Foreign Policy and Original Intent: The Powers of the President





10-22-12

Ray Raphael is the author of "Mr. President: How and Why the Founders Created a Chief Executive" (Knopf, 2012).


Scene at the Signing of the Constitution of the United States, Howard Chandler Christy, 1940.

Would President Romney or President Obama take us to war with Iran or Syria?

Not if Charles Pinckney, a South Carolina delegate to the Constitutional Convention in 1787, has anything to say about it. The first speaker to address the question of an independent executive at that momentous gathering, Pinckney proclaimed he was fervently in favor of a “vigorous Executive,” but not with powers that extended “to peace & war &c.” That, he feared, “would render the Executive a monarchy, of the worst kind, to wit an elective one.”

Most delegates agreed, but not Pinckney’s colleague from South Carolina, Pierce Butler. The first full draft of the Constitution, the Committee of Detail report of August 6, stated that only Congress would have the power “to make war,” but Butler protested. Congress, even if it were in session, would need to discuss and deliberate, whereas the president could act quickly and decisively. While this was a strong argument, Butler’s proposal to vest war-making powers with the president found no supporters. Elbridge Gerry “never expected to hear in a republic a motion to empower the Executive alone to declare war.” Oliver Ellsworth argued that allowing one man to lead the nation into war made war too easy: “There is a material difference between the cases of making war and making peace. It should be more easy to get out of war, than into it.” George Mason, too, was “for clogging rather than facilitating war; but for facilitating peace.”

While Butler’s radical notion was soundly defeated, he did pose one salient question: How could the nation defend itself against an invasion if Congress was not in session? Gerry and James Madison offered a simple semantic solution. Congress would be granted exclusive authority to “declare” war, not “make” war, thus “leaving to the Executive the power to repel sudden attacks.” This decision, precise but not insignificant, confirmed the overarching sense of the convention. The president could act in an emergency, but only Congress could set policy and commit the nation to a long-term expenditure of blood and treasure.

What about the power of peace? Should that too rest with Congress?

Again, the Committee of Detail shied from involving the president. The Senate, it stipulated, would have the power to make treaties and appoint ambassadors. On September 4, less than two weeks before the close of the Convention, a different committee shifted those powers to the president, and on the floor weary delegates went along with this. Even so, the president would need the “Advice and Consent” of the Senate for both treaties and appointments. The president did not possess the unfettered authority to set foreign policy.

Constitutional checks on the president would soon be tested, however. Shortly after President Washington assumed office in 1789, the First Federal Congress established parameters for the rest of the executive department. Its first office, a secretary of foreign affairs, was to be appointed by the president with the “Advice and Consent” of the Senate, but immediately a problem arose. Could the president, on his own authority, remove a secretary of foreign affairs, or would he need senatorial approval for that as well? The Constitution was silent on that matter, but in a hotly contested debate, with “the history of mankind” and “the future happiness or misery of the people of America at stake,” Congress decided that the president could dismiss the secretary on his own discretion, and ambassadors as well. With this one move, the balance of power over foreign policy shifted dramatically.

Less than a month later, President Washington wanted to conclude a treaty with Native nations, but to do so, according to Constitutional constraints, he would need both the advice and the consent of the Senate. Dutifully, the president entered Senate chambers and presented the facts of the case. As senators who were not fully versed in the subject discussed and debated the complex issues involved, Washington sat awkwardly on the sidelines. Never again would he venture into Senate chambers on such a mission. He and his ambassadors would negotiate treaties with no more than passing senatorial advice and hope for consent at a later date.

In 1793, with Britain and France at war once again, President Washington declared that no Americans should give assistance to either belligerent. By what authority could he do that? Several congressmen, James Madison included, protested that the Constitution authorized Congress, not the president, to decide how to engage with other nations in matters of war and peace, yet that did not convince Washington to rescind his proclamation.

In 1796, when the House of Representatives asked President Washington for papers regarding a treaty that John Jay had just negotiated with Britain, Washington, for the first time, invoked executive privilege. If he handed over any papers, he stated, he would do so solely on his own discretion, not to comply with some demand.

By the end of Washington’s administration, the trajectory was clear. Despite the framers’ fears, the president would take the lead on matters of “peace & war &c.”

Fast-forward across the centuries. Who has such powers now?

Congress has not declared war since World War II, seventy-one years ago. The two longest wars in our nation’s history, in Vietnam and Afghanistan, were not declared, and perhaps Congress will never declare war again on a nation-state. Instead, the president declares a “war on terror” and that justifies military action across the globe. Functionally, in current times, the president alone possesses the power of war, despite Pinckney’s apprehension and the original intent of the framers. The War Powers Resolution of 1973 was meant to mitigate that fact, but to little avail. Presidents routinely ignore it.

But what of the power of peace? From the president’s point of view, that is more problematic. Contrary to the wishes of Ellsworth, Mason, and other framers, peace is more difficult to achieve, requiring the assent of two-thirds of the Senate. That Constitutional stipulation is still very much in place. Think SALT II, think Kyoto, think cap-and-trade–none of which could clear the two-thirds hurdle in the Senate. If sweeping treaties for the betterment of the world required only a simple majority, the nation’s foreign policy might be more internationalist than it is. The requirement for a super-majority in a sharply and evenly divided political landscape works against the most peace-loving president.

Politically, war is on the table but peace less so. Presidential candidates debate who is more likely or less likely to commit the nation to a military conflict, but complex issues involving multi-national cooperation, which cannot be reduced to sound-bites, get scant attention because everybody knows a resultant treaty will not be ratified. Any political issue now requiring a super-majority faces a hurdle more formidable than the framers imagined. Then, they assumed a rational argument could produce the required numbers; now, we know that partisan self-interest effectively precludes such an outcome. If one side wants it, the other doesn’t–it’s our default political dynamic.

Who, then, will ever negotiate the peace to terminate the global “war on terror”? A president, for all the powers of the office, can magnify that war but never end or even sharply diminish it. It’s a way of life, and it cements the president’s power over matters the framers of the Constitution never intended the office to possess.


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