The Constitution in Danger

1.

The unfinished business of the Iran-contra affairs still haunts us. It reappears every time the President decides to take some critical action in foreign policy on his own.¹ We have barely begun to face the issue, with the result that some Iran-contra variant is bound, sooner or later, to recur.

The Iran-contra affairs amounted to more than good plans gone wrong or even bad plans gone wildly wrong. They were symptomatic of a far deeper disorder in the American body politic. They were made possible by an interpretation of the Constitution which former National Security Adviser John M. Poindexter and Lieutenant Colonel Oliver L. North thought gave them a license to carry on their secret operations in the name of the President, without regard for any other branch of the government.² One would not ordinarily think of Poindexter and North as authorities on the power of the presidency in foreign affairs. Yet, to justify their actions, they held forth on just this constitutional issue. A highly dubious theory of a presidential monopoly of foreign policy had filtered down to them. Their reasons reflected a school of thought that calls into question the constitutional foundations of this country.

On May 2, 1986, Poindexter sent a revealing message to his deputy, Don Fortier, about a conversation with President Reagan. Poindexter said that he and the President had discussed an aid bill for the contras, which was not going through Congress fast enough to please the administration. Reagan had started the conversation with “I am really serious.” He then said: “If we can’t move the Contra package before June 9, I want to figure out a way to take action unilaterally to provide assistance.” After some discussion on how to accomplish this end, Poindexter observed: “But the fact remains that the President is ready to confront Congress on the Constitutional question of who controls foreign policy.”³

Poindexter brought up another critical question bearing on who controls foreign policy. Of all the powers given to Congress by the Constitution, none is more fundamental than congressional control of appropriations.⁴ Without that control, Congress would be deprived of any effective share in the governance of the United States. Yet Poindexter took it upon himself to declare that the constitutional authority of Congress to appropriate money should not be used “to restrict what the President can do in foreign policy.”⁵ In effect, he wanted congressional control of appropriations to stop at foreign policy, thereby depriving Congress of any fully effective means of influencing it.

North also posed as an authority on the President’s constitutional powers. At one point in the congressional hearings, he said:

I deeply believe that the President of the United States is also an elected official of this land, and by the Constitution, as I understand it, he is the person charged with making and carrying out the foreign policy of this country [italics added].⁶

It was this assumption of a president almighty in foreign policy that underlay the belief of Poindexter and North that they could do anything in the Iran-contra affairs so long as they had the President’s implicit or explicit approval.

Poindexter and Fortier were sometimes more extreme than North. The difference once came up in connection with efforts to solicit money from “third countries.” In November 1985, Fortier wrote to McFarlane:

Ollie believes we need to flag the possible option of a Finding permitting us to seek third country support. John [Poindexter] and I are both uneasy about raising this.⁷

Fortier was referring to the Hughes-Ryan Amendment of 1973, which requires the president to “find” that any operation, other than that for obtaining intelligence, “is important to the national security of the United States” and to report it to the appropriate committees of Congress “in a timely fashion.” Poindexter explained: “I didn’t want to resurface the issue on the Hill and get an answer that we didn’t want to hear.”

Another issue concerned whether funds were appropriated by Congress. In this case, Poindexter admitted, “you probably have to have, as we do have, a very detailed accounting system to make sure the money is all spent for its intended purpose.” But there was an escape hatch. If unappropriated money were used, Poindexter held, no accounting would be necessary. In the case of the operation managed by former General Richard V. Secord in behalf of North, Poindexter said, “We are talking about private funds, third-country funds that really are outside of the purview of the US government.”⁸

North also claimed to know the constitutional difference between appropriated and unappropriated funds. He maintained: “We lived within the constraints of Boland, which limited the use of appropriated funds.”⁹ If unappropriated funds were used, he thought, there was no need to abide by the Boland Amendment, which prohibited support for the contras.

The use of private or third-country funds thus became another way the President and his men tried to escape from the reach of Congress and accountability in foreign affairs. If this rationale had occurred only to Poindexter and North, it might be dismissed as an amateurish aberration. Two years later, however, the very same argument was put forward by Senator Jesse Helms, the ranking Republican in the Foreign Relations Committee, against the most important bill as yet offered as a consequence of the Iran-contra affairs. The issue will not die, as will become clear when we come to the fate of the bill presented by Senator Daniel Patrick Moynihan in July of 1989.

The question of the appropriations power of Congress in foreign policy is only a special case of other, more farreaching questions:

Is the president a free agent in complete command of the conduct of American foreign policy? Do the other branches of government, especially Congress, have any part to play in it? Does the Constitution draw a fundamental distinction between the conduct of foreign and domestic affairs? Do we have an autocratic president in foreign but a democratic president in domestic policy?

