Sebastian Awatramani

The Imperial Presidency

Questions regarding the extent of the Executive’s control over war making powers plagued the Institution even before the Constitution defining it was ratified. George Clinton, writing in Cato #4, decried the rights afforded to the Executive under the Constitution as drafted at the Constitutional Convention. Among his objections sat the Executive’s seat at the head of the Army and Navy, which when combined with his others powers caused Clinton to ponder whether “the exercise of these powers therefore tend either to the establishment of a vile and arbitrary aristocracy or monarchy.” Alexander Hamilton, writing in Federalist #69, rebuked Clinton’s concern. It is true that the Executive is the commander of the militia, he noted, but he will only have the “occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union.” Hamilton argued further that while the power of the British King “extends to the declaring of war and the raising and regulating of fleets and armies,” the American Executive merely controls the “command and direction” of the armed forces, as the power to declare war was firmly rested in Congress by the War Powers Clause in the United States Constitution[1] .

Exemplary of the merit of Clinton’s concerns are the actions of war time Executives during the Vietnam and Iraqi invasions. As we will see throughout this paper, the delineation between the war making powers afforded to the respective branches has been punctually eroded, resulting in an unconstitutional transference of power from the Legislative to the Executive, contravening Hamilton’s assurances of a limited Executive, and underscoring Clinton’s fears of a one monarchical.

The conflict in Vietnam spanned multiple decades and Executives, having begun under Eisenhower in the 1950s and finally ending under Ford in the 1970s. While Lyndon B. Johnson will be our main focus, a brief history of Vietnam will be helpful in setting our mental stage.

Eisenhower took office toward the end of the First Indochina War, a war of Vietnamese independence against their colonial French occupiers. France had requested American assistance against the Vietnamese rebellion, and this put Eisenhower in a precarious position, with tension in both the domestic and foreign arenas. Domestically, and on the one hand, Eisenhower had campaigned for the Republican nomination against a policy of containment, and for a policy of liberation [2]. On the other, by the time France had asked for assistance, Eisenhower had undertaken no wars of liberation, and in fact his most popular act to date had been achieving peace among the Koreas.[3] There were concerns too with regard to American prestige and Eisenhower’s legacy. Eisenhower biographer Stephen Ambrose notes, “Republican orators had been demanding to know, ever since 1949, ‘who lost China?’ Could [Eisenhower] afford to allow Democrats to ask, ‘who lost Vietnam? He told his cabinet he could not.”[4]

Compounding domestic tensions were global concerns. Ambrose notes that the French were “holding their own, but barely,” [5] and the war continued to drain French resources such that if it continued, they would never be able to meet their NATO obligations—circumstances which Eisenhower found disconcerting. On the other hand, Eisenhower recognized that a ground campaign in Vietnam “would absorb our troops by divisions” [6] and so ultimately settled on providing material and monetary assistance in lieu of a full troop committal.

While Eisenhower stopped short of a troop commitment, America’s involvement was etched in stone, and subsequent presidents would consistently be faced with a corollary question to that posed in the preceding paragraph: if it is not to be Eisenhower who loses Vietnam, then whom?

By the last year of John F. Kennedy’s administration, Ho Chi Minh’s communist North Vietnamese government had gained not just military strength, but the support of the Vietnamese people in general. Ngo Dinh Diem, South Vietnam’s US supported leader had been unable to consolidate power over Vietnamese territory, nor the support of the people, and was assassinated with the “tacit approval” [7] of the Kennedy administration, merely three months before Kennedy himself was assassinated.

While Kennedy had escalated the conflict by sending 16.5k [8] military advisors, it would be Johnson who would bring the conflict to college campuses and to the media in the United States, and it would be Johnson who blurred the lines between the Executive and the Legislative powers of making war.

By 1964, Johnson was convinced that escalation was the only solution to the Vietnam problem, but without the broad powers needed to conduct the sort of operation he had in mind, he was unable to implement it. He ordered aides to draft a congressional resolution that would give him the broad powers required, but believed it would be too controversial to propose. By August, he’d found his opportunity as two American naval destroyers—the USS Maddox and USS C. Turner Joy—deployed to the Gulf of Tonkin had supposedly been attacked unprovoked. In reality, the Senate Foreign Relations Committee would discover in 1968 that the Maddox was involved in intelligence gathering, and that the South Vietnamese Navy was assaulting North Vietnam. [9] There is also a question as to whether attacks on the naval destroyers took place, or whether Johnson merely exploited a miscommunication to further his foreign policy goals.

At any rate, Johnson delivered to Congress the Gulf of Tonkin Message wherein he requested that Congress “approves and supports the determination of the president, as Commander-in-Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression,”[10] and also declared that the United states was “prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.” [11] The House and the Senate approved the resolution in short order, with the House voting unanimously and the Senate voting 88-2 [12].

It is unlikely that had the Congress understood the implications of their actions that they would have so strongly supported the resolution. First, because the conflict in Vietnam would continue for another decade, costing billions of dollars, hundreds of thousands of American lives, as well as chaos across college campuses, including the Kent State shootings where innocent protestors were gunned down by the National Guard. Second, Congress had relinquished a great deal of their constitutionally guaranteed powers—powers which vested the right to declare war firmly in their hands. While Eisenhower attempted to placate Congressmen who feared another American ground war, Nixon brazenly vetoed Congress’ power to reassert its Constitutional rights with the War Powers Resolution of 1973.

The War Powers Resolution was passed by Congress in a response to Vietnam that rejected the “post World War II era [belief] that the executive branch, with its superior sources of information, its unity of command, and its ability to act with dispatch, should be responsible for determining when and how the United States will go to war.” [13] The WPR consistent of two main provisions, the purpose of both to reign in presidential power. First, it required that the President consult with Congress before committing troops “in every possible instance,” [14] and second it required that the president report to Congress in writing the details of his actions. Within 60 days (or 90 with a special extension), the President must withdraw troops without congressional approval, and Congress retains the ability to withdraw troops in that time frame if they determine it necessary.

While a steadfast effort on behalf of the Congress, Nixon and subsequent president rejected the WPR as unconstitutional even after it was passed over Nixon’s veto. Criticisms of the Resolution came from the right and the left, with conservatives arguing that it unconstitutional [15], and liberals arguing that it “effectively sanctions virtually any presidential use of force for ninety days.”[16]

Hitherto, the constitutionality of the act has yet to be determined. While presidents have not necessarily shown deference to the WPR, Congress has done little to assert the provisions of the act in response to Presidential war making. On the contrary, Congress seems to have been unable to glean the lessons of Vietnam in contemporary times, as a déjà vu would beset the nation at the dawn of the 21st century when Congress audaciously granted President Bush unprecedented powers to conduct what would become in many ways a fun house mirror of Vietnam in Iraq.

The corollaries between the two wars are unambiguous. Bush’s Maddox was an unrelated attack on September 11th, 2001, and faulty intelligence pointing to the possession of weapons of mass destruction by Iraqi Dictator Saddam Hussein. Both wars would be commonly accepted as quagmires, both were unjustified (in that neither country had aggressed the US), and both lead to hundreds of thousands of unnecessary deaths[17] and the unnecessary expenditure of billions of dollars.

In one important sense, however, Iraq was, albeit in a pyrrhic manner, more successful than Vietnam. Unlike Vietnam which saw a negotiated withdrawal after the American failure to defeat North Vietnamese forces, the incursion in Iraq deposed Hussein in short order. The quagmire that Iraq would eventually become followed from the power vacuum created in his absence, after George W. Bush had stood on an aircraft carrier under a banner that read “mission accomplished.”

The greatest loss, perhaps, was in the opportunity Congress had to reassert its authority over war making powers, as well as to show restraint in a situation that should have felt all too familiar. President Bush in a request echoing Johnson’s Gulf of Tonkin message asked Congress to grant him broad powers to conduct his war on terrorism, which included unprecedented preemptive strikes on countries that Bush believed to have ill intentions toward the United States. In its authorization of military force, Congress authorized the President to “use all necessary and appropriate force against those nations, organizations, or person he determines planed, authorized, committed, or aided the terrorists attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the united States by such nations, organizations, or persons.” [18] To their credit, some Democrats in both houses of Congress voted against the legislation, indicating some recognition of the path on which the nation would be set, but not enough to overcome overwhelming bipartisan support. Later, Bush would ask for specific authorization for war in Iraq, and Congress would once again acquiesce. Concurrently, Bush ordered lawyers working for the Offices of the Counsel of the President and Vice President, along with the Justice Department, to develop a series of legal opinions “that determined that the president had inherent authority under the commander in chief clause to take whatever actions he deemed necessary to protect the nation during wartime.”[19]

In short, Bush consolidated unprecedented power in the Executive Branch. The consequences of Congress’ authorization in this case, however, was not limited to the war within the borders of Iraq. Nancy Kessop makes the point that Bush’s war on terror had no borders, and in effect Bush pushed the limits of the authorization for force, along with his liberal interpretation of the commander-in-chief clause, to engage in many activities that should make raise American eyebrows[20]. Domestic surveillance [21], for example, along with morally dubious interrogation techniques which amounted to torture.

