McDonald – The Presidency American Foreign Policy

Forrest McDonald
The Presidency & American Foreign Policy

The Philadelphia
Society National Meeting
April 21, 2001

The Framers of the Constitution expected the
president and the Senate to be more or less equal partners in the conduct of
American relations with other nations, but that expectation was dashed almost at
the outset. Only a few months after George Washington became president he and
Secretary of War Henry Knox, taking the advise and consent clause literally,
dropped in on the Senate without warning to seek advice concerning some pending
Indian negotiations, and the result was a fiasco. Thenceforth presidents
declined to seek the Senate’s formal advice in advance of negotiations; instead,
they or their envoys negotiated and if a treaty resulted sent it to the Senate
for consent but not for advice. As the Senate Committee on Foreign Relations put
it as early as 1816, it was well established that the president is "the
sole organ of the nation in its external relations, and its sole representative
with foreign nations."

Between the presidency of James Monroe and that of William
McKinley, the manner in which foreign relations were conducted was of little
consequence, for such relations were minimal. To be sure, the United States was
not totally isolated from the rest of the planet. Economically, it was
integrated into a world order–a bumper crop on the Danube or Volga, for
instance, could spell disaster for wheat farmers in the Middle West–but in the
formal nation-tonation sphere we simply had not much to do with the rest of the
world. Only James K. Polk, who maneuvered the country into a war of territorial
aggrandizement against Mexico, and Millard Fillmore, who opened Japan to
American trade, had any appreciable influence in international affairs.

The rise of the United States as a world
power–dramatically symbolized by the Spanish-American War and even more so by
American intervention in World War I–ended that happy state of things and
necessitated some constitutional adjustments that would inevitably elicit
controversy. The first such change concerned the scope of the treaty-making
power. Article VI of the Constitution makes the Constitution, laws passed in
"pursuance" of it, and "all Treaties made, or which shall be
made, under the Authority of the United States" the supreme law of the
land. Early in the twentieth century, Congress passed a law regulating the
killing of migratory game birds, notably Canadian geese. The act was contested,
and the Supreme Court declared it unconstitutional on the ground that Congress
had been delegated no power to legislate on such matters. But then President
Taft negotiated a treaty with Canada agreeing that both countries would regulate
the birds, and Congress repassed the act. This time in Missouri v. Holland,
the Supreme Court upheld the legislation on the ground that the treaty was part
of the supreme law of the land. In other words, a treaty can give constitutional
sanction to an action that is otherwise impermissable.

The next step was taken in the 1930s, when, in the case of United
States v. Curtiss-Wright Export Corporation, the Supreme Court ruled
that executive agreements–between, say, the president of the United States and
the prime minister of another country–had the legal force of a treaty. The
combined implication from the two cases was that the president could bargain
away all or any part of the Constitution. Indeed, by the 1933 Litvinov
Agreement, Franklin Roosevelt agreed to seize and return to the Soviet Union
property of Russian emigres who had become American citizens; he did so, and in United
States v. Belmont and United States v. Pink (1937 and
1942) the Court upheld the confiscations in spite of the due process and just
compensation clauses of the Fifth Amendment. Verily, the president now had a
blank check in the conduct of foreign relations.

After World War II a strong reaction against the perceived abuses of
executive power set in. The adoption in 1951 of the Twenty-second Amendment,
limiting presidents to two terms, was part of that reaction. More to our point
is the amendment proposed by Republican Senator John Bricker of Ohio early in
1952. The Bricker Amendment had three sections: l) that treaties conflicting
with the Constitution should be void; 2) that treaties should become effective
as domestic law only through legislation that would be constitutional in the
absence of the treaty; and 3) that Congress should have power to regulate
executive agreements and that such agreements should be subject to the
limitations on treaties in the second section. At first Bricker received strong
support, and in 1954 the amendment fell just one vote short of the necessary
two-thirds majority in the Senate. As time passed, however, and as the
much-trusted Eisenhower conducted foreign relations in a manner that most
considered acceptable, the amendment’s appeal faded. And then, in a pair of
decisions handed down in 1957, the Supreme Court rendered it moot by ruling
(albeit ambiguously) that treaties are as subject to being declared
unconstitutional as are acts of Congress.

But the most dangerous–or vital, depending on one’s point of view–of
the president’s powers derive not from treaty-making but from his role as
commander in chief. Congress has the exclusive authority to declare war, and it
has exercised that authority with great restraint: five times in two hundred and
twelve years. The president, by contrast, can deploy the nation’s armed forces
anywhere and at any time he pleases. One might suppose that he is restricted by
Congress’ power of the purse, but in practice Congress has been extremely loath
to interfere when troops are placed in danger. (My favorite example involved
Teddy Roosevelt, who sent the Great White Fleet on a round-the-world cruise
despite Congress’ refusal to appropriate the necessary funds, saying in effect
to his admirals that if they got to the western Pacific and ran out of fuel,
Congress would come through with the money, which it did.)