The way these questions were answered influenced the way the Iran-contra affairs unfolded. The premise of a presidential monopoly in foreign policy emboldened Reagan, Poindexter, and North to play fast and loose with constitutional constraints. In its ultimate significance, nothing was more important in these affairs than how the power of the president in foreign policy was understood—and nothing was more neglected. The Iran-contra affairs were not an aberration; they were brought on by a long process of presidential aggrandizement, congressional fecklessness, and judicial connivance. If anything is to be gained from this costly experience, it should be the belated realization that the Constitution is, in a sense, in danger.

2.

But in what sense?

There is little agreement on what the Constitution says about where power is located in foreign policy. For one reason, the Constitution itself says comparatively little about it. Article I, Section 8, gives Congress the power to regulate commerce with foreign nations, to declare war, to provide for the common defense, and determine the organization of the armed forces. Article II, Section 2, empowers the president to make treaties with the advice and consent of the Senate, provided two thirds of the senators present concur; to appoint ambassadors with the advice and consent of the Senate; and to be the commander in chief of the armed forces. The grants to the president—as Abraham D. Sofaer observed in a notable study—are “by contrast, few and vague.”¹⁰ All this is not very much on which to base a complete constitutional doctrine. These few hints were hardly enough to guide the nation even in its infancy.

The framers of the Constitution, moreover, were not models of consistency. They frequently said different things or said one thing and did another. Alexander Hamilton, traditionally considered the early exponent of a strong presidency, gave expression to the classical rejection of an all-powerful presidency in foreign affairs:

The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate, created and circumstanced, as would be a president of the United States.¹¹

Later, however, Hamilton wanted to give the presidency virtually unlimited power, except where the Constitution contained specific exceptions and qualifications, which were few. Thomas Jefferson appealed to James Madison “to cut him to pieces,” which Madison tried to do in the great debate between Pacificus (Hamilton) and Helvidius (Madison). A critical issue was whether the executive as well as the legislature had the “right” to judge whether to make war or not—the ultimate test of how far the executive could go in its control of foreign policy. Madison argued heatedly:

In no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace in the legislature, and not to the executive department…. War is in fact the true nurse of executive aggrandizement…. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.

Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war; hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.¹²

The main, historic leaps in “executive aggrandizement” might well serve as a commentary on this passage, as shown by the wartime presidencies of Woodrow Wilson and Franklin D. Roosevelt.

A few years later, Madison wrote to Jefferson:

The management of foreign relations appears to be the most susceptible of abuse of all the trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts and at such times as will best suit particular views; and because the body of the people are less capable of judging, and are more under the influence of prejudices, on that branch of their affairs, than of any other. Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.¹³

Yet President Jefferson and his secretary of state, James Madison, stretched the powers of the presidency beyond anything they had previously envisioned in order to obtain the Louisiana Territory in 1803. Previously “strict constructionists” of the Constitution, they waived their principles for what Jefferson said was a “higher obligation.” Since the Constitution did not provide for the acquisition of territory, which would have required a constitutional amendment, Jefferson admitted that it was “an act beyond the Constitution.”¹⁴ The congressional defenders of President Reagan’s handling of the Iran-contra affairs did not fail to note these historical precedents and inconsistencies.¹⁵

As a result, what the Constitution actually says is not a reliable guide to what it has been made to say or what has been done, whatever it may say. The Constitution clearly does not charge the president with “making” foreign policy. But presidents have effectively made foreign policy. The Constitution, in principle, does not make a distinction between foreign and domestic policy; it charges Congress with making and the president with executing both. But this “separation of powers” has been honored in the breach. In foreign affairs, the Constitution limits the president the most in his ability to declare war. Yet it has done little to prevent presidents from making war so long as they do so without declaring it, or pretend that they are waging something else. President Harry Truman’s undeclared war in Korea was a constitutional monstrosity, but that did not prevent it from being waged for three years nor did it send Congress into a constitutional rebellion.

3.

Historically, the argument for making foreign policy the sole business of the president largely rests on sources other than the Constitution. One of the most influential and misrepresented of these grounds is associated with the claim that the president is the “sole organ of government in foreign affairs.” It figures prominently in almost all arguments for presidential ascendancy in foreign policy, including the Minority portion of the congressional Iran-Contra Report. Rarely have two words taken on such enormous significance, despite a highly questionable lineage.

In a “Pacificus” article, Hamilton contended that the Executive Department was “the organ of intercourse between the Nation and foreign Nations.”¹⁶ This phrase was distorted by the Minority to say that the president “is the ‘sole organ’ of the government in foreign affairs.”¹⁷ The “sole organ” phrase actually turned up for the first time in a speech by John Marshall in the House of Representatives in 1799. The occasion for Marshall’s dictum was the decision of President John Adams’s to turn over to the British an alleged fugitive, Jonathan Robbins, whose extradition to England had been requested by the British government.

