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The Constitution Still in Danger: An Exchange

To the Editors:

It is a shame that Mr. Draper did not heed Goethe’s admission that “no one would talk much in society, if he knew how often he misunderstands others.” If he had, the tenor, length and substance of his May 17, 1990 reply to our defense of the Presidency in this journal would have been far different [“The Constitution in Danger: An Exchange”]. The crux of Mr. Draper’s lamentation, that we supposedly advocate a ” bifurcated presidency’—one that shares power with the other two branches of government in domestic policy but rejects the sharing of power in foreign policy”—is quite misleading. What we (and countless other commentators) do espouse is fidelity to the central principles of constitutional government, as designed by the Framers—a system of separated powers, featuring an equilibrium amongst its components. This equilibrium is maintained primarily through a device of checks and balances, whereby each coordinate branch of government has constitutional tools at its disposal to protect itself against the ambitions of the other branches. In fact, the form of government devised by the Framers may owe as much to their study of Newtonian theories of counterpoise, as to their analysis of political philosophy and history.

As we stated, in this scheme the Constitution delegates to each branch of government specific and distinct duties and functions. In the realm of foreign affairs, we pointed out that the President possesses a “general” foreign policy power, which is discretionary, designed to meet the challenges of unforseen necessities, and thus by nature must be undefinable in its parameters. Derived from the vesting clause of Article II, section 1 of the Constitution, this foreign policy power is nothing more than a constitutionalized version of the Lockean prerogative, which certainly encompasses the right to initially set foreign policy, including the plenary (unfettered) right to negotiate and deal with foreign powers—the diplomatic representational authority—as well as the ability to respond to the exigencies of international life, if necessary, through covert intelligence operations and military actions.1

Despite Mr. Draper’s contentions, we never suggested, much less maintained or urged, that Congress play no foreign policy role. In fact, we enumerated those powers historically considered to belong to the Executive that were left to Congress by the Philadelphia Convention. The Framers thought that these were powers that were legislative in nature, at least as far as the republicanized Executive was concerned. Accordingly, these powers found their way in Article I’s laundry list of legislative authority.2 Perhaps the most important of these enumerated legislative powers is Congress’s authority to declare war. Even more important, however, as Mr. Draper rightly points out, is Congress’s checking power, particularly the “power of the purse” and the impeachment power. Such authority, when legitmately used,3 obviously may thwart a presidential policy.

Yet, all this does not mean that there exist “shared powers”—shared, in the sense of the branches of government possessing the very same powers or authority. Understandably, the term “shared powers” is one of the most confusing in constitutional jurisprudence. Mr. Draper’s discourse on the subject, unfortunately, muddles the issue even further. Draper, for example, cites Richard Neustadt as observing that the Philadelphia Convention “created a government of separated institutions sharing powers,” and that the “three branches share a responsibility for policy, though in different ways, and must cooperate in working it out.” In a certain sense this is true; but it in no way contradicts our premise. The Constitution, we contend, created in particular areas a regime of distinct branch responsibilities and prerogatives. Indeed, if that were not the case, our government could not function. As we originally stated, “a system of shared or overlapping powers would be one of constitutional anarchy (a possibility the highly rational and educated Framers would have rejected as unworkable).”4 To be sure, the distinction between branches of government sharing an identical set of constitutional powers that can be freely mixed and matched according to the political whims of the moment, and the same branches of government possessing distinct and separate powers that may bear upon the same object of governance (e.g., war), is subtle—although it should be evident to a person of Draper’s erudition. The term “shared powers” is too often used sloppily, as a shorthand for the “checks and balances” that require each branch to cooperate with the other. The existence of checks and balances, however, does not imply that each branch has the very same rights and responsibilities.

