April 1970 | Volume 21, Issue 3
The Constitution of the United States declares in the plainest possible English: “The Congress shall have Power … To declare War.” Yet in the last twenty years Americans have fought two major wars—in Korea and in Vietnam—without a congressional declaration of war. Apart from the question of who has the right to send the armed forces into serious combat action, Vietnam has been a glaring instance of momentous foreign policy carried out with only the most cursory control by Congress.
Naturally, many Americans opposed to the Vietnam war are crying outrage. Many others, for or against the war or somewhere in between, ask a worried question: What has happened to the traditional constitutional procedure whereby the President leads in international affairs but Congress has a potent check on him when the decision involves life and death for the nation’s young men and sweeping consequences for the whole country? Is there no way to bring foreign policy back under greater popular control, by restoring the congressional role or through some other technique?
On the surface, the questions have clear-cut answers, most of which revolve around the contention that particular recent Presidents simply have refused to play by the constitutional rules. Yet in actuality the answers are entangled in complex considerations of just what the Founding Fathers did and did not write into the Constitution, how their decisions have been put into practice over two centuries, and whether the circumstances of war-making have not changed so much that some of the basic old rules simply do not apply.
The wise and hardheaded men who assembled in 1787 to write a constitution for the United States were members of a generation that had just fought a bitter war against the British executive, King George III. They were sick of battles and their devastation and intensely concerned to circumscribe any decision for war. A gangling freshman congressman from Illinois, denouncing the Mexican-American War a half century later, stated the mood of most of the Founding Fathers as accurately as any historian can. Representative Abraham Lincoln wrote in 1848 that the Constitutional Convention gave the war-making power to Congress because “kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.” (The italics are Lincoln’s.)
So the Congress, not the President, was to decide war or peace. But the Founding Fathers lived in an era filled with violence between countries that was not formal war. The new nation would be at a sharp disadvantage if, in the event of depredations against its commerce or maraudings on its land, its armed forces were immobilized until congressmen could gather from thirteen states in their horse-drawn vehicles. The Founding Fathers made one man who was on the scene, the President, Commander in Chief of the Army and Navy. The wording of the first draft of the Constitution gave Congress the exclusive power to “make” war. On the floor of the convention, “make” was changed to “declare,” assigning the President the right to use the Army and Navy in order to” meet specific emergencies while retaining for the House and Senate the power to decide full-scale war.
The Constitution has often been called a bundle of compromises, and so it was—not least between those who wanted a strong and those who wanted a weak Chief Executive. The Founding Fathers may have made the President the Commander in Chief, but they gave Congress the power of the purse in determining the size and nature of the armed forces. Until late in the convention, the right to make treaties was vested in the Senate alone. But there were obvious advantages in having one man initiate treaties, receive foreign ambassadors, name and instruct American ambassadors. The Chief Executive would do these things, although he was to appoint ambassadors only with the approval of a Senate majority and make treaties with the “Advice and Consent” of two thirds of the Senate.
In foreign affairs, as in all areas, the Founding Fathers were notably spare in laying down specific dictates and in the language that they used to write the provisions. Yet they said enough to make it clear that they envisaged a foreign policy system in which the President would lead, but in collaboration with Congress, especially the Senate, and in which the Chief Executive would be subject to continuing scrutiny and formidable restraints whenever his activities touched that most serious aspect of foreign affairs, general war.
On August 22, 1789, President George Washington, sound Constitutionalist that he was, appeared with his Secretary of War in the Senate chamber to “advise” with the senators on a treaty with the southern Indians and to seek their “consent.” The reading of the document began. The wasp-tempered Senator William Maclay, from the back country of Pennsylvania, was annoyed because the passing carriages made it difficult for him to hear the words; he and other senators, in the process of forming an agrarian political opposition to President Washington, were ready to be annoyed at anything that came from this administration with its “monarchical” tendencies. The President wanted an immediate vote, but the Maclay group called for time to study the documents connected with the treaty. George Washington, according to Maclay, “started up in a violent fret.” Had he not brought along the Secretary of War precisely to answer any questions that might arise? President Washington calmed down, the delay was granted, the treaty was ratified. But Maclay wrote in his diary, “The President wishes to tread on the necks of the Senate…. This will not do with Americans.” As for George Washington, he is said to have let it be known that “he would be damned if he ever went there again.” He did not go there again for advice on a treaty, and neither did any other President.
