The New York Review of Books

The following response to Theodore Draper’s article in the March 1, 1990 issue was accompanied by a letter on White House stationery from one of its two authors, the Legal Advisor to the Counsel to the President. In view of the importance of the issues involved, we publish it here in full, notwithstanding its unusual length, Mr. Draper’s reply follows.

—the Editors

To the Editors:

LEGISLATIVE POWER GRAB: THE ANTI-FEDERALIST COUNTERREVOLUTION IN THE

MAKING 1. Introduction

Unlike the parliamentary system, which is predicated upon legislative supremacy, the American Constitution, the fruit of Federalist thought, established a framework of government noted for separation of powers and the independence of the executive branch from legislative control. Since the early 1970s, perhaps as an overreaction to the Vietnam War, the Watergate scandal¹ and, most recently, the so-called Iran-contra affair, a virtual constitutional coup d’état has been unfolding, bringing alive the very fear that motivated the Federalists: legislative usurpation of executive power.² This congressional power grab has been particularly blatant in foreign affairs. The result has been both a fettered executive and a “feeble government” with incoherent policies.

To justify what can only be termed an Antifederalist³ counterrevolution, various pundits and commentators have written a revisionist version of American history. Chief among them is Leonard Levy, who recently opined that the Framers intended the President to be agent of either the Senate or the Congress, since the Executive is empowered only “to carry out or conduct policies formulated by the legislative branch.”⁴ Levy went on to contend that the “Framers intended Congress to control the making and conduct of war, the Senate to control foreign policy, and the President [now get this] to control [merely] the ceremonial functions of representing the nation in its foreign relations, personally or through diplomats.”⁵

Another notable advocate (outside of Congress) of legislative supremacy is New York Times columnist Anthony Lewis, who, whenever any President dares to disagree with him on policy objectives, engages in an ad hominem attack by labeling the unfortunate President in question a “monarchist.” We can now add to the neo-Antifederalist Party the name of Theodore Draper.

In the March 1 edition of this review, Mr. Draper, under the guise of commenting on the “Iran-contra affairs,” attacks the traditional concept of a balanced constitutional government of coequal branches whereby the President executes the law and conducts foreign affairs, subject only to specific congressional checks. He in essence contends that Congress, instead of solely being a deliberative legislative body, has the authority to make policy outside of legislation and, along with the executive, therefore “codetermines” foreign policy. Mr. Draper supports this dubious proposition with an exercise of rewriting history and reinterpreting settled case law that would make even uncle Joe Stalin blush.

1. Understanding the Constitutional Framework

The genesis of Draper’s (and other neo-antifederalists) intellectual model lies in the inability to understand and appreciate the framework and philosophy of government the Constitution created. The primary feature of the American Constitution is its system of separation of powers, undergirded by checks and balances. This system divides power and prevents each branch of the federal government from unduly encroaching on the powers of the others and from trespassing on the rights of the citizenry. To Montesquieu, whom the Framers termed “the oracle,” separation of powers into three distinct branches of government was the very hallmark of liberty: “The accumulation of all powers in the same hands may justly be pronounced the very definition of tyranny.”

To be sure, in creating the separation of powers system the Framers rejected the concept of a rigid functional separation of powers, inculcated in many revolutionary and post-revolutionary state governments, as being ineffectual in checking tyrannical legislative majorities. Instead, they favored a system of separated powers, whereby certain specific and express powers historically belonging to one branch of government were granted to another to “check” the ambitions of the other two. Thus, the President participates in the legislative process both by proposing legislation and through the use of the checking device of a qualified veto. On the other hand, the Senate possesses limited executive power to confirm executive appointments and to approve treaties and the Congress, as a whole, has the constitutional authority to declare war (historically an executive prerogative) and the further check of impeaching executive and judicial officials.

Consequently, it was never intended that power be placed concurrently in two or three branches of government.⁶ Each branch possesses specific duties and responsibilities. In other words, powers of the branches do not overlap; there are no “shared powers.” Indeed, Professor Corwin, whom Mr. Draper is fond of quoting, stated that 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 unworkable⁷ ).