Adams was challenged in Congress on the ground that it had not given the president statutory authority for his action. Marshall, then a congressman, not yet the famous chief justice, upheld Adams for having acted on his own, because Congress had not yet legislated on such a matter. In the course of his argument, Marshall said:

The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.

He also said:

Congress, unquestionably may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive department to execute the contract by any means it possesses.

This hardly suggests that Marshall had meant to deprive Congress of any voice in foreign policy. The “sole organ” allusion, in context, was, as a great constitutional scholar, Professor Edward S. Corwin, put it, “simply the President’s role as instrument of communication with other governments.”¹⁸

Not until 1936 was this term used to give the president exclusive power over foreign policy. It came up in an opinion by Justice George Sutherland in the celebrated case of US v. Curtiss-Wright. The issue itself was hardly one in which it was appropriate to make a sweeping judgment on the whole range of foreign policy. The historical context is again important. A joint resolution of Congress had authorized President Franklin D. Roosevelt to prohibit arms sales to Paraguay and Bolivia, then at war. Curtiss-Wright and other companies were indicted for violating the embargo. They came up with the defense that Congress had failed to set adequate standards for the authority delegated to the president. Curiously, given the subsequent history of Sutherland’s opinion, the policy had been set by Congress; the president was simply executing it. The case concerned the validity of a law, not the relations between the president and Congress. There was no question of any challenge by Congress of the president’s authority; the challenge to both the president and Congress came from private parties, including the Curtiss-Wright Company.

Justice Sutherland sustained President Roosevelt’s action primarily on the ground that limitations on congressional delegation of power to the president in domestic matters did not carry over to foreign affairs. But instead of limiting himself to the point at issue, he went on to engage in a flight of general constitutional theory, usually regarded as dicta (personal views not necessary to the decision of the particular case), that has reverberated through succeeding decades. It was another case of tearing words from their historical context and applying them to all manner of circumstances.

Citing Marshall’s speech of 136 years earlier, Sutherland went on:

The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers—as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect to our internal affairs….

Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of power is significantly limited. In this vast external realm with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation….

It is important to bear in mind that we are here dealing with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as “the sole organ of the federal government in the field of international relations”—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

This decision has been cited so often by government attorneys bent on defending the president’s exclusive power in foreign affairs that it has come to be known as the ” ‘Curtiss-Wright, so I’m right’ cite.”¹⁹ It is cited by the Minority in the Iran-Contra Report, but merely as signifying that “the President and his agents are the country’s eyes and ears in negotiations, intelligence sharing and other forms of communication with the rest of the world.”²⁰ None of this has any bearing on the president’s alleged constitutional right to “make” foreign policy or to exclude Congress from its making, but Curtiss-Wright is always brought in to make both the smaller and the larger claim. In 1987, Chief of Staff (and former Senator) Howard Baker cited Justice Sutherland in Curtiss-Wright in support of the claim to unlimited power for the president in foreign affairs.²¹

In fact, more has been read into Sutherland’s opinion than was actually there. The only monopoly specifically noted is the president’s power “to speak or listen as a representative of the nation”—a hoary prerogative never contested since the early years of the Republic. And if the president’s power “must be exercised in subordination to the applicable provisions of the Constitution,” the president is still empowered only as far as the Constitution permits.

But equally significant was Sutherland’s apparent separation of external from internal affairs. He created a bifurcated presidency by splitting the Constitution in two and having it say one thing for internal affairs and another for external affairs. He actually limited the external side, so far as the president’s exclusive power is concerned, to speaking and listenting as the national representative, but this inconvenient qualification has been forgotten in the interest of making the president all-powerful in foreign policy as a whole. The external-internal bifurcation lived on.

Curiously, Curtiss-Wright came up in Oliver North’s testimony at the congressional hearings. It even provided the occasion for an exchange between North and Senator George J. Mitchell:

North: That was again debated in the 1930s in the US vs. Curtiss-Wright Export Corporation, and the Supreme Court held again that it was within the purview of the President of the United States to conduct secret activities and to conduct secret negotiations to further the foreign policy goals of the United States.

Mitchell: If I may just say, Colonel, the Curtiss-Wright case said no such thing. It involved public matters that were the subject of a law and a prosecution—you said this isn’t the appropriate form to be debating constitutional law, and I agree with you.²²

North was fuzzy about what Curtiss-Wright had actually been about—arms sales in Latin America, not secret activities or secret negotiations. But it was significant that he should have mentioned the case at all, probably because he had heard about it in reference to the president’s presumed powers in foreign policy. North’s reference to Curtiss-Wright was another example of something not well done but surprising to have been done at all.