The clash over this minor document was a preview of the coming years, when the collaboration between the Chief Executive and the Congress, in the case of treaties or other aspects of international affairs, proved prickly and at times violent. Inevitably, Presidents tended to feel that they had superior information and were acting only after mature consideration of the matter; congressmen were interfering out of impulse, ignorance, politics, or a yen to encroach on White House prerogatives. Inevitably, congressmen, considering themselves sound in judgment and closer to the popular will, tended to believe that Chief Executives were trying, as Senator Maclay had declared, to create situations in which “advices and consents [would be] ravished, in a degree, from us.”
Before many decades it also became clear that while Congress might have the war power, a determined Chief Executive could put the House and the Senate in a position where they had little alternative except to vote war. The Democratic President elected in 1844, the unsmiling, tenacious James K. Polk, believed it was manifest destiny for America to expand. Texas had been formally annexed, but Mexico still considered it a rebellious province, and border disputes continued; California lay a luscious plum ready for the plucking from Mexico. President Polk kept trying to maneuver Mexico into acceptance of his ambitions, while he built a fervid public opinion behind expansionism. Finally the President ordered General Zachary Taylor into territory claimed by Mexico, and Mexican troops attacked American cavalry, killing or wounding sixteen.
On Sunday, May 10, 1846, President Polk went to church but, as he put it, “regretted” that he had to spend the rest of the Sabbath on a quite different matter —working out a war bill and a strategy for Congress. The measure provided an appropriation of ten million dollars and the calling up of fifty thousand volunteers. The disciplined Democratic majority in the House of Representatives limited debate to two hours, and only in the last minutes did the Polk leaders present a preamble to the bill that was a declaration of war. The House and the Senate included a strong anti-war faction. But now all members were in the position where they either voted for the whole measure or—with a good deal of public opinion near hysteria—voted against money and troops for General Taylor’s forces. The House approved, 174-14; the Senate, 40-2.
Those dogged fourteen Noes in the House included ex-President John Quincy Adams; and Representative Abraham Lincoln, just arrived in Washington, would soon begin his sharpshooter against the war. Major intellectuals joined in the assault. Henry Thoreau spent a night in the Concord lockup for refusing to pay his poll tax in protest, and when his aunt paid the money, much to his annoyance, he went back to Waiden Pond and wrote his famous essay “Civil Disobedience.” The agitation went on, but within five months American troops were swinging along the plaza of Mexico City, gazing in awe and in triumph at the great baroque cathedral and the pink walls of the Halls of Montezuma, asserting by their mud-spattered presence that President Polk was about to achieve in abundance the territorial acquisitions he sought.
Half a century later the obverse of the coin was showing. Of all wars the United States has fought, none has come to be considered more pointless and reprehensible than the Spanish-American War, and that venture was the doing of Congress, driven on by public opinion. During the 1890’s a rebellion in the Spanish colony of Cuba, brutally combatted by the Madrid government, caught up a mountingjingo sentiment in the United States. Before long the principal opponents of armed intervention were the American businessmen owning property in Cuba, who wanted things settled without dislocating their economic arrangements, and the two Presidents of the era, Grover Cleveland and William McKinley.
When Congress roared through a resolution recognizing the “belligerency” of the Cuban rebels, President Cleveland denounced the move as an intrusion on the powers of the Chief Executive and privately remarked that if Congress declared war, he as Commander in Chief would refuse to mobilize the Army. President McKinley tried, too; he undertook negotiations with Madrid to bring better treatment of the rebels. But the popular uproar, stoked by tabloid papers, kept increasing. William McKinley’s face grew haggard from the pills he was taking trying to get to sleep; once he sat on a big crimson brocade lounge in the White House and burst into tears as he spoke of the way Congress was forcing the country into war. Finally, the President capitulated. He planned to run for re-election; besides, he was scarcely deaf to voices like that of the senator who thundered to Assistant Secretary of State William R. Day, “Day, by ——, don’t your President know where the war-declaring power is lodged? Tell him by ——, that if he doesn’t do something, Congress will exercise the power.” President McKinley sat working on a war message as the Spanish government conceded major American demands—a concession made before the message actually reached the House and the Senate—and he added poignantly that he hoped Congress would give the Spanish terms “just and careful attention.”
