Presidential Initiative and Congressional Acquiescence – Jordan T. Cash

In her lead essay for this forum, Sarah Burns presents presidential unilateralism as a modern phenomenon. In the eighteenth and nineteenth centuries, Burns claims, “we do not see presidential unilateralism,” and it is only at the turn of the twentieth century that “the healthy push and pull … between the branches began eroding.” The result, in Burns’s view, is an increasingly unhealthy constitutional system and a series of “questionable decisions” in how America deploys its military might.

There is little doubt that presidents in the twentieth and twenty-first centuries have come to dominate American foreign policy in a way their predecessors did not. Yet presidential unilateralism is not a new development. Since the beginning of the republic, presidents have pursued policies without first consulting Congress. Indeed, when we examine the constitutional structure of the executive and legislative branches, we see that the presidency has a clear structural advantage in shaping American foreign policy, one which has been expanded as the United States has grown into a global superpower.

As I have argued elsewhere, the presidency’s structure fosters institutional attributes that are especially necessary for conducting foreign policy; namely, energy, secrecy, a national perspective, and a longer temporal horizon. The president’s foreign policy authority when it comes to treaty making, receiving ambassadors, and serving as commander in chief naturally line up with these institutional attributes, so much so that Jeffrey Tulis has argued that “self-preservation”—i.e., national defense—is the primary objective of the executive. By contrast, Congress, with its bicameral structure and members representing diverse and dispersed constituencies with distinct interests, is oriented to be slower, with the primary characteristics of reasoned deliberation and representation.

Having both the president and Congress involved helps ensure that the distinct attributes of both branches are brought to bear on the formation of foreign policy. Yet the executive’s institutional capacity to act quickly and energetically, combined with its diplomatic and military powers, clearly enables the president to be the primary actor in shaping the United States’s diplomatic and military agenda.

This is evident in the multiple examples of presidential unilateralism in the eighteenth and nineteenth centuries. Diplomatically, George Washington’s Neutrality Proclamation, Thomas Jefferson’s purchase of the Louisiana territory, James Monroe’s articulation of the Monroe Doctrine, and John Tyler’s efforts to annex Texas were all done either without reference to Congress or undertaken solely at the president’s discretion. With regard to war powers, Jefferson deployed naval squadrons to the Mediterranean to act against the Barbary pirates without awaiting congressional authorization. Following the annexation of Texas, James K. Polk ordered American troops to the new—and disputed—southern border, ultimately resulting in a skirmish with Mexican troops that Polk used to call for a declaration of war. Finally, and most famously, Abraham Lincoln undertook extensive military measures at the beginning of the Civil War, including suspending habeas corpus, raising 75,000 troops, and initiating a blockade of the South without first receiving congressional approval.

In each case, the president exercised what William Howell termed “the president’s first-mover advantage.” Alexander Hamilton seems to have even anticipated that presidents would behave this way, noting in his first “Pacificus” essay that “the Executive in the exercise of its constitutional powers, may establish an antecedent state of things which ought to weigh in the legislative decisions.” The presidents saw a policy goal and, rather than waiting for Congress, chose to exercise their institutional energy to act quickly and pursue it, in some cases, even doing so secretly and catching Congress off guard once the policy was announced. The executive’s structural energy not only enables him to do this but incentivizes him to act first, putting Congress in a reactive position.

Yet Burns notes that presidential action is only one side of the equation when it comes to presidential unilateralism. In her view, what distinguishes nineteenth-century Congresses from more modern Congresses is that the earlier Congresses “would engage in a meaningful debate about the merits of the action and provide him with permission or deny it.” There is no doubt that all of the previous examples spurred meaningful debate. Ultimately, however, the presidents who asked for congressional approval received it. Indeed, it is notable that while Congress is constitutionally given the power to declare war, Congress has never declared war without a president asking first, and no president who has asked for a declaration of war has ever been denied. Even when the debate was contentious, such as in the case of the Mexican War, where some members of Congress accused Polk of acting “to provoke war, and to bring on war,” the president nevertheless got what he wanted.

We see this pattern even in modern Congresses that have shown signs of deliberative life. Harry Truman’s unilateral decision to send American troops to the defense of South Korea sparked an intense debate in Congress over each branch’s constitutional authority. South Dakota Senator Karl Mundt protested “that whatever the legal basis may be for our involvement in that conflict, it was not by any action whatsoever of the American Congress.” Senator Robert Taft of Ohio also argued that the manner in which presidents approached foreign policy had “deprive[d] the Senate and Congress of the substance of the powers conferred on them by the Constitution.” The lead-up to the Iraq War similarly saw some substantive arguments against the war as well as arguments from prominent members like Senator Robert Byrd of West Virginia, urging Congress to “not simply walk away from their Constitutional responsibilities.” Just like the earlier Congresses, however, these modern Congresses ultimately declined to check the president. Even with active deliberation, the end result was a majority supporting the president.

In short, congressional deliberation by itself is not a guarantee against presidential unilateralism. A fully deliberative Congress could still decide that actions a president takes unilaterally—even at the expense of Congress’s institutional authority—are nevertheless necessary or in the national interest. Given this commonality between Congresses over time, it raises the question of whether Congress has always been relatively supine and willing to follow the president’s lead when it comes to war.

This is not to say that Congress does not have the ability to check the president in these areas. On the contrary, Congress possesses a variety of constitutional tools to push back on presidential unilateralism, ranging from the power of the purse all the way to impeaching presidents who flagrantly violate the Constitution in pursuit of their foreign policy goals. Such actions, however, require a degree of congressional willpower which has—as noted in another recent Law & Liberty forum—been notably absent in recent years, and which may be difficult to achieve precisely because Congress’s structure as a bicameral and pluralist legislative body makes consensus difficult. This problem is made even more challenging when we consider that many members of Congress agree with what the president is doing, whether for partisan, political, or policy reasons.

Despite presidential unilateralism going back to the Founding, Burns is right to identify the Spanish-American War as a key inflection point. Not due to a fundamental change in the relationship between the branches, but rather because of how external circumstances following the war created a greater scope for presidents to exercise their pre-existing advantage in foreign policy. The Spanish-American War saw the United States become a global power, and in the wake of World War II, the United States further asserted itself as the leader of a new liberal international order. As the president is the focal point of American foreign policy, the expansion of American diplomatic and military power naturally broadened the scope for presidential action.

Moreover, in a world of nuclear powers where national security is the paramount concern and where responses to emergencies could be measured in minutes rather than days or weeks, an energetic executive is much more highly valued than a deliberative legislature. Even the War Powers Resolution—Congress’s major twentieth-century attempt to seize back its war powers from the executive—seems to acknowledge the changed circumstances of modern foreign policy by allowing presidents to deploy troops without congressional authorization for sixty days, enabling the president to act quickly while still allowing Congress to bring its deliberative element to bear on such unilateral action. Similarly, modern developments in military technology, particularly drone technology allowing for unmanned aircraft to strike military targets, have given the president additional discretion in determining when deadly force may be deployed without congressional oversight and authorization.

Any efforts to restrain presidential unilateralism must recognize the constitutionally grounded asymmetry between the president and Congress in how they relate to foreign affairs, as well as how the contemporary international order and changes in military technology have contributed to further presidential unilateralism. This is not just a question of policy, but cuts to the heart of whether or not it is possible to have a strong and effective executive that is still consistent “with the genius of republican government.”