Now, we are all familiar with the Korean and Vietnamese
conflicts, bloody and costly ventures fought without a declaration of war, but
most people assume that those were exceptional cases. They assume wrongly.
Starting with Jefferson and Madison, presidents have repeatedly deployed the
military in alien lands without congressional authorization and often without
congressional approval before or after the fact–a total of more than 200 times.
Most of these military operations were relatively small and could be justified
by some law or another. About a third involved invasions of Latin American
countries to protect the lives or property of United States citizens, some were
retaliatory attacks on remote Pacific peoples who lacked formal governments, and
some were raids to interdict smugglers or slave traders. A number, however, were
large-scale affairs, including the seven times the United States invaded Japan
in the 1850s and 1860s and the war to suppress the Aguinaldo rebellion in the
Philippines, which lasted four years during which 126,000 American troops saw
action and 200,000 Filippinos were killed. Teddy Roosevelt sent troops into
action in Honduras, the Dominican Republic, Syria, Abyssinia, Morocco, Korea,
and Cuba. Woodrow Wilson deplored Roosevelt’s actions, but once in office he
also intervened in the Caribbean republics, invaded Mexico four times, and sent
more than 12,000 soldiers into the Soviet Union as a part of a joint allied
force. All this was done without congressional authorization.

In
reaction against the imperial presidencies of Lyndon Johnson and Richard Nixon,
Congress attempted in the 1970s to handcuff the presidency regarding foreign
affairs. In the summer of 1973 it began to cut off funds for military activity
in Southeast Asia, thus ensuring the subsequent slaughter of millions. Then in
November Congress passed, over Nixon’s veto, the War Powers Resolution, designed
to make future armed ventures the joint responsibility of Congress and the White
House. The resolution stipulated that "in every possible instance" the
president must "consult with Congress" before sending American forces
"into hostilities or into situations where imminent involvement in
hostilities is clearly indicated." If in the absence of a declaration of
war the president should send troops into hostile situations or enlarge combat
forces where they were already stationed, he was required to notify Congress
within forty-eight hours, and if Congress did not vote to approve the
deployment, the forces must be withdrawn in sixty days.

As a gesture, the War Powers Resolution may have been a wholesome
corrective to abuses of presidential power, but as a practical matter it was
ineffectual. Every president from Gerald Ford through the first George Bush took
the position that it was unconstitutional and acted more or less as if it did
not exist. As for Bill Clinton, when he launched his tail-wags-dog raids on an
aspirin factory in the Sudan and an empty terrorist camp in Afghanistan, plus
his bogus war to save Kosovo from the Serbs, he wantonly ignored the War Powers
Resolution. Many critics saw through his ploy, but almost no one in government
protested that he had exceeded his authority.

One is justified in asking whether, in the absence of restraints by
either the Congress or the courts, there are any barriers to the president’s
simply doing as he pleases in conducting foreign relations. The only limit I can
think of is the power of public opinion, and that, though real, is
problematical. Except for the lunatic left, which is concentrated in academia
and the media, Americans are a patriotic people who prefer to believe that
whatever we do in relation to other nations is for the best. They can also see
and comprehend what is happening worldwide, even when the media distort or
decline to report the news. Thus, for example, they understood that Ronald
Reagan’s foreign policy was masterful and that he in fact won the Cold War with
the Soviet Union–as, by the way, did most Europeans–though the media reported
that monumental triumph as if Reagan had had nothing to do with it.

And yet most Americans really don’t care much about what happens
elsewhere in the world, even if our armed forces are off shooting or bombing
somebody. They become seriously interested only if it is somehow drastically
brought home, and the development of smart weaponry together with the
institution of the all-volunteer military has made it increasingly unlikely that
anything short of a genuine world war will cause them to take overseas fighting
seriously. In that sense, popular opinion forms less of a brake on overseas
adventuring than it once did.

On the other hand, our tolerance level has been lowered
immensely, and I do not believe it would require a great deal of inconvenience
to get people out in the streets in protest. When people took to the streets
during the Vietnamese conflict, older Americans were surprised, having been
lulled by the relative unanimity of World War II into believing that Americans
don’t do that sort of thing. They forgot that during every other declared war in
American history large segments of the population objected and did what they
could to sabotage the war effort. In other words, Americans do do that sort of
thing, and they are capable of doing it again. And, on balance, I think that
presidential administrations have more to fear from the people than the people
have to fear from misguided, unchecked presidential power.

What of the future? History suggests that a twenty-first-century
president needs to articulate a coherent and restrained foreign policy that is
clearly in the national interest, which he can then implement with the support
of the American people. Whether that will happen is anybody’s guess.