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Unfortunately, the classical-liberal tradition that Carl Schurz represented is almost gone today. The men and women who supported it were consistent opponents of the imperial presidency, no matter the party in power. (Schurz, for example, was a Republican who broke with the Republican Grant administration.) That’s because the single-minded pursuit of power at the expense of historic liberties is the result of the corruption of both major parties in America today. It is a problem that has been going on for generations since presidents from Roosevelt and Truman to both Bushes. At one time or another leaders of both major parties have branded the critics of the imperial presidency “isolationists.”
George H.W. Bush and others belittled the warnings of such critics of the American Empire as senators Robert Taft, J. William Fulbright, Sam Ervin, and Rand Paul. Paul recently objected to Syrian bombings without Congress’s having a say. Ervin warned of the imperial presidency in the Johnson/Nixon era in the debates over the Vietnam War.
“The movement of the United States into the forefront of the balance of power realpolitik in international matters has been accomplished at the cost of the internal balance of power painstakingly established by the Constitution,” Ervin said.
Yet ultimately many presidents have continued to use dubious, extra-constitutional methods to end debate or run roughshod over the thoughtful critics who warn that presidents, both Republican and Democratic, have become imperial rulers. They increasingly use executive orders and agreements to reduce the power of Congress.
During the recent attempts of Donald Trump to close off the immigration debate through his executive orders, many on the Left seem to have forgotten that Barack Obama, similarly faced with a hostile Congress, also issued executive orders to end bitter debates that were not yielding the legislation that he wanted. Given many historical precedents, why shouldn’t Obama’s successors, all of them, take the same approach when faced with a fractious Congress? And why stop at immigration reforms, when executive orders can be used to end debate on so many contentious issues? And, to take this idea to its logical conclusion, why have a Congress?
Indeed, these weapons of tyranny — executive orders, executive agreements, and the overall expansion of presidential powers — have been used increasingly over the past century by presidents. Both left-wing and right-wing presidents have availed themselves of the institutional weapons of the imperial presidency.
For instance, in the last years of his life, civil libertarian Nat Hentoff called for the impeachment of Obama because of his short-circuiting of Congress through the frequent use of executive orders. “Apparently, he [Obama] doesn’t give one damn about the separation of powers. Never before in history has a president done these things,” Hentoff warned. One can imagine what he would be saying today about Trump.
The “good war” and the bad war
This tradition of presidents’ ruling unilaterally, has been going on for many years. The danger is that there are fewer and fewer objections. Many Americans accept presidential war, regardless of whether they believe in it or not, as the norm — as something that can never change. But many don’t even know of the debates over its legality — that there was a time when the issue sparked intense debate. The imperial presidency, like the welfare-warfare state, becomes the standard that almost everyone implicitly or explicitly accepts and, in the case of Secretary Dick Cheney and President George H.W. Bush, endorses.
Still, I believe the debate over these policies is inevitably skewered not by their legality or whether presidents are taking on the powers of emperors. Instead it is too often governed by partisan bickering or by which war an imperial president is waging and its popularity.
Example: It was easy for many Americans to overlook Franklin Roosevelt’s institutional sins, his faux neutrality between 1939 and 1941, because of the victory of the United States in World War II. By contrast, at the end of the Vietnam War, almost no one wanted to overlook the constitutional sins of the administrations that had been committed during what became an unpopular and losing war without a formal congressional war declaration. The Gulf of Tonkin Resolution in the summer of 1964, authorizing the war, overwhelmingly passed Congress under shady circumstances, namely that the North Vietnamese attack on U.S. patrol boats, which was used to justify the resolution, had never occurred. The Gulf of Tonkin Resolution was later repealed. But Richard Nixon ignored the congressional revocation of the resolution. The war later ended in defeat and tragedy. Many Americans were then ready to discuss the dangers of the imperial presidency.
Unfortunately, objections to the abuse of presidential power seem focused on the outcome of a policy or a war, with Congress implicitly going along with illegal but seemingly victorious wars. Congress, with few exceptions, has continued to approve appropriations.
Indeed, Lyndon Johnson cynically recognized this reality. He used to tell his anti-war critics in Congress, “I don’t care what kind of speeches you make as long as you don’t vote against appropriations.” He knew that only a handful of congressional representatives put their votes behind their anti-war opinions. Congress generally was in no mood to take back its powers, even though Americans overwhelmingly objected to Johnson’s constitutional hijack in waging the Vietnam War, an unnecessary and disastrous war. (See my series “The Road to the Permanent Warfare State,” Freedom Daily, May 2011–May 2012.) Yet the war was eventually condemned by most Americans. After more than a decade of war and possibly as much as hundreds of thousands of deaths, Congress finally stopped funding the war. It ended the unconstitutional Kennedy/Johnson/Nixon presidential war in 1975. However, a vigilant Congress, protective of its war-declaration powers, could have stopped the United States from ever joining the war in the early 1960s. That’s when a handful of anti-war critics in Congress were complaining that an illegal war was being waged.