A war of territorial seizure maneuvered through by a determined President, an ugly war forced by public opinion and Congress, six wars or significant uses of the armed forces in a little more than a hundred years, more and more instances of acrid White House-Congress clashes in foreign affairs—during the late eighteenth and nineteenth centuries the constitutional system was hardly functioning with glowing results in international matters. Yet the wars or quasi-wars did not pile up long casualty lists; they did not slash through everyday living. The most disruptive conflict, the Civil War, was removed by its very nature from the usual questions of constitutional responsibility. Whatever the underlying reality, even the Mexican-American War was fought under an authorization overwhelmingly granted by Congress. If the wars created savage debates, they spread little bitter feeling that questions of life and death were too far removed from grass-roots control.
President Theodore Roosevelt has often been called “the first modern President,” and he was that in many ways. In international affairs the world was taking on its twentieth-century form of great powers jockeying for global position, vast economic stakes overseas, and armed forces designed to strike swiftly. These trends inevitably centered more foreign policy power in the hands of the American President, who was far more able than the cumbersome Congress to operate in this kind of arena. The rambunctious Teddy Roosevelt, no man to turn away from power, responded by driving deep into the American system the doctrine that the Chief Executive is—to use his phrase—“the steward” of the nation, endowed under the Constitution with vast “inherent powers” to act in behalf of what he considers the good of the country.
Action accompanied doctrine. Did T.R. deem it to be in the national interest for the United States to have a canal across Central America so that the Navy could be moved quickly from one ocean to another, and was the Colombian government proving balky? In 1903 T.R. saw to it that Panamanian rebels set up an independent state covering the desired canal zone, and the new nation, to no one’s surprise, gave him what he wanted. (“I took the Canal Zone,” said President Theodore Roosevelt, “and let Congress debate.”) Did T.R. arrive at the conclusion during the Russo-Japanese War of 1904–05 that the security of the United States was best served by a Japanese victory? In entire secrecy he informed Tokyo that, if needed, America would act as an ally, which could have proved a commitment for war. Did the triumphant Japanese then seem a bit too cocky? In 1907 T.R. ordered the entire American fleet on a razzle-dazzle trip around the world, loosing all kinds of diplomatic reverberations. Congressional opponents stirred, particularly those from eastern regions fearing the lack of naval protection, and they talked of denying the appropriation for the fleet movement. Very well, T.R. replied. He had enough money to send the ships to the Pacific Coast, and they could stay there.
It was all very much Teddy Roosevelt, and more than a little rococo. Yet this first modern President was also anticipating in a serious way the modern presidential trend. Stirred on by changed conditions, he was moving through that broad arch erected by the Founding Fathers—between, on the one side, the clear power of the Chief Executive to lead in foreign affairs and to command the armed forces and, on the other side, the powers of Congress to do certain specific things.
As the twentieth century progressed and the enmeshments of the world grew tighter and more troublesome, Presidents probed still more vigorously the limits of the arch. This development was not only implicit in the circumstances; it was furthered by the difference between the vantage of the Chief Executive and the Congress. The President felt full blast the forces of modernity, which came crashing daily into his office. As the leader of the whole nation, he was heavily influenced by considerations of collective security, the moral position of the United States before international opinion, and the problems that tied in with the stability of the country’s economy. Of course members of Congress knew these same concerns, but they were also subject to local, more inward-looking pressures. The House and the Senate continued to include strong blocs which represented the decades-old view that the business of America is America and which resented the persistent intrusion of the world. The abrasion between the two ends of Pennsylvania Avenue in matters of foreign policy sharpened. More and more, Presidents viewed Congress as the adversary and thought in terms of skirting around it or, if necessary, ignoring it.