Why is this debate over the semantics of the term “shared powers” so important? Far from being a mere academic quibble, Mr. Draper’s advocacy of the shared powers doctrine as one requiring both political branches of government to possess the same powers rejects the core constitutional notion that the President possesses the general foreign affairs prerogative. In contrast, we, and numerous other students of the Constitution, believe that the Constitution textually and historically delegates this power to the unitary Executive. To put the revolutionary import of Mr. Draper’s claim in perspective, it would suffice to point out that he denies the President the predominant role in foreign policy decisionmaking that virtually every President has claimed. In essence, the Draper doctrine would elevate the 535 members of Congress to the position of juniorvarsity Secretaries of State and would require executive consultation with Congress, regardless of the need for secrecy, dispatch and national security, in virtually all foreign policy matters—an outcome that would be disastrous and historically anomalous.5

Mr. Draper’s philippics against our argument that historical events and case law support the view that the President possesses a plenary foreign affairs power, amply demonstrate William James’s axiom that “there is no worse lie than a truth misunderstood.” We will only address the most glaring examples:

  1. The assertion that Alexander Hamilton in the “Pacificus” articles never contended that the President possessed a plenary foreign affairs power, and in fact “gave expression to an early version of ‘shared powers”’ (Draper’s words) is nothing less than incredible. Hamilton was the primary advocate of a strong executive in the early years of our Republic and the “Pacificus” articles amply demonstrate this. Hamilton contended that Article II, Section 1 of the Constitution vested all executive power (including the general foreign policy and diplomatic prerogatives) in the office of the President “subject only to the exceptions and qualifications which are expressed in the instrument.”6 One of these exceptions is Congress’s power to declare war. However, no matter how important the power to declare war may be, this exception does not in any way, as Mr. Draper contends, negate the fact the President possesses a general foreign policy power. In addition, the fact that Congress passed a neutrality act in 1794, one year after Washington’s neutrality proclamation, is of little importance to our debate. That act was directed at private citizens and could not constitutionally have restricted the President’s ability, when exigencies arose, to command the US armed forces to prosecute a limited, undeclared war.

  2. Concerning the meaning of the phrase “sole organ” of foreign relations, Draper states the obvious when he notes that the phrase refers to the instrument of communication between the United States and foreign powers. But this does not end the debate. The President cannot be considered a mere conduit of information, the agent for the legislative power. To consider the Executive the agent of Congress would be to adopt the view that the Framers created a parliamentary system of legislative sovereignty—a view which simply ignores history. (See The Federalist.) The President is the “sole organ” of foreign relations not simply because he is a more effective mouthpiece than Congress, and there is a need for the nation to speak with one voice, but because he possesses a general foreign policy prerogative.

  3. Mr. Draper still fundamentally misunderstands the implications of the Youngstown case,7 as well as our sole reason for invoking it. Our intent was to rebut Draper’s own contention that, because Youngstown‘s plurality, concurring and dissenting opinions failed to refer to the Curtiss-Wright8 doctrine, they somehow invalidated it. The notion that Curtiss-Wright died through neglect is simply untrue; the case has been cited by a number of subsequent Supreme Court decisions. As we pointed out, it was because the Youngstown analysis is applicable only in the domestic context that the case did not refer to Curtiss-Wright‘s analysis of the President’s prerogatives. Interestingly enough, Corwin, whom Mr. Draper so evidently venerates. wrote an article,9 chastising the Youngstown Court for failing to acknowledge that in times of national emergency the President may possess an inherent constitutional prerogative to override inconsistent statutory proscriptions—even in a domestic context. Despite our alleged excessive pro-executive zeal, we do not go as far as Professor Corwin in this context.

  4. As for Helms’s critique of the Moynihan amendment, Mr. Draper also seems to be thoroughly confused about our discussion of what the power of the purse is, and is not. To begin with, as we stated above, congressional appropriations power is not absolute, and may not be used to impede the exercise of the core functions of the Executive or Judicial Branches. This, of course, only applies to US moneys appropriated by Congress. The issue of third-party funding of various foreign policy causes is quite separate and distinct. Clearly, Congress cannot prohibit such Presidential activities as imploring one foreign country to help another foreign country or foreign movement, whether with money or any other form of help, no matter how offensive the Congress might find that country or movement to be. To argue otherwise, would imply that, far from being even a congressional co-equal, the President is a mere agent of Congress. Equally clearly, if the foreign funds are turned over to the United States, they would become US government property, and would be subject to any legitimate restrictions Congress saw fit to impose. A more complex situation arises when foreign funds are neither transmitted directly to a foreign recipient, nor to the United States government, but some Executive Branch officials appears to have the ability to influence their disposition. Arguably, in this situation, the dispositive issue would be whether, under common law principles, the degree of control exerted by the Executive Branch officials involved would suffice to vest title to the funds in the United States.10

Despite our fundamental disagreements with Mr. Draper, we all concur that the constitutional issues involved are highly important, especially as our country enters the twenty-first century, replete with both international opportunities and challenges to our national security. We salute Mr. Draper for performing a valuable public service by helping to focus a spotlight on the foreign policy powers of the President in the American constitutional system. We hope that these exchanges have helped to illuminate for your readers the issues involved.