Another Supreme Court decision has been famous for the opposite reason. In 1952, during the Korean War, President Truman ordered the seizure of the steel industry, which was threatened with a nationwide strike, though there was no statute authorizing his action. The case of Youngstown Sheet & Tube Co. v. Sawyer went to the Supreme Court, where the vote was six to three against the seizure.

The majority opinion by Justice Hugo Black upheld the classical constitutional principle that presidents could only execute laws made by Congress and that President Truman had violated this hallowed rule. The Court’s opinion stated unequivocally:

In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that “All legislative Powers herein granted shall be vested in the Congress of the United States.”

Justice Felix Frankfurter’s concurring opinion basically held that the fundamental doctrine of the “separation of powers” made President Truman’s action unacceptable. But it was Justice Robert Jackson’s concurring opinion that attracted most subsequent attention and seemed to offer the best way out of the excessive presidential permissiveness of Curtiss-Wright.

Instead of deciding what was constitutional and what was not, Jackson took a practical, relativist approach that there were degrees of constitutionality. They were:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, or it includes all that he possesses in his own right plus all Congress can delegate….
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain….
3. When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.²³

This Solomonic judgment does not, in theory, make a clear-cut distinction between what is constitutional and what is not. It rather seems to distinguish between minimum and maximum constitutionality. Yet Jackson had to decide one way or the other on the president’s action on Youngstown, which was a minimum case, and the way he decided implied that the minimum was not enough to stand constitutional scrutiny. Those who deny that the president has a constitutional monopoly in foreign affairs, therefore, have seen Youngstown as the answer to Curtiss-Wright and as the judicial vindication of “Congress’s role in the foreign-policy decision-making process.”²⁴ Jackson obviously made the president and Congress share in foreign policy, in varying degrees, depending on how they worked together. For him, “sole organ” was clearly no warrant for sole power.

We need not decide who is right or wrong. This dispute is likely to go on as long as we have a foreign policy, because it is as much a struggle for power and policy between the branches of government, whenever they disagree, as it is about constitutional interpretation.

Professor Corwin was asked where the Constitution vested authority to determine the course of American foreign policy. “Many persons are inclined to answer offhand ‘in the President,’ ” he replied, “but they would be hard put to it, if challenged, to point out any definite statement to this effect in the Constitution itself.” The Constitution, he maintained, “is an invitation to struggle for the privilege of directing American foreign policy.”²⁵ Yet the Constitution actually invites a struggle, more by what it does not say than by what it does say.

This struggle began in the infancy of the Republic and still goes on. It is in form a constitutional struggle, yet a democracy which conceives of itself under the rule of law not of men, can ill afford to take the form lightly.

4.

Another aspect of the struggle may be shown as it has gone back and forth in this century.

Theodore Roosevelt was the kind of president who chose to act with undisguised contempt for Congress. “I took the [Panama] Canal Zone and let Congress debate,” he boasted in 1911, “and while the debate goes on the canal does too.”²⁶ But he was followed in office by William Howard Taft, who went back to the more traditional view. The president. Taft said in 1915,

can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest.²⁷

Taft knew something about the Constitution: he was Chief Justice from 1921 to 1930.

Then came Woodrow Wilson, who advocated what amounted to a free hand for the president in foreign affairs. “The initiative in foreign affairs, which the President possesses without any restriction whatever,” he said in 1907, “is virtually the power to control them absolutely.”²⁸ He repeatedly acted imperiously, as in the dispatch of an American expeditionary force to Siberia in 1919, with virtually no congressional consultation. Whereupon the Senate took revenge by refusing to approve the Treaty of Versailles and thus permit the United States to join his great hope, the League of Nations. A long period of “isolationism” followed, requiring little presidential initiative.

The issue did not become urgent again until President Franklin D. Roosevelt was faced with Britain’s military collapse in 1940. He handled the “destroyers deal”—trading fifty over-aged US destroyers for the lease of some British naval bases—very much the way Jefferson had dealt with the Louisiana Purchase. Roosevelt, too, knew that his action was constitutionally dubious but decided to go ahead anyway without Congressional approval. “Although the transaction was directly violative of at least two statutes and represented an exercise by the President of a power that by the Constitution is specifically assigned to Congress,” Professor Corwin pointed out,

it was defended by Attorney General, later Justice, Jackson as resting on the power of the president as commander-in-chief to “dispose” the armed forces of the United States, which was ingeniously, if not quite ingenuously, construed as the power to dispose of them.²⁹

No wonder, then, that Jackson’s opinion in Youngstown twenty-two years later came as something of a surprise. Corwin could not restrain his disquiet. He called the destroyers deal “an endorsement of unrestrained autocracy in the field of our foreign relations.”³⁰

The precedent set by Franklin D. Roosevelt presents the problem of presidential latitude in its most acute form. Roosevelt at least did not have any illusions about what he was doing. He knew he was stretching the prerogatives of a president to their utmost limit but felt justified in doing so by the extreme menace of a Nazi victory over the whole of Europe and its consequences for the United States. The first question that must be asked in the circumstances of Franklin D. Roosevelt or Abraham Lincoln is: How serious, even desperate, is the situation? Very few situations can compare with theirs.

Roosevelt privately consulted with the Republican and Democratic leaders, who supported him in his action but asked him not to submit the deal to Congress, because they were worried about its divisiveness and possibility of defeat. Here again, the Roosevelt precedent hardly justifies the extreme claim that presidents have an inherent power to do anything they please in foreign policy. Whatever one may think about the destroyer deal, it was clearly an exceptional act in an exceptional situation—and Roosevelt thought of it as such. Yet exceptions are dangerous, unless they are handled with care. This one has not been handled with care.

As a result of World War II, the greater the power of the United States in the world, the greater have become the pretensions of presidents to monopoly over that power. “The postwar Presidents,” Arthur M. Schlesinger, Jr., noted, “though Eisenhower and Kennedy markedly less than Truman, Johnson, and Nixon, almost came to see the sharing of power with Congress in foreign policy as a derogation of the Presidency.”³¹

By 1950, Professor Robert A. Dahl of Yale University boldly attacked the contradiction between constitutional principles and political realities. He recognized that “congressional prerogatives stipulated by constitutional theory and practice stand directly athwart presidential supremacy in foreign affairs.” He was not sure of the outcome. “Is it not possible,” he asked, “that in foreign policy the executive can take the substance of power and leave Congress the shadow?” If the executive won out, he foresaw that we might reach the point “where the Chief Executive is a kind of constitutional dictator in foreign policy.” Dahl did not rule out the possibility that such a dictatorship might come about and wrote his book in an effort to avert it. Yet he could hardly have foreseen how far we have gone toward accepting “a kind of constitutional dictator in foreign policy.”³²

This specter has returned as the Supreme Court, especially in the Reagan years, has increasingly reflected the influence of Justice Sutherland’s one-sided Curtiss-Wright opinion in favor of presidential preeminence over Justice Jackson’s more cooperative Youngstown view. The constitutional scholar Professor Harold Koh of the Yale Law School has noted:

In short, far from maintaining a rough balance in the congressional-executive tug-of-war, the Court’s decisions on the merits of foreign-affairs claims have encouraged a steady flow of policy-making power from Congress to the executive. Through unjustifiably deferential techniques of statutory construction, since Vietnam the courts have read Curtiss-Wright and its progeny virtually to supplant the constitutional vision of Youngstown. As a result, in the years leading up to the Iran-contra affair, the courts became the president’s accomplices in an extraordinary process of statutory inversion. It is hardly surprising, then, that Oliver North should have cited Curtiss-Wright to Congress as the legal basis justifying all of his actions during the Iran-contra affair.³³

Oliver North was not the only one to cite Curtiss-Wright. In fact, this fifty-year-old opinion, so dubious in its rationale and application, has been blown up into the main legal basis for defending the Reagan administration’s handling of the Iran-contra affairs. Representative Henry J. Hyde of Illinois also cited Curtiss-Wright to suggest that Congress could not through the Boland Amendment “bind and gag the Executive department in the conduct of foreign policy in Nicaragua.”³⁴

But a more serious, official effort was made by Charles J. Cooper, head of the Office of Legal Counsel of the Justice Department. Soon after the exposure of the Iran-contra affairs, Cooper produced a memorandum for Attorney General Edwin Meese which sought to justify President Reagan’s action withholding notification to Congress of his dealings with Iran. In order to inflate the president’s power to the maximum and reduce the congressional component to a minimum, Cooper cited Curtiss-Wright no fewer than seven times. It was, he claimed, the “leading case,” in which the Supreme Court had allegedly recognized the President’s “far-reaching discretion to act on his own authority in managing the external relations of the country.”³⁵

Cooper, who had been brought into the Iran-contra crisis at the last minute by Meese, had been out of law school for only four years when he had obtained a job at the Justice Department. Four years later, he was made the chief legal authority in the department, although, as he admitted, he had not even known what a Finding was before the first week of November 1986.³⁶ The president as “sole organ,” a phrase that had originally referred to communications with foreign nations, was now inflated to mean “managing the external relations of the country” on the president’s “own authority.”

The use of expansive circumlocations has been the main technique for magnifying the president’s power in foreign policy. There is no telling where words like “managing” begin or end, with the result that the president’s power becomes indefinitely expandable. When an effort is made to set any limit on his power, the presidential reaction is predictably hostile and uncompromising.

5.

Such an effort was made as a direct result of the Iran-contra affairs. It was the only piece of serious legislation offered as a consequence of the affairs. Its fate is revelatory.

In July 1989, Senator Daniel Patrick Moynihan introduced a bill to forestall one of the means used by the Reagan administration to evade the Boland Amendment. The bill sought to prohibit “soliciting or diverting funds to carry out activities for which the United States assistance is prohibited.” The Boland Amendment had prohibited US assistance to the contras; the Reagan administration had solicited and obtained private and foreign or third-country funds to assist the contras. Moynihan’s bill made such an evasion of Congress’s express intention a felony. It was debated in the Senate on July 17 and 18, 1989.

The debate was held in the face of a threat by President Bush to veto the bill if it ever passed. Meanwhile, the State Department sent a representative. Sally Cummins, from the Office of the Legal Adviser, to appear on May 18, 1989, before the Senate Foreign Relations Committee. Later, letters were sent by Assistant Attorney General Carol T. Crawford of the Office of Legislative Affairs, and from Undersecretary of State Lawrence S. Eagleburger, both dated July 17, 1989.

These three efforts to head off the bill charged that it violated the president’s prerogative in foreign affairs. They made this claim in different but similar ways:

Cummins: …it is certainly an intrusion on the President’s ability under the Constitution to carry out his responsibilities and obligations to conduct foreign policy.

Crawford: In particular, it has long been recognized that the President, both personally and through his subordinates in the executive branch, determines and articulates the Nation’s foreign policy. See statement of John Marshall…, Curtiss-Wright….

Eagleburger: …an impermissible intrusion on the President’s constitutional prerogatives…this proposed amendment would seriously impair the President’s ability to carry out his Constitutional responsibility to conduct relations with foreign governments.”³⁷

We have here the terms “conduct” and “determines” used to define the president’s role in foreign policy. Neither word is in the Constitution. Neither word appears in Marshall’s 1799 speech or in Justice Sutherland’s 1936 dicta. They are part of the linguistic game of smuggling in verbal switches in order to give the president far more power in foreign affairs than the Constitution conceivably provides for. “Conduct” has been taken to mean something as limited as “communicate” or “negotiate” and something as extreme as “make” or “determine.” Crawford’s letter used “determine” in two different senses within the space of three paragraphs. She first made it apply to “form and manner” and then to “foreign policy”—the former relating to style, the latter to substance. Whatever the language, the purpose has remained the same—to deprive Congress of any share in the shaping of foreign policy.”³⁸

But most revealing of all was the debate between Senator Moynihan, sponsor of the bill, and Senator Jesse Helms of North Carolina, its chief opponent. In a strange way, Helms’s contribution did more than anything else to illuminate what was really at stake.

Moynihan agreed that it was up to the president “to conduct the foreign policy of the United States.” The problem is how to construe “conduct.” He pointed out that Article I, Section 8, of the Constitution gave Congress powers “singularly associated with foreign policy, with defense policy.” It then provided for Congress “to make all laws” necessary and proper to execute the foregoing powers. Congress’s law, in the instance of the Boland Amendment, had been flagrantly flouted by the presidential expedient of soliciting and distributing private and foreign funds. The issue was nothing less than whether the United States was a government of laws:

It is the essence of a government of laws, a constitutional government, that congressional mandates must be obeyed…. That is what a system of laws is about. It is in that spirit that we offer a direct, simple amendment that says what Congress prohibits may not be countermanded.³⁹

Helms’s argument was refreshingly ingenious as well as ingenuous. He did not take refuge in double-talk about what John Marshall had said in 1799 or Justice Sutherland in 1936. His view differed from Moynihan’s in only one respect. He agreed that the president could not pursue a policy which Congress had counter-manded by withholding appropriations for it. But he gave the president a way out:

Congress has the power to withhold the appropriations necessary to provide the means to execute a policy if it disagrees with that policy. But please observe carefully, Mr. President, that Congress has only the power of the purse, period.

Congress has no constitutional power to prohibit, let alone criminalize, a foreign policy which any president wishes to pursue. If the policy can be implemented without the expenditure of funds, Congress can have no effect on the outcome in any manner under the Constitution of the United States.⁴⁰

Here was the nub of the matter—“if the policy can be implemented without the expenditure of funds.” But what if the policy can only be implemented with the expenditure of funds—but not the funds of the United States? In the case in point, the funds for the contras came from private sources and third countries personally solicited by the president and his agents.

The implication is that the president can make and implement his own foreign policy without or against the will of Congress so long as he uses unappropriated money, even from foreign countries. Yet these private and third-country funds were not made available to President Reagan as if he were a private person, for his own ends; they were given to the President of the United States in behalf of a national, not an individual, purpose. He met with and thanked donors in the White House. They had been persuaded to contribute by a lieutenant colonel of the United States Marine Corps, with an office in the White House, who spoke to them as a representative of the President.

The question arises: Is the president exempt from a constitutional imperative and the principle of accountability, by obtaining private or third-country money? Since this is precisely what President Reagan did in the case of Saudi Arabia and Taiwan, these nations substituted for Congress in the making and carrying out of American foreign policy. They broke the constitutional umbilical cord between the president and Congress and made the president “a kind of constitutional dictator in foreign policy”—if one accepts Senator Helms’s interpretation of the Constitution.

A study by Professor Kate Stith of the Yale Law School entitled “Congress’ Power of the Purse,” published before the presentation of Moynihan’s bill, clearly set forth the reasons nonappropriated funds were illegitimate:

If the Executive could avoid limitations imposed by Congress in appropriations legislation—by independently financing its activities with private funds, transferring funds among appropriations accounts, or selling government assets and services—this would vitiate the foundational constitutional decision to empower Congress to determine what accounts shall be undertaken in the name of the United States.

Federal agencies may not resort to nonappropriation financing because their activities are authorized only to the extent of their appropriations. Accordingly, without legislative permission, a federal agency may not resort to private funds to supplement its appropriations because it has no authority to engage in the additional activity on which it would spend the private funds.⁴¹

Yet Helms immeasurably clarified the issue by being half right. He agreed that the president cannot act alone if he needs funds which only Congress can appropriate. That he should be able to act alone so long as he has private or third-country funds is a reductio ad absurdum of the issue.⁴² It puts wealthy donors or foreign countries in a position to help conduct, determine, or make American foreign policy in collusion with the president—whichever term would best fit the occasion—by providing funds to, or withholding them from him. This is “sharing” power, but with a foreign country, not with the American Congress.

In the debate, Senator George J. Mitchell of Maine replied to Senator Helms’s claim that the president “can pursue any foreign policy he wishes if no funds are required”:

With all respect, I strongly disagree with that assertion. The President of the United States is as constrained by law as is every other American. The President must obey the law and Congress has authority to make the law.

This is a democracy, not a monarchy. The President is not a king.⁴³

For Helms, the president may not be a king, but he can be autocratic in foreign policy and democratic in domestic policy, so long as he uses other people’s money. Helms again repeated: “If the President can execute the policy without calling on the U.S. Treasury, then the Constitution puts up no barrier.”⁴⁴ This is another version of the bifurcated presidency.

Moynihan’s original bill passed the Senate in July 1989 by a vote of fifty-seven to forty-two. It was embodied in the State Department Authorization Bill which was passed by the House of Representatives on November 15, 1989, and by the Senate on November 16, 1989. President Bush vetoed it on November 21. Very little attention was paid in the press to this latest episode in the continuing struggle between the Executive and Congress. President Bush may have vetoed the bill, but the essential issue will not go away so easily.

The Constitution—pushed and pulled, twisted and battered, so much over the decades—has shown an amazing resilience and vitality through two centuries of social and economic change. Styles in constitutional interpretation have alternated before, and there is always hope that the latest is not the last. Not every dispute over a clause in the Constitution is equally ominous. Yet the bifurcated presidency does not present an ordinary danger. It strikes at the very heart of a democratic constitution as we have known it—a Constitution that is not authoritarian in foreign policy and democratic only in domestic policy, that gives the president and Congress a share in both, and that provides checks and balances for both.

The question is not whether the president has some prerogatives in foreign policy by virtue of his unique status as the elected representative of all the people. It is whether he alone can “make,” “manage,” or “conduct” foreign policy. The idea that the president and his agents can do anything they please in foreign policy brought on the Iran-contra affairs. This idea percolated down simplistically to Poindexter and North and made them feel that they were empowered to act with impunity in their president’s name.

Not every dispute over the Constitution endangers it. This one, however, is qualitatively different. An authoritarian, autocratic presidency in “the management of foreign relations” is still a clear and present danger, “most susceptible of abuse of all the trusts committed to a Government.” And whatever one may think of the constitutional issue, there remains the question: Do we want that kind of presidency?

AFTERWORD

As I have earlier noted, my first paragraph was written with the US armed intervention of Panama in mind. I cannot do justice to the intervention here, but some comments may be in order.

There was something about the intervention that made it a peculiarly presidential affair. President Bush behaved as if he were conducting a personal vendetta against Noriega. All that seemed to matter was that Noriega should be removed, as if the source of all the trouble in Panama were concentrated in one man. The administration and the press even gave the impression that all was lost if Noriega escaped, all won if he did not.

