. The Curtiss-Wright Export Co., charged with violating the ban, appealed to the Supreme Court, contending that the embargo was illegal.

The Supreme Court upheld the President’s order in 1936. Although the court clashed repeatedly with Roosevelt over economic matters, the “nine old men” nevertheless issued a broad defense of executive power. Going beyond the case at hand, Justice George Sutherland issued an opinion that at one point declared the “exclusive power of the President as the sole organ of the federal government in the field of international relations.”

Reminder Usually Left Out

This ruling, in U.S. vs. Curtiss-Wright Export Co., has been cited repeatedly by advocates of a strong presidency, from Roosevelt in 1940 to Oliver North during the Iran-contra hearings. What is usually left out, however, is Sutherland’s reminder that the President’s power to act is, in the first instance, “an authority vested in the President by an exertion of legislative power.”

A year after the lend-lease deal, Roosevelt did something no President has done since. The day after the Japanese attack on Pearl Harbor, he went to Congress and got a declaration of war.

In 1950, Harry S. Truman sent troops into combat in Korea without consulting Congress. In 1962, John F. Kennedy set up a naval blockade to intercept Soviet ships off Cuba, again without taking time to get congressional backing. Both presidents said their actions were responses to emergencies.

In 1965, Lyndon B. Johnson sent troops into the Dominican Republic to quell rioting there. Later that year he began a massive troop buildup in Vietnam after having the previous year gained congressional approval of the Tonkin Gulf resolution, a broadly worded measure allowing him to respond to an attack on an American destroyer and to repel “further aggression.”

In 1970, President Richard M. Nixon sent troops across the border of Vietnam into Cambodia to attack bases used by the North Vietnamese army. This extension of the war was justified as a self-defense measure undertaken by the commander in chief.

Many historians and political scientists make two points about this growth in presidential assertiveness:

--First, a world of nuclear missiles and instantaneous communications virtually mandates that power rest with one person, not 535 members of Congress.

--Second, Congress has failed to speak clearly on foreign policy.

“It is somewhat by default that the executive has taken prominence,” said Lofgren of Claremont McKenna College. “Congress didn’t deal very effectively with the Vietnam War, for example. Congress still has the ultimate authority. Nothing runs without money. And there is impeachment.”

Although Congress did not declare war in Korea or Vietnam, it funded both efforts, Lofgren noted.

In 1973, Congress tried to reassert its authority through the War Powers Resolution, enacted over Nixon’s veto. Under the measure, a President must report to Congress within 48 hours after deploying troops in a hostile situation. If, within 60 days, Congress does not authorize their deployment, he must withdraw them.

Presidents since Nixon have reported to Congress when they have deployed military forces abroad as required by the War Powers Act, but they have also contended that they need not do so. For example, when Congress in 1982 authorized President Reagan to keep U.S. troops in Beirut for 18 months, Reagan accepted the authorization but said it did not “revise the President’s constitutional authority to deploy United States armed forces.”

Congress Blocks Funds

In the aftermath of Vietnam, Congress blocked the Gerald R. Ford Administration from intervening on behalf of anti-communist forces in Angola, and it has on several occasions voted to stop U.S. aid to the contra forces in Nicaragua.

Thus, 200 years after the drafting of the Constitution, the division of powers between Congress and the President in the area of foreign policy is still in active dispute. All that is clear, according to scholars and legal experts, is that the President at some point must seek public and congressional support for the actions he takes.

The growth of “the imperial presidency since World War II” has threatened to destroy the Constitution’s balance in the area of foreign policy, UCLA’s Dallek said, but experiences such as the Vietnam War and the Iran-contra affair have provided important checks on the presidency.

Must Give an Account

The Constitution “cannot define the exact point at which the law of Congress must give way to executive privilege,” said Berns of Georgetown University. The President “has extraordinary powers to act, but the President is obliged to give an account of how he exercises those powers.”

“That’s what Lincoln did and Roosevelt did, but not Reagan,” Berns said, referring to the Administration’s secret arms sales to Iran, the diversion of funds to the contras and the profound political damage suffered by a popular President when those activities were finally subjected to public scrutiny.