Lawrence J. Block
Senior Attorney-Advisor
Office of Policy Development
Department of Justice
David B. Rivkin, Jr.
Legal Advisor to the Counsel to the President

The views [published above] are solely those of the authors and do not necessarily represent the position of the White House, Department of Justice or of any other agency of the United States Government.

To the Editors:

Theodore Draper [“The Constitution in Danger,” NYR, March 1] has so ably demolished the spurious constitutional points advanced by the two senior attorneys in the Bush Administration that there is no need to retrace his arguments. There are, however several misconceptions in their lengthy essay which frequently arise in discussions with those of their point of view that should be addressed. The first which I want to analyze is that “political motives” necessarily discount the substance of arguments made by those in the political arena. It is ironic that this point is made by two members of this Administration.

In their essay, Block and Rivkin state that “many noted historians have indicated that Madison’s position (on presidential power in foreign affairs) was based purely on his political motives as head of the new opposition Democratic Republican Party. Madison’s rejection of inherent executive power in the Helvidius letters contradicted his earlier expansive view of presidential authority which he advocated as Publius in The Federalist and further articulated in the House of Representatives floor debate over the removal power. The letters of Helvidius were not a product of constitutional judgment on Madison’s part; rather they were prompted by the fact that both he and Jefferson were displeased with President Washington’s failure to assist France in its wars with Great Britain.”

My first comment is that there is nothing inconsistent in Madison’s arguing for strong executive power in the debate on the removal power, a function of the President’s executive or administrative responsibilities, and in his general references to this power in The Federalist; while, on the other hand, warning against an independent and despotic foreign policy in the Helvidius letters. Madison’s reasoning in the House debate was that the right to remove a member of the President’s executive family was essential for an executive who was to be held accountable to the Congress and the people in the final analysis. Madison certainly believed in a strong executive, but this is a far cry from advocating “exclusive presidential control over foreign relations.” which is the position taken by the two representatives of the Bush Administration. Draper’s rejoinder quickly disposes of this inflated claim. I am very concerned, rather, with discounting the “political motives” of arguments honestly advanced by Madison and Jefferson. Their views on the President’s foreign policy powers are rejected on their face because they are reputed to be “motivated” by “purely political” interests, and not to be taken seriously because of this. What nonsense. Of course James Madison and Thomas Jefferson were political animals in the Aristotelian definition of this term, as are all presidents and elected officials, including Block and Rivkin’s employer, President George Herbert Bush. How else could they arrive in their positions of power in the political process if it were otherwise? Only those who dwell in the Peter Pan world of fantasy could believe that it could or even should be anything different.

We have never had saints or abstract philosophers as statesmen, and God help the Republic if we ever should. But there is a difference in thinking and acting politically within a political process, and narrowing all decisions to “purely” partisan political interests. Although Bush’s plea to “read my lips” certainly contained a substantial element of partisan or electoral political motivation, I would be the last to argue that he thought only of these advantages, and had no convictions that the policy of no new taxes was also in the public interest. To think politically embraces a wide range of considerations, and is not simply reduced exclusively to self serving objectives. Those who stoop to such narrow considerations don’t usually last long in the real political world. And most assuredly, Madison and Jefferson were not of this ilk.

The truth is that all our leaders and Presidents have thought and acted politically, the better and great ones more than the others. When they lost their political sensibilities, as Jefferson did in the long Embargo struggle, or Woodrow Wilson did when he refused to compromise in the Lodge conditions in the Senate fight over the Versailles Treaty, they not only suffered humiliating defeats, but the public interest was even more severely damaged. Leaders and Presidents must be “politically motivated” and oriented, or else they operate against the system or outside of it, and the welfare of the country is not well served by such behavior

On the other hand, too great an emphasis upon political electoral goals can run amuck, as they did in the recent presidential campaign. The beauty of our Constitution with its checks and balances is that it normally corrects such methods in good time. Our history records many such adjustments.

The other critical factor in de-mythologizing the Presidency is to emphasize that almost all Presidents—particularly the important and great ones—are inclined to maximize their power; in other words to utilize as much power in the office as they can get away with. Despite his ideological devotion to legislative power, Thomas Jefferson initiated this tendency, when he became President, and his successors, particularly Jackson, Lincoln, Wilson and the two Roosevelts, followed in his footsteps. This thirst for power in Presidents is born of their frustration with our legislative process which political scientists have compared to an obstacle course. Jefferson once suggested that Congress was very much like “a rope of sand.”

It is not an easy obstacle course to overcome, but our most successful presidents have achieved their goals by recognizing the legitimate power of Congress, and discovering ways of coming to terms with it. At an extreme, this might involve going over the heads of Congress and appealing to the people.

But ignoring Congress and constructing covert “end around” efforts to avoid the process can easily run amuck as Cambodia and Iran-contra demonstrated. The checks and balances of our constitutional system stand (or should stand) as a bulwark against such a dangerous despotism.

What Messrs Block and Rivkin don’t understand is that there is a world of difference between legitimate presidential leadership, without which our complex system will not function, and illegitimate presidential despotism which is destructive to democracy and can only lead to disaster. Our constitutional system of checks and balances is our only real guardian against this condition, and we should strengthen it rather than attempt to weaken its legitimate functions.

William M. Goldsmith
Providence, Rhode Island

Theodore Draper replies:

Block and Rivkin are now trying to cover a forced retreat. In their anxiety to save face, they have not made it easy for anyone who does not fully recall what they originally wrote. Here were their earlier words:

Each branch possesses specific duties and responsibilities. In other words, powers of the branches do not overlap; there are no shared powers.

Now they have changed the terms of the debate to such an extent that they have become virtually unrecognizable. Here is the new dispensation:

Yet, all this does not mean that there exist “shared powers”—shared in the sense of branches of government possessing the very same powers or authority.

Notice the verbal sleight-of-hand. Shared power had previously meant for them that “powers of the branches do not overlap.” Now it means that the branches do not possess “the very same powers or authority.” But overlapping and sameness are very different concepts. Their new definition of “shared powers”—the crux of the matter—implicitly repudiates their previous position.

They cannot so easily escape from the logic of Richard Neustadt’s formulation. I cited it to show that the idea of “shared power,” which they had utterly denied, was not original with me. Now Block and Rivkin admit that separated institutions can share power, “though in different ways,” which simply means that their powers in some sense overlap, even if they are not identical. The very notion of sharing means that the power of one impinges on the power of the other.

But Block and Rivkin will not leave well enough alone. They grudgingly admit that Neustadt is of course right but only “in a certain sense” and in no way contradictory to their original premise. This premise was that “a system of shared or overlapping powers would be one of constitutional anarchy.”11 Again they spoil their concession by going back to the straw man of “each branch has the very same rights and responsibilities.” Somehow they cannot get it into their heads that the branches do not have to be the same or possess exactly the same powers to intersect and participate—in different ways—in both foreign and domestic policy.

Another of Block and Rivkin’s all-purpose evasions is their reliance on the presidential prerogative of “general foreign policy.” If this means that the president’s range of action extends to the entire field of foreign policy, sometimes exclusively, there is no argument. It does. But if it is taken to mean that he has a monopoly of foreign policy, it is a deception and smuggles in their old bias against the sharing of foreign policy. The word “general” is too ambiguous to settle this matter, unless it is carefully defined, which Block and Rivkin carefully fail to do.

The reason this issue is so pressing is that we have been thrust into a series of presidential wars, the latest of which took place in Panama. Since the power to make war is the ultimate test of foreign policy, it is also the ultimate test of the president’s power in foreign policy. Now we are told by Block and Rivkin that that power extends only as far as “the President’s ability, when exigencies ar[i]se, to command the US armed forces to prosecute a limited undeclared war.”

This statement merits some reflection. In the first place, it limits the president’s power to “a limited undeclared war,” not to all wars. That is already recognition that there are wars which he does not have the constitutional power to wage on his own. But the command of US armed forces is not the same as the power to initiate a war.

Nor do they tell us what “a limited undeclared war” entails. Is it any war that a president chooses to consider “limited” and therefore may be waged “undeclared?” The Constitution does not distinguish between “limited” and “unlimited” wars. In fact, some of our “limited undeclared wars” have had very flexible, extensible limits. President Truman started a “police action” in Korea, which lasted three years, cost over 60,000 dead American soldiers, a total of almost 160,000 casualties, and ended inconclusively. President Johnson started a “limited undeclared war” in Vietnam, on the flimsiest of pretexts, and it lasted eight years, with well over 60,000 American soldiers killed, over 200,000 American casualties, untold suffering in the country we were fighting to protect, and ended disastrously.12 In the case of the recent invasion of Panama, the “exigencies” which allegedly brought it about were concocted in Washington and cannot stand serious investigation—which has been notably lacking in the American media.

At every turn, Block and Rivkin trip themselves up and cannot sustain their major thesis. There remains only to deal briefly with some specific aberrations:

  1. Hamilton may have advocated a strong executive but never one with “a plenary foreign affairs power.” Plenary means “full; complete; absolute power.” Besides, Hamilton said different things at different times, and is hardly the last word on this or any other constitutional issue. Why is James Madison, “The Father of the Constitution,” totally wiped out of the Block-Rivkin historical memory?

  2. Block and Rivkin try to save their use of the phrase “sole organ” by appealing to “a general foreign policy prerogative.” Enough said on this one.

  3. It is simply untrue that I ever embraced “the notion that Curtiss-Wright died through neglect.” In fact, I suggested it was too bad that Curtiss-Wright had not died from neglect.

  4. The issue conforming Senator Helms was precisely that of third-party funding. It was not merely one of “imploring one foreign country to help another foreign country or foreign movement.” It was one of imploring a foreign country to provide funds for the express purpose of contravening a law which the Congress had passed and the President had signed. It was the present secretary of state, James Baker, who then held that “we could not do indirectly what we could not do directly.”

I regret that I cannot end by paying any tribute to Block and Rivkin. I do not think they have served to illuminate the issues of presidential power, and I sense they are still trying to get away with the same bias against real sharing that they exhibited more dogmatically and arrogantly in their previous pronouncement.

Solicitious of my education, Block and Rivkin advise me to read William Goldsmith’s three volumes on The Growth of Presidential Power (Chelsea House, 1983). I happen to be well acquainted with this excellent work by an old colleague of mine. I commend to Block and Rivkin his unsolicited letter, published above, and trust they will benefit from it.

  1. 1

    For a further discussion of the President’s general foreign affairs power, including the recognized authority to engage in limited, defensive, non-declared warfare, as well as the inherent executive authority to withhold information from Congress for reasons of national security, see A. Sofaer, War, Foreign Affairs and Constitutional Power (1976). For a discussion and exposition of the President’s inherent authority to direct covert and intelligence operations, see L. Block and D. Rivkin, “The Battle to Control the Conduct of Foreign Intelligence and Covert Operations: The Ultra-Whig Counterrevolution Revisited,” Harvard Journal of Law and Public Policy, Vol. 12, No. 2 (1989), pp. 303–305 (which contains a more detailed version of our paradigm of the balanced constitutional framework than appeared in the May 17 edition of this review).

  2. 2

    In that regard, as we stated:

    treaties are made by the President with the advice and consent of the Senate, ambassadors are appointed by the President, again with the advice and consent of the Senate, but the President has sole authority to receive foreign dignitaries. The Congress has the sole power to declare war, but the President alone is Commander-in-Chief of the armed forces. Congress was given the king’s prerogative to grant letters of marque and reprisal, to raise and support armies, to provide and maintain a navy, to make rules for the regulation of land and naval forces, and regulated commerce.

  3. 3

    To be sure, as is the case with all constitutional authority, Congress’s power of the purse is not unlimited. Thus, the Supreme Court in United States v. Lovett, 328 US 303 (1946), recognized that Congress may not use the power of the purse to indirectly subvert provisions of the Constitution. Therefore, for instance, Congress could not condition the funding of federal judges’ salaries on judges not holding acts of Congress unconstitutional. Nor may Congress, likewise, use the power of the purse to prohibit indirectly the President from exercising his veto power or his constitutional prerogative, such as negotiating with a foreign potentate, by placing conditions on the use of appropriated funds. This point is acknowledged by one of today’s preeminent constitutional scholars, Louis Henkin. See Henkin, “Foreign Affairs and the Constitution,” Foreign Affairs, Vol. 66 (Winter 1987–1988), pp. 284, 297.