Despite Draper’s musings, it is clear that the Framers placed a general foreign policy power in the hands of the Executive, subject to specific but limited congressional checks. This does not, of course, amount to an assertion of a “Presidential monopoly of foreign policy”—a strawman created by Draper. The principal textual foundation for the President’s discretion to act for the nation in foreign affairs is found in Article II, Section 1 of the Constitution, which ordains that “[t]he executive Power shall be vested in a President of the United States of America.”⁸ Although the exact parameters of executive power are not precisely defined,⁹ the weight of historical evidence indicates that, at the very least, it includes a foreign affairs power—the sole authority to represent the United States in dealings with other nations—and a discretionary power, sometimes termed the “prerogative,” which includes both a broad authority to meet national exigencies by acting for the public good and a residual power that encompasses all authority not expressly delegated to the other branches of government. This conception of executive power may in part be traced to the teachings of Locke, Montesquieu, and Blackstone,¹⁰ and the early history of the United States.

Although there was little debate at the Philadelphia Constitutional Convention concerning the intrinsically executive character of foreign affairs powers,¹¹ the delegates initially allocated specific foreign affairs powers, including the treaty and war-making powers, to the Senate or to the Congress as a whole. This was to be expected inasmuch as both the Continental and Confederation Congresses had wielded, albeit rather ineffectually, certain traditional executive powers, including some (but not all) of the British Crown’s foreign affairs prerogatives. Nevertheless, a fear that the Senate would become an aristocratic body that would dominate the new federal government led the delegates to divide foreign policy power between the President, the Senate, and Congress as a whole.¹²

Thus, 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 to regulate commerce.

The Philadelphia Convention left to the Committee of Detail the task of establishing the specifies of the national government including the definition of executive power.¹³ Influenced by the Pinckeny plan, the final Wilson draft¹⁴ of what became Article II of the Constitution vested the general executive power in the President alone. The Committee of Style ultimately adopted this general grant of power to the Executive, but limited legislative powers to those “herein granted” (or enumerated) to the Congress¹⁵ and likewise limited judicial power to an enumerated set of cases and controversies.¹⁶ In other words, the enumerations of powers were intended to be exhaustive in Articles I and III, but not in Article II. The general vesting clause of executive power in Article II simply granted in the executive alone whatever executive power that might be inferred from any part of the Constitution. The Executive Power Clause “admitted an interpretation of executive power which would give to the President a field of action much wider than that outlined by the enumerated powers”¹⁷ contained in Article II. That field of action includes both the discretionary prerogative and any residual powers. This prerogative power is therefore grounded in the Constitution as an inherent power of the Presidency. Even Thomas Jefferson, who generally was disinclined to acknowledge the existence of implied presidential powers, recognized the presidential prerogative over foreign affairs when he stated, “[t]he transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the senate. Exceptions are to be construed strictly….”¹⁸

Draper’s argument that there is some significance to the fact that more space in the Constitution is taken with describing congressional powers bearing on foreign affairs than in describing executive prerogatives is greatly mistaken. The argument that more words in the Constitution means more power appears absurd on its face, but is routinely made by the proponents of legislative supremacy.¹⁹ A major reason for the enumeration of Article I powers was that the catalogue of congressional powers was significantly altered and expanded from those of the Continental and Confederation Congresses, and, in the Framers’ judgment, a new listing of powers would reduce confusion over Congress’s new responsibilities.²⁰ The enumeration was also dictated by the stylistic needs of the draftsmen. In several instances, they wished to limit congressional powers, and thus such powers had to be made more explicit.²¹ A permutation of the flawed “more words, greater powers” argument is the claim of alleged brevity and incompleteness of the constitutional allocation of foreign affairs powers. As Harold Koh, a Yale professor oft-cited by Draper, has remarked:

At the heart of the problem lies the Constitution’s astonishing textual brevity regarding the allocation of foreign affairs authority and obligations among the branches. Far from resolving most debates over which institution may take the lead in the conduct of foreign affairs, reference to the constitutional text merely opens them.²²

This argument is also specious.

1. History as a Guide to Interpretation

Mr. Draper argued that historical sources other than the text of the Constitution and the records of the Convention do not indicate that the President has a foreign policy prerogative. However, until the recent wave of neo-Antifederalist revisionism, it had been generally accepted that executive power does include a plenary power over foreign affairs.

The exclusive authority of the President in foreign affairs was asserted by the nation’s first President, George Washington. Without consulting Congress, President Washington issued a proclamation declaring that the United States would remain neutral in the war between France and Great Britain.²³ Writing under the pseudonym “Pacificus,” Alexander Hamilton undertook a constitutional defense of the proclamation. Hamilton argued that all powers which are executive in nature, such as the power to direct foreign policy, belong to the President by virtue of the first clause in Article II: