‘The Constitution in Danger’: An Exchange

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:

The second article of the Constitution of the United States, section first, establishes this general proposition that “the EXECUTIVE POWER shall be vested in a President of the United States…”

The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument…with these exceptions, the executive power of the United States is completely lodged in the President.²⁴

Hamilton observed that the United States possesses all powers belonging to a sovereign nation, including the power to conduct foreign affairs. Because the Constitution does not allocate the sovereign power over foreign affairs to either Congress or the judiciary, he maintained that it belongs to the President by virtue of the broad vesting clause of Article II; the Congress and the courts do not possess this residual power primarily because their powers are strictly limited to those enumerated in Articles I and III.

The letters of Pacificus so enraged Thomas Jefferson that he later wrote James Madison and urged him to respond to Hamilton: “Nobody answers him and his doctrines are taken for confessed. For God’s sake, my dear Sir, take up your pen, select the most striking heresies and cut him to pieces in face of the public.”²⁵ Madison responded under the pseudonym “Helvidius” and argued that Congress has the right to determine the foreign policy of the United States by virtue of its power to declare war.

Although Draper cites Madison’s Helvidius letters as support for his proposition of legislative supremacy, many noted historians have indicated that Madison’s position 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.

Significantly, when he became President, Madison’s behavior underwent a metamorphosis. While in office, he conducted a flurry of covert actions and secret diplomatic maneuvers, many of them connected with the acquisition of Western and Eastern Florida. His failure to inform Congress about his actions and the general thrust of his foreign policy clearly evidenced an expansive conception of executive power. ²⁶

Furthermore, this exclusive presidential control over foreign relations was recognized by the first Congress when it established what is now the Department of State. Congress directed the head of the department to fulfill certain specific tasks when entrusted to him by the President, as well as “such other matters respecting foreign affairs, as the President of the United States shall assign to the said department.”²⁷

Several years later, then-Congressman John Marshall defended President John Adams’s order that extradited, pursuant to the Jay Treaty, an alleged fugitive from British justice. “The President,” John Marshall argued, “is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”²⁸ This “sole organ” phrase has come to mean that the President has the principal role for initiating and implementing foreign policy,²⁹ and not merely just communicating with foreign nations as Congress’ agent as Mr. Draper implies. The cogent fact that the Framers established an independent and unitary executive, possessed of a general grant of executive power, clearly indicates that the reason the President is the constitutional agent for communicating with foreign powers is because the President possesses substantive foreign affairs authority.

1. The Courts and Executive Power

Despite the revisionist contentions of the neo-antifederalists, the Supreme Court has consistently and unambiguously recognized a presidential prerogative. As Mr. Draper clearly recognized, the Supreme Court first gave its imprimatur to the President’s broad discretion in foreign affairs in the leading case, United States v. Curtiss-Wright Export Corp.³⁰ The Court did, as Draper acknowledges, draw a distinction between the President’s relatively limited inherent powers to act in the domestic sphere and his wide-reaching discretion to act upon his own authority in directing foreign affairs.³¹ However, the Court was obviously correct in maintaining that this discretion derives from the Constitution itself and that congressional efforts to intrude in this area must be closely scrutinized.

Draper was right in observing that Justice Jackson characterized the Court’s discussion of the President’s inherent power as dicta because the presidential action at issue in Curtiss-Wright was authorized by statute.³² However, the Court’s view of inherent executive power was clearly not dicta because it was essential to its conclusion that Congress had not unconstitutionally delegated legislative authority to the President.

Significantly, the Supreme Court has consistently reaffirmed the Curtiss-Wright doctrine. For instance, in United States v. Nixon,³³ the Court followed the Curtiss-Wright distinction between domestic and foreign powers. Although it rejected Nixon’s claim of absolute executive privilege for communications involving domestic affairs, the Court stressed that military and diplomatic secrets are altogether in a different category. Such secrets are encompassed in the Executive’s Article II grant of power, to the exercise of which “courts have traditionally shown the utmost deference.³⁴ Moreover, recently the Court in United States v. Verdugo-Urquidez³⁵ at least implicitly upheld the validity of Curtiss-Wright when it held that Executive Branch personnel as agents of the President do not need a warrant when seizing foreign nationals abroad.

Nor does the Youngstown case stand for the proposition, as Draper alleges, that the President has no plenary foreign affairs power or that congressional will reigns supreme on any foreign policy issue it chooses to address. Because the Youngstown analysis is applicable to the domestic context, the case does not and need not refer to Curtiss-Wright’s analysis of executive prerogatives. Professor Corwin has written an excellent but seldom cited discussion of the Youngstown case.³⁶ Significantly, the article is devoted solely to analysis of the plurality, concurring and dissenting opinions in Youngstown inasmuch as they fail, in Professor Corwin’s view, to acknowledge the President’s constitutional prerogatives to override statutory prescriptions in times of national emergency. The fact that Professor Corwin does not even touch upon the question of the President’s foreign affairs prerogative suggests that Youngstown casts no shadow over Curtiss-Wright.

1. Congressional Authority to Block Presidential Power

Despite Mr. Draper’s contentions, it is clear that actions and decisions of the Executive in the conduct of foreign policy are not subject to direct legislative control by Congress. As Chief Justice Marshall maintained, “[b]y the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.”³⁷

In supporting Senator Moynihan’s bill, designed to criminalize the soliciting of funds from foreign powers by the Executive Branch when Congress has ended assistance to a particular program, Draper points to the grant of power given to Congress under the Necessary and Proper Clause. However, the scope of the Necessary and Proper Clause, U.S. Const. art. I, sec. 8, should not be interpreted to trump the President’s inherent foreign affairs power. Such an interpretation of implied congressional powers in fact would not be “proper,” because historically, as noted above, congressional power in the foreign affairs arena was intended to be strictly construed. Congressional power under the Necessary and Proper Clause was intended only to effectuate Congress’s enumerated powers,³⁸ not to eviscerate powers of coequal branches of government. To give the Clause such an interpretation would make a mockery of separation of powers and would effectively destroy the independence of the executive and judicial branches.³⁹

Moreover, despite Draper’s condescending remarks about Senator Helms, Helms was absolutely correct when he remarked that Congress does not have unlimited power to indirectly impede presidential authority by attaching conditions to appropriations that require the President to relinquish any of his constitutional discretion in foreign affairs. ⁴⁰ Congress has implied oversight powers which are grounded in the need for information prior to legislation,⁴¹ but Congress may not use those powers to impede executive discretionary authority over foreign affairs, intelligence, and covert activities. As the Supreme Court has observed, congressional power of oversight “is not unlimited”⁴² : it can only be exercised as part of a legitimate legislative function contemplated by one of the enumerated powers in Article I.⁴³ The oversight power cannot be employed to usurp the functions of either the judicial or executive branches.⁴⁴ The Court has repeatedly held that there are certain quintessential executive functions on which the Congress should not encroach.⁴⁵

Finally, Draper’s attack on President Bush’s successful military action liberating Panama from the narco-terrorist dictator Manuel Noriega as somehow being unconstitutional or in violation of international law is entirely spurious and not worthy of much comment. Pursuant to the President’s inherent executive authority—as well as the Commander-in-Chief and the Take Care Clauses of the Constitution—the President has the authority not only within United States borders, but also over United States citizens and property abroad. Thus, in the nineteenth century, in a situation reminiscent of the recent Panama episode, the Supreme Court upheld the President’s constitutional authority to protect the lives and property of American citizens in Nicaragua.⁴⁶

To summarize, despite their anti-federalist musings, the real problem bedeviling the American body politic is not presidential aggrandizement of his foreign affairs powers; instead it is the imperial and highly partisan congressional foreign policy micromanagement. Not to recognize this danger would leave the President at the mercy of Congress and would fulfill the fear of legislative usurpation of power expressed in the Federalist: “[it] is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.”⁴⁷

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 authors wish to thank Bradford A. Patrick, of Colgate University, for his invaluable assistance in the preparation of this article.

Theodore Draper replies:

1.

It is official doctrine now. Two legal advisers in the Bush administration—one of them legal adviser to the White House counsel—have come out openly in defense of 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. This is the clear message of their reply to my article, “The Constitution in Danger,” in The New York Review of March 1.

Before I go further, I must call attention to their almost hysterical and even defamatory tone. “Power Grab”! “Counterrevolution”! My article “would make even uncle Joe Stalin blush”! This is a new style in legal argumentation and constitutional interpretation.

One way to defend the indefensible is to camouflage the real position with contradictions. The game is to lead the reader from the obviously right to the obviously wrong.

It is obviously right, as Block and Rivkin say, that “The primary feature of the American constitution is its system of separation of powers, undergirded by checks and balances.” This means, they go on, that “the President participates in the legislative process” and “the Senate possesses limited executive power.”

Or they tell us that the Constitutional Convention decided “to divide foreign policy power between the President, the Senate, and Congress as a whole.” They also say that “the Framers placed a general foreign policy power in the hands of the executive, subject to specific but limited congressional checks.”

Apart from the dubious use of the term “general,” what else are all these truisms but “shared powers” in foreign policy? At least to this extent, they admit that the legislative and executive powers are interwoven. But there is more that they do not mention. The executive cannot constitutionally spend a penny, for foreign as well as domestic affairs, that is not appropriated by Congress. If Congress strongly disapproves of a presidential foreign policy, it can refuse to appropriate money for it and thus block its execution. For this reason, Edward S. Corwin—whom Block and Rivkin vainly cite in another connection—wrote that

the actual practice under the Constitution has shown that, while the President is usually in a position to propose, the Senate and Congress are often in a technical position at least to dispose. The verdict of history, in short, is that the power to determine the substantive content of American foreign policy is a divided power, with the lion’s share falling usually, though by no means always, to the President.⁴⁸

But then Block and Rivkin turn around and say peremptorily: “there are no ‘shared powers.”‘ They treat “shared powers” as if it were my personal aberration. But “shared power” has been a commonplace in constitutional literature for years. In his seminal study, Presidential Power, Richard E. Neustadt wrote that the Constitutional Convention of 1787 “created a government of separated institutions sharing powers.”⁴⁹

The distinction is all-important. The branches of government are separated but they are not hermetically sealed off from each other. The three branches share a responsibility for policy, though in different ways, and must cooperate in working it out. The cooperation may be good or bad, but there is no getting away from the need for cooperation if the policy is to carry the constitutional authority and popular support it needs.

Block and Rivkin cite an alleged statement by Corwin that “a system of shared or overlapping powers would be one of constitutional anarchy.” There is no such statement, as they claim, on page 36 of Corwin’s magisterial work on the presidency. There is no such statement anywhere in his book.⁵⁰ But there are other statements on shared powers that Block and Rivkin do not cite and that would have ruined their case if they had cited them. For example:

But whatever emphasis be given the President’s role as “sole organ of foreign relations” and the initiative thereby conferred on him in this field, the fact remains that no presidentially devised diplomatic policy can long survive without the support of Congress, the body to which belongs the power to lay and collect taxes for common defense, to regulate foreign commerce, to create armies and maintain navies, to pledge the credit of the United States, to declare war, to define offenses against the law of nations, and to make “all laws which shall be necessary and proper” for carrying into execution not only its own powers, but all the powers “of the government of the United States and of any department or officer thereof.”

Congress has, to repeat, vast powers to determine the bounds within which a President may be left to work out a foreign policy.

The powers that under