This occurred at critical points on the road toward American participation in both World Wars I and II. During the European phase of World War I, Germany climaxed three years of friction with the United States by announcing unrestricted submarine warfare. President Wilson had long been troubled by considerations of the moral position of the United States with respect to the conflict, and the feeling of his responsibility to assert American rights on the high seas; now he could not overlook the fact that hundreds of ships, fearful of submarines, were clinging to port and great supplies of wheat and cotton were piling up, threatening to dislocate the nation’s economic life. In February, 1917, President Wilson asked Congress for authority to arm merchantmen, an act that could scarcely fail to lead to war. The debate was stormy, and in the upper house eleven senators filibustered the measure to death. Thereupon the President announced that “a little group of willful men had rendered the great government of the United States helpless and contemptible” and ordered the merchantmen armed anyhow. War was declared in April.
After the eruption of the second European war in 1939 President Franklin Roosevelt was convinced that for the good of the United States it belonged at the side of the antifascist powers. Yet he faced tremendous anti-intervention sentiment, so amply reflected in Congress that as late as the summer of 1941, a year after the fall of France, the House extended the draft law by exactly one vote. Under the circumstances, F.D.R. undertook an extraordinary series of executive actions, which sought to hem in Japan economically and to help the nations fighting Nazi Germany. Weeks before Pearl Harbor these moves included an order that in effect meant convoying—despite a congressional ban on convoying—and an order to the Army Air Forces and the Navy to shoot first at German and Italian vessels found in the western Atlantic, which amounted to de facto warfare.
By the time America was fighting in World War II, it was manifest that President Roosevelt had made war and was continuing to conduct foreign policy with only a defensive concern for congressional opinion. Plenty of angry comment was made about this, yet still the war-making power did not become a major national issue. In the case of both World Wars I and II, a semblance of congressional authority was preserved by the ultimate declarations of war voted by the House and Senate. Of more significance, the two wars were generally accepted by the public; they were led by widely popular Chief Executives; and if they brought serious problems to the society, they did not seem to tear it apart.
In June, 1950, President Harry Truman was visiting his Missouri home when he learned of the invasion of South Korea by North Korea. Flying back to Washington, he mulled over the news. This was plain aggression, the President told himself; aggression unchecked during the 1930’s had led to World War II; he was not going to be party to another such tragedy. The next morning the reports were grim: South Korea appeared about to collapse. That night Harry Truman ordered American armed forces into the Korean fighting. Then the United Nations Security Council, on motion of the United States representative, “recommended” assistance to South Korea, and the President summoned congressional leaders, as he put it, “so that I might inform them on the events and decisions of the past few days.” The Korean War was under way, grinding on for more than three years, costing the nation 33,629 battle deaths and 103,284 wounded. At no time did President Truman ask congressional authority for the war.
Behind this White House attitude were all the reasons that had been accumulating for decades. But other and profoundly important elements had also entered into the relationship between the Chief Executive and Congress in the conduct of foreign affairs. The simple fact was that the traditional concept of a President leading in foreign policy and then, if necessary, going to Congress for a declaration of war had become obsolete. Historically, war meant that a nation, using whatever weapons seemed feasible, attempted to conquer another country or to beat it into submission. In an era of Cold War, and after the development of nuclear weapons, armed conflicts were taking a different form. Small Communist nations, unofficially backed by large ones, were probing remote areas. The United States was replying not by war in the conventional sense but by what was being called “limited war”—limited in the use of weapons because nuclear power was ruled out and limited in objective, which was not to crush the enemy but to stop him from spreading Communism and to discourage similar efforts in the future.
All the while, the relationship of war to the home front was altering. By the 1950’s the United States was so complex a society and Washington so overweening a force that a declaration of war had immense impact. This was partly psychological, but it also involved fundamental workaday facts. Over the decades, by laws and even more by precedents, a declaration of war had come to confer on the President sweeping powers over the entire national life, particularly in the sensitive area of economic affairs. Fighting a limited war, President Truman wanted to limit its home effects, and the opposition to them which could be so easily aroused.