Months before, Bush had said that the quarrel was solely with Noriega, not with the Panama Defense Forces. In his press conference on December 21, 1989, the day after the invasion, Bush confessed, “I’ve been frustrated that he’s been in power this long—extraordinarily frustrated.” All that mattered, Bush added, was that “they would get rid of him and recognize a democratically elected government, [and] we could go back to more normalized relations.”

We may yet hear that Abraham Lincoln and Franklin D. Roosevelt set the precedents for presidential initiatives of this kind. Compared to what they faced, however, Noriega’s threat to the national security of the United States was laughable. If the use of armed force should be reserved for a serious threat to the country, as we have long been led to believe, there was no such threat in Panama.

To use an armed invasion to kick out a goon the US had previously subsidized is to deaden our sensibilities to the havoc of war, big or little. There is something altogether ludicrous about using a cannon to kill a gnat—and then to take the gnat into a US courthouse to sting its custodians. The “trial” in Miami is turning into a farce because a US court is not the right place to deal with Noriega.

In any event, the resort to arms was a confession of political bankruptcy. Noriega was our man in Panama before he became a nuisance; his downfall merely tells would-be Noriegas that they should know their place and be satisfied with their payoffs. That the swearing-in of the new president, Guillermo Endara, and his two vice-presidents, Ricardo Arias Calderón and Guillermo Ford, took place at a US military base an hour before the invasion was the perfect symbol of the expected relationship.

If all that was wrong in Panama was Noriega, we can expect that “stability” will be restored by the return of the very conditions that bred him. Anything much better would require a sustained, costly, knowing effort, which the United States has not been able to demonstrate anywhere in Latin America.

And what of Congress? Representative Charles B. Rangel of New York protested that “I don’t see the legal authority of the use of the military.” Representative Don Edwards of California, head of the House Judiciary Subcommittee on Civil and Constitutional Rights, made a statement which is worth quoting in part:

As time passes and the euphoria of a victorious war fades, President Bush will be hard put to justify legally this decision. Our national security was not at risk. Neither American lives nor the Panama Canal were in danger. And there is no law licensing the President to send an invading army to arrest a minor drug suspect in a foreign country.

I hope that President Bush will hereafter respect the constitutional mandate that Congress be included in war-making decisions. Both the Constitution and the War Powers Act allow unilateral presidential war-making only in an emergency requiring an immediate response. In the case of Panama there was no emergency and the plans for the invasion were secretly drawn up months ago without congressional consultation or even knowledge.

But these were lonely voices. Of far greater importance was the blessing of the Democratic speaker of the House, Thomas S. Foley: “Under the circumstances, the decision is justified.” I have not seen a word of comment from senators. At the December 21 press conference, one reporter had the temerity to ask President Bush, “Are you sending a letter today to the Senate to coordinate with the War Powers Act?” Bush replied: “I don’t know whether it goes today, but notification of the Congress will be done in accordance with our policy.”

This act, passed by Congress in 1973 and still in force, limits the president’s power to commit US troops in hostilities to (1) a declaration of war, (2) a specific statutory authorization, or (3) a national emergency created by an attack on the United States, its territories or possessions, or its armed forces. In the absence of a declaration of war, however, the president must report to Congress within forty-eight hours whenever he introduces troops (1) into hostilities or situations of imminent hostilities, (2) into a foreign nation, or (3) in numbers which substantially enlarge US troops equipped for combat already located in a foreign nation.

Was the War Powers Act observed in the Panama invasion? Was there a “national emergency?” Was Congress officially notified? It is impossible to tell from what the Bush administration has told us. Judging from what Representative Edwards says there seems to have been a flagrant disregard for the law. I have not seen a single report on what role, if any, the Congress played in this affair. At most, it appears, President Bush conferred privately with some complaisant members of Congress, such as Representative Foley, just before sending in the troops. Yet one of the reasons for the invasion was Noriega’s “declaration of war” against the United States, which would make the US armed response, in effect, a reactive declaration.

Nevertheless, we will probably hear that there was no declaration of war; there was merely, as President Bush said in his December 21 press conference, the use of “military forces” resulting in inevitable “military casualties.” We are again in the realm of make-believe to get around the plain meaning and intention of the War Powers Act. Even more depressing has been the seeming indifference of the press and most members of Congress to constitutional processes and safeguards.

James Madison was uncannily right. Bush’s temporary leap in popularity has come about, because

the management of foreign relations appears to be the most susceptible of abuse of all the trusts committed to a Government, because they can be concealed or disclosed in such parts and at such times as will best suit particular views; and because the body of the people are less capable of judging, and are more under the influence of prejudices, on that branch of their affairs, than of any other.