Most Americans supported World War II after war was legally declared. Once Pearl Harbor was bombed, they stopped questioning and debating some of Roosevelt’s questionable constitutional actions leading up to the war. The America First group, critics of the policies of the period leading up to Pearl Harbor, immediately disbanded. Charles Lindbergh, along with other leaders, joined the war effort, even though he was blocked in his efforts to recover his commission and all but branded a traitor by the Roosevelt administration and, later, by some historians.
For instance, in a recent book on William F. Buckley, author Heather Hendershot calls Lindbergh “a Nazi.” That, unfortunately, is standard in many histories of the period of the undeclared war in America between 1939 and 1941. Nevertheless, Lindbergh still was a war hero in the Pacific, taking down numerous Japanese planes while working for a war contractor, as noted in the A. Scott Berg biography. He was also disgusted by the crimes he saw committed by both sides. He was fearful of the effects of war on the human race, especially on indigenous peoples.
Roosevelt’s actions were eventually condoned by Congress and generally sanctioned by public opinion because the war ended in victory. To some Americans, it seemed to be “the good war.”
Yet just prior to the U.S. entry into World War II, there was a period that several historians have called a time of “undeclared war.” This was a 14-month period after the outbreak of World War II in Europe and U.S. entry into the war in December 1941. Roosevelt in those 15 months faced an often-suspicious Congress that he knew would not give him a declaration of war unless there was a clear attack on the United States.
Roosevelt had the same problem as numerous presidents before and after him: He had to deal with a sometimes-hostile Congress in the period before a war when there was no overwhelming public sentiment to go to war. He was looking for a way to carry out an unpopular war policy. Roosevelt, like predecessors from Polk to Wilson, found various ways to circumvent Congress, using and stretching his executive powers. James K. Polk, for example, in a dispute with Mexico over the Texas border, posted U.S. troops in disputed territory with the intent of provoking an incident that would lead to war. That resulted in fighting and the Mexican War, a war bitterly criticized by a young congressman from Illinois by the name of Lincoln.
That led to more criticism in Congress, including this complaint from Sen. John Calhoun of South Carolina:
“I do not see on what principle it can be shown that the President, without consulting Congress and obtaining its sanction for the procedure, has a right to send an army to take up a position where, it must be foreseen, the inevitable consequence would be war” (War Powers: How the Imperial Presidency Hijacked the Constitution, by Peter Irons).
Roosevelt’s problem in the run-up to World War II was that numerous members of Congress believed he was quietly pursuing a pro-British line considerably before Pearl Harbor. For example, he was deliberately sending U.S. warships into the war zone in the North Atlantic, hoping to create an incident that would push the United States into war, as many of his critics pointed out. Hitler ordered his commanders to avoid any incidents with the U.S. Navy in international waters. He was telling them that he wasn’t ready for war with the United States, according to Politics of Frustration: The United States in German Naval Planning, 1889–1941, by Holger H. Herwig. Herwig notes that, in the period of the undeclared war, Hitler lacked the navy that could have carried out a successful invasion of the United States.
But Roosevelt, pursuing a quietly bellicose policy that many of his successors would use, was trying to push the United States into war, despite his publicly saying the United States would stay out of war. “Behind the public performance,” writes Wayne S. Cole in Roosevelt and the Isolationists, 1932–1945, “Roosevelt was bold and innovative in building what Robert Sherwood called ‘a common-law alliance with Britain in its war against the Axis.’” Sherwood was a Roosevelt supporter who wrote a bestselling biography entitled Roosevelt and Hopkins.
This de facto British alliance, unapproved by Congress, extended to China, where Roosevelt quietly funded the Flying Tigers, a group of American military pilots in the American Volunteer Group (AVG), without congressional approval.
One of the leaders of AVG, Claire Chennault, said that Roosevelt created AVG with a secret executive order on April 15, 1941. However, an AVG historian questioned that. “No such document has ever surfaced,” wrote Daniel Ford in the book Flying Tigers, Claire Chennault and His American Volunteers, 1941–1942.
However, none was needed. Ford wrote, because “Roosevelt preferred to give a wink and a nod, leaving it to his underlings to fill in the details.” Later there was a directive issued to Secretary of War Henry Stimson, providing money for the AVG.
This article was originally published in the January 2018 edition of Future of Freedom.