So President Harry Truman went on fighting the Korean War on the authority of President Harry Truman. At times he spoke of the “authorization” or “summons” resulting from the action of the U.N. Security Council; the references were not taken too seriously. The war took calamitous turns. It exacerbated American social problems that were already serious. The very idea of “limited war”—”fighting a war with one hand tied behind you,” as people said—ground on the nerves of a nation accustomed to striding in for the knockout. Public opinion, which at first strongly favored the Korean intervention, swung against it and to an extent that had not occurred during any previous conflict; by 1951 the Gallup poll reported a majority believing that the whole intervention was a mistake and favoring prompt withdrawal. Opposition leaders in Congress now were storming against “Truman’s War,” that “unconstitutional” war; and this time the attacks were building a feeling that something was definitely wrong with the war-making procedures of the United States.
After the Korean War, and as part of the mounting American concern over Communist expansionism, the United States stepped up negotiations with other nations for regional defense pacts. These agreements were impeccably constitutional; they were treaties, negotiated by the executive branch, then debated in the Senate and approved by a two-thirds vote. Yet they contained clauses that could be construed to give Presidents further leverage in foreign affairs. A typical pact was SEATO, negotiated in 1954 by the Eisenhower Secretary of State, John Foster Dulles. It bound the United States, in the event of “armed aggression” by a Communist nation in Southeast Asia, to “act to meet the common danger in accordance with its constitutional processes” and, in the case of other types of threats in the area, to “consult” on the measures to be adopted—whatever a President might take all that to mean, in whatever specific circumstances he found himself.
Simultaneously, an old procedure—a joint House-Senate congressional resolution concerning international affairs—was gathering fresh meaning. After the lambasting President Truman took during the Korean War, Presidents who contemplated moves that might result in war or quasi-war sought some form of mandate from the House and the Senate. They also wanted to gather bipartisan support behind their action or projected action and behind their general policy, and—of great importance in their minds—they sought to present a united front to warn off Communist or Communist allied nations from adventurous plans.
The joint resolutions came in rapid succession: in 1955, when President Eisenhower thought he might use armed forces to protect Formosa from Red China; in 1957, when he was considering intervening in the Middle East to prevent strategic areas from falling under Soviet control; and in 1962, when President Kennedy was maneuvering to isolate Castro’s Cuba. The joint resolutions varied in a number of ways. But they were alike in their general pattern of giving congressional approval to a specific action or contemplated action of the Chief Executive and to his broadly stated policy for a particular troubled area of the world.
During the presidential campaign of 1964, the celebrated shots were fired in the Gulf of Tonkin by North Vietnamese gunboats against an American destroyer. A heated debate has broken out concerning just how honest President Lyndon Johnson was in reporting the total episode to the public and concerning the larger circumstances surrounding it. The relevant facts here are that the President believed that he should, by retaliating, discourage the North Vietnamese from any such further attacks; that as a politician running for office, he wanted to underline that he was as anti-Communist as his opponent, Barry Goldwater; that the South Vietnamese situation was disintegrating and he did not know what he might want to do about it in the coming months; that he was acutely aware of what had happened to his friend Harry Truman; and that he did not overlook the potentialities of the new type of regional pacts and joint resolutions.
President Johnson ordered a harsh retaliatory bombing of North Vietnamese patrol-boat bases. Then he summoned congressional leaders and told them he thought a joint resolution, like the Formosa and Middle East and Cuban resolutions, should be put through Congress swiftly. The document reached the House and Senate the next morning. It approved the bombing; spoke of America’s “obligations” under SEATO to defend South Vietnam; declared that the United States was “prepared, as the President determines, to take all necessary steps, including the use of armed force,” to assist any SEATO nation “in defense of its freedom”; and provided that the resolution remain in force until the Chief Executive declared it no longer necessary or the Congress repealed it by majority votes.
The House devoted most of its time to speeches approving the retaliatory bombing of the previous evening, and Representative Henry S. Reuss, from Milwaukee, said all that could be said on that subject. He was reminded, Reuss observed, of the story about the bartender who called the saloon owner on the intercom and asked, “Is Casey good for a drink?”