    Congress, however, may refuse to fund a war, bankroll a particular strategic weapons system, or build new aircraft carriers. The distinction between refusing to appropriate money and seeking to attach improper conditions to appropriations is of great importance; otherwise Congress could employ the power of the purse to usurp all executive and judicial authority. For an excellent discussion of the limitations on the Congressional power of the purse, see, e.g., Turner, “The Power of the Purse: Controlling National Security Policy by Conditional Appropriations,” paper delivered to a Symposium on Congress, the President, the Judiciary, and National Security: A view from the Bicentennial of the Constitution, sponsored by the National Defense University (November 20, 1987).

  4. 4

    Thus, it was that Professor Corwin wrote:

    It is clear all through the Constitution, and has never been disputed, that the intention was to distribute the powers of the Government between its three branches subject to such checks as the veto of the President or advice and consent of the Senate; and not to place any given power in two or all three branches of the Government concurrently.

    The existence of the same power for the same purposes in both the legislative and executive branches of the government might lead to most unfortunate results. For instance, if the legislative and executive branches both possessed the power of recognizing the independence of a foreign nation, and one branch should declare it independent while the other denied its independence, then, since they are coordinate, how could the problem be solved by the judicial branch?

    E. Corwin, The President’s Control of Foreign Relations 36 (1917): Mr. Draper was correct in noting that, for this proposition, we incorrectly cited Corwin’s The President: Office and Powers (1984). We should, instead, have referred the reader to his The President’s Control of Foreign Relations. For this inadvertent oversight we apologize.

  5. 5

    We wish Mr. Draper would have simply glanced at any of the Corwin volumes on the Presidency or the Sofaer work cited above. If he had, he would have found that his “so-called Block-Rivkin apologia” for the President’s plenary power (as Mr. Draper puts it) is not novel, much as we would have liked to wrap ourselves in the mantle of originality. In fact, it is nothing more than the well-accepted traditionalist version of the separation-of-powers doctrine. Draper would also find William Goldsmith’s The Growth of Presidential Power (1983) (three volumes), Louis Henkin’s Foreign Affairs and the Constitution (1972), as well as countless general history books illuminating.

  6. 6

    E. Corwin, The President’s Control of Foreign Relations, p. 12. (emphasis in original).

  7. 7

    Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952).

  8. 8

    United States v. Curtiss-Wright Export Corp., 299 US 304 (1936).

  9. 9

    See Corwin, “The Steel Seizure Case: A Judicial Brick Without Straw,” Columbia Law Review, Vol. 53, No. 1 (1953), pp. 52–66.

  10. 10

    For an excellent discussion of these issues, see van Cleve, “The Constitutionality of the Solicitation and Control of Third Country Funds for Foreign Policy Purposes by United States Officials Without Congressional Approval,” Houston Journal of International Law, Vol. 11, No. 1 (1988), pp. 69–82.

  11. 11

    Block and Rivkin’s original reference to Corwin was admittedly incorrect. Their present reference is not much better. Corwin was referring to “the existence of the same power for the same purposes in both the legislative and executive branches of the government.” He said nothing about “constitutional anarchy,” only “unfortunate results.” Here, again, Block and Rivkin insist on confusing “the same power” with sharing power “in different ways.”

  12. 12

    General Alexander M. Haig said this about how the Vietnam war started: “President Johnson was led to believe [my italics] that we had a destroyer under North Vietnamese attack [in the Gulf to Tonkin]. He ordered Bob McNamara, for whom I worked at the time—he was then Secretary of Defense—to launch counteractions.” Johnson made a television broadcast declaring his undeclared war three or four hours before the first US bombs hit a North Vietnamese vessel in retaliation. See Chief of Staff, edited by Samuel Kernell and Samuel L. Popkin, with a foreword by Richard E. Neustadt (University of California Press, 1986), pp. 42–43.

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