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An Imperial Presidency, Part 1

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Congress has the power “To declare War, grant Letters of Marque and Reprisal and make Rules concerning Captures on Land and Water….”  

— U.S. Constitution, Article I, Section 8

The doctrine of energy in government, as I said before, is the true doctrine of tyrants….

John Page of Virginia at the Constitutional Convention on the role of the president 

The fault, dear Brutus, is not in our stars, but in ourselves, that we are underlings.

 — William Shakespeare, Julius Caesar

Who is to blame for an imperial presidency? How did so many Americans, especially members of Congress, come to view as normal giving one public official seemingly limitless powers to plunge the nation into war? And how did Americans come to accept a foreign policy of permanent war or warlike conditions, the trademarks of an imperial president?

It’s a long story.

A president with limitless powers is not what most of the Founders intended. The imperial presidency now reminds one of a Napoleonic plebiscite democracy. Provided an election is held once in a while, a president or an emperor is allowed to do almost anything.

That’s because the Congress, in issues of national security, so often defers to the president. Presidents repeatedly have bypassed Congress by waging war without a de jure declaration of war. And usually those lawless presidents suffer few or no consequences. In fact, most historians acclaim them as “strong” presidents. For instance, Harry Truman, citing UN obligations, plunged the United States into the Korean War without congressional authority, with only a few congressmen objecting.

“My conclusion, therefore,” said Sen. Robert Taft (R-Ohio), “is that in the case of Korea, where a war was already under way, we had no right to send troops to a nation, with whom we had no treaty, to defend it against attack by another nation, no matter how unprincipled that aggression might be, unless the whole matter was submitted to Congress and a declaration of war or some other direct authority obtained.” However, there was never any move to cut off funding for that illegal war.

Executive agreements

By the mid 20th century, a legal loophole used by Franklin Roosevelt furthered the progress of the imperial presidency. Presidents found a way to make the treaty-review powers of Congress irrelevant. Indeed, president after president acted imperially by not submitting treaties to Congress. They treated them as “executive agreements” instead of treaties, bypassing any potentially controversial review process. The use of executive agreements has become rampant over the last century, says John Lehman, secretary of the Navy in the Reagan administration.

An ironic situation had developed in that period. “Important matters were handled by informal executive agreements; unimportant matters, by solemn treaties,” Lehman writes in his book, Making War: The 200-Year-Old Battle between the President and Congress over How America Goes to War.

Lehman documents various presidential violations of the war-making power. But he dismisses the War Powers Act, which was passed in the 1970s to rein in imperial presidents. The act has accomplished nothing. Still, Congress can always stop unlawful presidents. It retains the ultimate power to restrain an imperial president through the power of the purse or even through impeachment, but it rarely uses such remedies.

Congress usually ignores constitutional violations unless it becomes politically unpopular to do so. And that usually happens only after the nation is deep in the quagmire of war, the economy is sputtering, and tens of thousands of young people have died.

Must we wait until the nation is near calamity? Apparently so.

For example, for some 15 years Congress would occasionally complain about the illegal war in Vietnam waged by various Democratic and Republican presidents. In 1975, it finally had had enough. It threatened to end all defense funding unless the United States pulled out of Vietnam. U.S. participation in the war halted because the war was unpopular, but also because the Ford administration was politically weak.

But that was an exception to the imperial-president model. It is usually unchallenged by Congress and often celebrated by the mainstream media and by much of academia. They believe greatness comes through “active/positive” presidents, to use the term of mainstream presidential historian James David Barber in his book The Presidential Character.

Active presidents mean bigger government, more commitments, more treaties — more executive agreements — and inevitably more national crises in which the president is given great leeway to act. Meanwhile, Americans are exhorted to be “patriots” or to “support the troops.” Franklin Roosevelt, Wilson, Kennedy, and Truman are among Barber’s favorite presidents.