“Has he had it?”
The Senate spent more time on the general authorization granted by the resolution. Members rose to ask, Didn’t the language mean that the Congress was empowering the President to take any steps he deemed wise, including waging war, in Southeast Asia? Senator J. William Fulbright, the floor leader for the resolution, and a number of other senators replied that President Johnson had stated that it was his policy not to use combat forces in Southeast Asia; the resolution simply backed this policy; it had to be broad and to be approved quickly to show the North Vietnamese how much the American people, without regard to party, were against armed Communist expansion in Southeast Asia. How many congressmen wanted to vote No on such a proposition, especially three months before an election? The debate on the Tonkin Resolution in the House took just forty minutes, and the tally was 416-0. The Senate, after only eight hours of discussion, approved 88-2.
As President Johnson went on escalating the Vietnam war, he brandished freely the foreign policy powers of the White House, including making executive agreements—some secret—that went well beyond the Truman moves and entangled the United States and Asian countries in ways the full purport of which is still not known. More than the Korean War, Vietnam distorted American society at a time when it was still less able to stand further dislocation. And as a large part of public opinion and of Congress turned against the involvement, the cries once again went up, against “Johnson’s war,” that “unconstitutional horror.” But this time there was a difference.
Lyndon Johnson used to carry the difference around with him on a piece of paper crumpled in his pocket. When the subject of his authority for the war came up, he would pull out the slip containing the Tonkin Resolution and read from it. The two Eisenhower joint resolutions and the Kennedy one had concerned crises that went away, oral least seemed to; the problem treated in the Tonkin Resolution turned into a major war, and L.B.J. exploited the document fully, privately and publicly. On one private occasion, he took it out and read emphatically the resolution’s reference to American “obligations” under SEATO. With still more stress, hand clapping on knee, he repeated the phrases that the United States was “prepared, as the President determines , to take all necessary steps.” Lyndon Johnson demanded to know, Did Congress limit its authorization in any way? Embittered by the opposition to the war and the personal attacks on him, he continued in a deliberately provocative allusion to nuclear bombs, which he had no intention of using: Did Congress limit at all even what kind of weapons he could use? The President put the paper away. Besides, he added, if they have changed their minds, why don’t they just vote, as the resolution says, to repeal it?
Lyndon Johnson knew perfectly well that few congressmen would dare face their constituents if, by such a vote for repeal, they undercut a President and a Commander in Chief in the middle of a grave war which he had entered with the insistence that it was vital to American security and world peace. The new regional pacts and even more the joint resolutions—inaugurated with the best of intentions to meet contemporary circumstances—had given the Chief Executive still more war power, and done it in a manner that came close to caricaturing the intent of the Founding Fathers. For they were nothing less than a means by which Congress, with all the whereases of constitutional procedure, duly voted itself into impotence.
In 1967 President Johnson’s Under Secretary of State, Nicholas deB. Katzenbach, appeared before the Senate Foreign Relations Committee. His remarks, reflecting the L.B.J. mood, came close to saying that the Chief Executive has the right to do anything he considers best in international matters without regard to Congress. Midway in the testimony a committee member, Senator Eugene J. McCarthy, got up and walked out muttering, “There is only one thing to do—take it to the country.” This reaction was a factor in projecting McCarthy into his anti-war presidential candidacy. It was a reaction that was being felt throughout the country—combining discontent with the war and what it was doing to the nation with the charge that President Johnson was manipulating and bulldozing the American people through a war they did not want to fight.
Inevitably, a flood of proposals have come, some for amendments to the Constitution, others for congressional action. Almost all seek to return to Congress—and thus, presumably, closer to “the people”—greater participation in foreign affairs, with the usual assumption that the Congress would be less likely to venture into unwise wars than the President. The most serious of these moves has been a resolution proposed by Senator Fulbright and adopted by the Senate in 1969, which went at one major aspect of the problem through the concept of a “national commitment.” It was “the sense of the Senate,” the resolution declared, that the United States can make a commitment to a foreign nation only through a specific document agreed upon by both the legislative and executive branches.
But serious doubts are provoked by any of these proposals. The nub of the situation is the power of the Chief Executive as Commander in Chief and those general or “inherent powers” that have come to cluster about the office of the Presidency. Is there really a way to restrict the powers of the Commander in Chief without possibly doing more harm than good in an era when one man’s swiftly pressing the button may be necessary for some degree of national survival, or his prompt decision to use non-nuclear armed forces could be essential to achieving a purpose generally agreed upon by the country? Do the words exist that could inhibit “inherent powers” without simultaneously harassing the President, or blocking him, in taking actions that are widely considered necessary? Is this not particularly true in a period when his office is the one instrumentality that can make decisive moves in behalf of the national interest, whether that interest be expressed in domestic or foreign affairs—in orders to armed forces to strike abroad or to enforce federal laws at home, to affect importantly the deployment of economic and social resources inside the country or eight thousand miles away, or to assert at home or abroad the nation’s bedrock values? Yet if the proposals do not cut back on any of these essentials, how effectively do they close off the routes by which Presidents have moved independently to war?
The Fulbright resolution concerning “national commitments,” for example, might discourage certain kinds of the global wheeler-dealing of a Theodore Roosevelt or a Lyndon Johnson. But the resolution is merely an expression of senatorial opinion; it puts no effective check on a Chief Executive acting as Commander in Chief or wielding “inherent powers.” Neither T.R. nor L.B.J. would have considered the basic moves of their foreign policies subject to the resolution, and almost certainly it would not have prevented American entrance into, say, the Vietnam war.
Apart from the difficulty of controlling the President by new language, there is a still more troublesome question—whether, in fact, the Congress and “the people” are less likely than a Chief Executive to get the country into an unwise war. There is not only the glaring instance of the Spanish-American war; other examples, most notably the War of 1812, give pause. Then a rampant faction in Congress—a group with dreams of conquering Canada, who brought the phrase “war hawks” into the American language—helped mightily in pushing the United States into a conflict that was a credit neither to the good sense nor the conscience of the nation. Similarly, in the early, frightened Cold War days, President Truman was worried, and justly so, about a considerable congressional bloc that was restless to take on Russia.
Yet whatever must be said about the dangers or difficulties of restricting the presidential power to make war, the fact remains that something is decidedly wrong with the process as it has emerged full-blown in the igoo’s. It is a travesty of democracy to have so vital a decision so completely in the hands of one man. As Benjamin Franklin observed during the Constitutional Convention, the nation can never be sure “what sort” of human being will end up in the White House; some might be overly ambitious or “fond of war.” The country can also never be certain—no matter how able and peace-minded the Chief Executive—that he will not be led into an unfortunate decision by his dogmas or his limitations. Lyndon Johnson, to use a striking instance, was a Chief Executive of high abilities in a number of respects; he had a strong personal urge to be a peace President and well-seasoned political reasons for avoiding the travail of war. Yet he escalated the Vietnam intervention relentlessly, lashed ahead by old-style certitudes and an inadequate understanding of the forces at work in Asia.
Ideally, what is needed is the creation in modern terms of a system something like the one envisaged by the Founding Fathers, in which the President would have his powers as Commander in Chief and would lead in foreign policy while being guided and checked to some degree by Congress. Toward that end, no good purpose is served by continuing the practice of congressional joint resolutions in international affairs. Either the resolution must say so little that it does not significantly present a bipartisan front to the enemy, or it must be so sweeping that it hands the Chief Executive a blank check.
Beyond this negative suggestion there are all those difficulties in conceiving of a single congressional move that would better the situation. Probably improvement will have to come not by the beguiling expedient of one action but by slower and more complex changes within the existing relationship. For this purpose it is essential to note that in every instance when the United States has gone through all the prescribed constitutional forms, with the President recommending war and the Congress “declaring” it, the House and the Senate have never really “declared war.” Five consecutive times, from the War of 1812 through World War II, what Congress actually did was to recognize an existing state of war, allegedly caused by other nations. This was not simply the result of the natural desire to make the enemy appear the cause of the fighting. More importantly, it reflected the facts that by the time Congress considered a declaration of war, a long train of actions had made combat involvement inevitable or next to inevitable and that, in most instances, the actions had been taken by the White House.