A Constitution in Crisis

Arguably, when leaders like Johnson or Bush expand the power of their office, they do so predicated on their stated intentions of protecting the United States. It is believable, that is, that Bush had only the best intentions when he invaded Iraq. The problem with this line of reasoning is twofold. First, even if it is the case that any particular president expands power for the good of the nation, “enlightened statesmen will not always be at the helm.”[22] That is, power does not devolve when the next president takes office, and the next may not have the nation’s best interests at heart—a primary motivating factor for the framers of the Constitution to balance power among several branches. Second, the best of intentions do not make for the best of outcomes. War is, perhaps, the most significant action in which a government can engage, and due to its potential negative consequences is better suited for decisive action by a deliberative body. By granting, ultimately, the power to wage war to a single person, every foreign policy conflict becomes a roll of the dice by a gambler who may not have the prudence to take the chips off the table when necessary. We see, for instance, that both Eisenhower and Johnson struggled with the potential effect that losing Vietnam would have on their prestige. In the case that the decision were left to a deliberative body, the negative impact on prestige would be dissipated through the 535 members of the Congress instead of concentrated in one leader, in effect removing an incentive for Executives to engage in conflict when the necessity is ambiguous.

One might argue that an energetic executive is necessary to deal with sudden attacks, and there is merit to this argument. If Congress were, for example, in recess, then they would be unable to engage in the deliberations necessary to repel such an attack. But this fact in and of itself does not justify transferring constant war making capability to the president. Rather, in such a situation, the president would be duty bound by laws higher than the Constitution to take necessary measures to properly protect the nation [23]. In those extreme cases, the Congress may retroactively grant the President the legal authority to have committed to conflict, but should impeach him if he is found to have committed to war unjustly.

In all other times, the declaration of war is a duty which should fall to the Congress. Thankfully, the solution to this conundrum need not be drafted anew. The Constitution already clearly lays out the delineation of powers between the president and Congress, accounting for the need to repel sudden attacks, but vesting the majority of power in the Congress so as to prevent an imperial presidency. The solution then is simply to enforce the Constitution as written. The President should administrate the armed services, but in the absolute majority of cases it is the Congress which should make the decision to go to war. Congress should, in addition, rid itself of its tendency to pass broad war making resolutions, instead reserving the right to declare war and actually declaring war in each and every conflict in which it believes the United States should engage. This would tend not only to peace, but to accountability, as necessitating declarations of war reduces the tendency to perpetual war and the passing of responsibility to the President alone.

This is easier said than done, of course. The Supreme Court has historically been deferential to the Executive in wartimes [24], and so any movement on this front is unlikely to occur until a détente with the Middle East. When that happens, Congress should take the necessary steps to devolve Presidential power and reinstitute the terms of the Constitution as written.

[1] Article I, &?sect;8.11

[2] Ambrose, S. E. (1990). Eisenhower: Soldier and president. New York: Simon and Schuster. Pp357-8

[3] Ibid

[4] Eisenhower, Dwight in Ambrose; pp358

[5] Ambrose; pp358

[6] Eisenhower, Dwight in Ambrose; pp358

[7] US Department of State, Office of the Historian.

[8] Nelson, M. (2012). The evolving presidency: Landmark documents, 1787-2010. Washington, D.C.: CQ Press. pp 203

[9] Ibid

[10] Johnson, Lyndon B. in Nelson; pp204

[11] Ibid

[12] Ibid

[13] Nelson; pp 216

[14] War Powers Resolution in Nelson; pp 218-9

[15] Nelson; pp 217

[16] Eagleton, Thomas F. in Nelson; pp 217

[17] It is the case that the Executive department learned at least one lesson from Vietnam: Americans are casualty averse. Roughly four thousand American troops were killed in Iraq, due to a combination of technological advancement and outsourcing military roles to mercenary groups. The ‘hundreds of thousands’ figure mentioned here refers mainly to Iraqi casualties (see for figures), which the author holds as no less tragic than the loss of American lives.

[18] S.J. Res. 23

[19] Kessop, Nancy in Ellis, R., & Nelson, M. Debating the presidency: Conflicting perspectives on the American executive . pp 169

[20] Ibid

[21] Another corollary to the Vietnamese war, as it was uncovered that the Nixon administration had engaged in domestic surveillance on the suspicion that war protestors were mired by communist sympathizers

[22] Madison, James. Federalist #10

[23] For a theoretical perspective, consider J. Locke, Second Treatise of Government, 1690, 159.

[24] See e.g. United States v. Curtiss-Wright Export Corp. 299 U.S. 304