Executive power and endless enemies

This great-president model has resulted in a bipartisan foreign policy of endless enemies and immoral wars. It also means the gradual destruction of liberty of the American people by the president, who inevitably employs the constant cry of national security and the threat of future wars. War, as Alexis de Tocqueville warned in his seminal book, Democracy in America, must inevitably destroy liberty while adding to executive power.

“No protracted war,” he wrote, “can fail to endanger the freedom of a democratic country…. [It] must almost compulsorily concentrate the direction of all men and the management of all things in the hands of the administration. If it lead not to despotism by sudden violence, it prepares men for it more gently by their habits. All those who seek to destroy the liberties of a democratic nation ought to know that war is the surest and shortest means to accomplish it….”

Indeed, James Madison, a student of the history of the Roman Empire and the father of the Constitution, warned of the dangers of the combination of war and executive power: “War is … the true nurse of executive aggrandizement.” He warned at the Constitutional Convention that militarism and the constant threat of war could also lead to a dangerous accumulation of executive power. “A standing military force, with an overgrown Executive will not long be safe companions to liberty,” he observed.

There was a time when those words were understood and heeded by many millions of Americans. America, until the Spanish-American War in 1898, had a strong anti-militarist tradition, which gradually weakened. America had a tradition of amity and commerce that matched its noninterventionist, anti-imperialist foreign policy. So American military establishments commonly were kept to a minimum.

Therefore, after the end of most wars in the 19th century, the American military was severely reduced. Divisions were demobilized. The navy was downsized. At the end of the Civil War in 1865, most of the ironclads, a new modern kind of warship that suddenly threatened to give Americans naval superiority, were put into mothballs. The British were amazed. They had been fearful that war might be coming with the triumphant North and had dispatched additional troops to North America.

But persistent war and the maintenance of a big peacetime military establishment would come later. That’s when vital elements of the imperial presidency were put in place, beginning with the horrific Spanish-American War, which was about as “splendid” as a plague. Here was a war supposedly fought to ensure Cuban freedom. It left the United States with a colony in the Philippines after a cruel war against Philippine rebels who innocently believed that the Americans would let them have their freedom.

An American empire

Still, after more than a century of the modern imperial presidency — some could effectively argue that the antecedents of this royal executive came with the Polk and Lincoln administrations — some Americans sense that we are going the way of the Roman Republic.

There is unease among some Americans. There is plenty of criticism of George W. Bush in the popular media. There are charges that he has recklessly waged war over imagined weapons of mass destruction and exceeded his authority as president. Unfortunately, many of these charges are partisan. They are aimed at putting someone from the opposing party into the White House with little regard for the institutional dangers to American liberties.

The problem is that this critique is so often short-sighted and ahistorical. It seems to be based on the idea that the imperial presidency began in 2001. The criticism of the imperial president is usually most vehement from members of the opposing party. (This myopia is not unique. In the 1970s, historian Arthur Schlesinger Jr., a Democrat, wrote a book on the imperial presidency that mainly blamed the Republican president Richard Nixon).

Democrats complain about an imperial presidency that preempts Congress and the people. They blame Republican presidents such as George W. Bush or Ronald Reagan or the disgraced Richard Nixon, who ultimately was not impeached on the grounds of having illegally waged war. Republicans, noting the executive branch’s surreptitious buildup to several disastrous wars waged by America, blame John Kennedy — who sent the first combat troops to Vietnam — and Lyndon Johnson. Johnson campaigned in 1964 as the peace candidate but later dispatched hundreds of thousands more troops to Vietnam.

Part 1 | Part 2
This article originally appeared in the June 2007 edition of Freedom Daily. Subscribe to the print or email version of The Future of Freedom Foundation’s monthly journal, Future of Freedom (previously called Freedom Daily).
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    Gregory Bresiger, an independent business journalist who works for the Sunday New York Post business section and Financial Advisor Magazine, is the author of the book Personal Finance for People Who Hate Personal Finance.