The problem of increasing the participation of Congress in foreign policy therefore involves less the matter of a declaration of war than a continuing role for the legislative branch in the decisions that lead to large-scale military intervention. Thinking along these lines, it is useless to assume that the built-in tension between the White House and the Hill can be removed. Yet changes could be made that would increase the degree of genuine collaboration.
All modern Presidents have called in congressmen to “consult” concerning major foreign policy moves. The vital point is the nature of the “consulting.” Is it a session in which the Chief Executive really listens to his guests, or is it one in which he is simply informing them of what he proposes to do or has done or, asking their advice, receives it merely with a politeness calculated to grease relations with the Hill? The presidential attitude takes shape from many things, but in no minor degree from the type of men with whom he is talking. And outstanding congressmen can not only influence Presidents; they can rouse opinion in their own chambers and in the nation as a whole, which is certain to have its effects in the White House.
In his Memoirs President Truman touched upon the kind of congressional leaders with whom he was dealing during the Korean War. At times bitingly, he indicated how little he thought of the ability of a number of them to rise above narrow-gauged partisanship, of their knowledgeability in world affairs, even of their willingness to observe discretion when the Chief Executive revealed to them information that was necessary for understanding but seriously affected national security.
Truman, a former senator, knew his Congress only too well. For years students of American government have been pointing to the deplorable effects of the seniority system in Congress, and nowhere has it operated more lamentably than in placing men on that critical body for international matters, the Senate Committee on Foreign Relations. In the early twentieth century, when the White House was enormously aggrandizing its power over foreign policy, a number of the senators who were the chairmen or the ranking minority figures on the committee were close to the clownish in their inappropriateness. Since the advent of nuclear weapons, which brought the gravest of issues before the committee, the chairman and first minority senator have at times been able, informed, and dedicated. Yet to run down the list of the number-one and number-two figures since 1945, not to speak of the total makeup of the body, is to come upon some men whose lack of qualifications is staggering.
The problem is not simply one of bringing to the Foreign Relations Committee senators who will command, and justly command, the ear of the President and the country. There is the further consideration of whether they will insist upon equipping themselves with the kind of staff that permits them to operate with knowledge and force. One of the basic reasons for the overweening supremacy of the White House in international affairs has been its machinery for accumulating facts and its capacity to withhold or distort information and to project its interpretations of events. There is no reason why a Congress that took seriously its role, and was backed by the public in its assertiveness, could not establish information machinery that would enable it to fight the battle of Pennsylvania Avenue on more equal terms.
The potential of such congressional action has been strikingly demonstrated in recent years. During the Vietnam debate in the L.B.J. days, the Senate Foreign Relations Committee, headed by the sharp-minded J. William Fulbright and more or less adequately staffed, began to operate like a countervailing power in international matters. Lyndon Johnson may have come to detest William Fulbright, but he read carefully every word the senator said. The committee launched hearings that were a prime factor in building congressional and public opinion against the war and in ultimately changing Johnson policies. Fulbright has apologized for the “perfunctory” attention his committee gave to the Tonkin Resolution in the early days, and the remark is of more than personal significance. It is an open question whether the United States would have ended up fighting in Vietnam if the Senate Foreign Relations Committee had been vigilant, continuously informed, and articulate during the years from 1954 when the essential shape of affairs in Southeast Asia was developing.
The slow and intricate process of building a realistic base for congressional participation in international affairs—will the American people press for it? A natural aftermath of war is the urge to forget about its horrors, including the way that the country got into them. Yet Vietnam has been a shock to millions and to groups containing many influential figures, and certainly the foreseeable trend of events will keep ever present the possibility of large-scale United States combat involvement. Perhaps the present high feelings about Vietnam will carry over sufficiently to create a congressional stance that will give the American people some degree of responsible surveillance over the disposition abroad of their lives, their fortunes, and their sacred honor.