Forrest McDonald
The Presidency & American Foreign Policy 

The Philadelphia Society National Meeting
April 21, 2001

The Framers of the Constitution expected the president and the Senate to be more or less equal partners in the conduct of American relations with other nations, but that expectation was dashed almost at the outset. Only a few months after George Washington became president he and Secretary of War Henry Knox, taking the advise and consent clause literally, dropped in on the Senate without warning to seek advice concerning some pending Indian negotiations, and the result was a fiasco. Thenceforth presidents declined to seek the Senate's formal advice in advance of negotiations; instead, they or their envoys negotiated and if a treaty resulted sent it to the Senate for consent but not for advice. As the Senate Committee on Foreign Relations put it as early as 1816, it was well established that the president is "the sole organ of the nation in its external relations, and its sole representative with foreign nations." 

Between the presidency of James Monroe and that of William McKinley, the manner in which foreign relations were conducted was of little consequence, for such relations were minimal. To be sure, the United States was not totally isolated from the rest of the planet. Economically, it was integrated into a world order--a bumper crop on the Danube or Volga, for instance, could spell disaster for wheat farmers in the Middle West--but in the formal nation-tonation sphere we simply had not much to do with the rest of the world. Only James K. Polk, who maneuvered the country into a war of territorial aggrandizement against Mexico, and Millard Fillmore, who opened Japan to American trade, had any appreciable influence in international affairs. 

The rise of the United States as a world power--dramatically symbolized by the Spanish-American War and even more so by American intervention in World War I--ended that happy state of things and necessitated some constitutional adjustments that would inevitably elicit controversy. The first such change concerned the scope of the treaty-making power. Article VI of the Constitution makes the Constitution, laws passed in "pursuance" of it, and "all Treaties made, or which shall be made, under the Authority of the United States" the supreme law of the land. Early in the twentieth century, Congress passed a law regulating the killing of migratory game birds, notably Canadian geese. The act was contested, and the Supreme Court declared it unconstitutional on the ground that Congress had been delegated no power to legislate on such matters. But then President Taft negotiated a treaty with Canada agreeing that both countries would regulate the birds, and Congress repassed the act. This time in Missouri v. Holland, the Supreme Court upheld the legislation on the ground that the treaty was part of the supreme law of the land. In other words, a treaty can give constitutional sanction to an action that is otherwise impermissable. 

        The next step was taken in the 1930s, when, in the case of United States v. Curtiss-Wright Export Corporation, the Supreme Court ruled that executive agreements--between, say, the president of the United States and the prime minister of another country--had the legal force of a treaty. The combined implication from the two cases was that the president could bargain away all or any part of the Constitution. Indeed, by the 1933 Litvinov Agreement, Franklin Roosevelt agreed to seize and return to the Soviet Union property of Russian emigres who had become American citizens; he did so, and in United States v. Belmont and United States v. Pink (1937 and 1942) the Court upheld the confiscations in spite of the due process and just compensation clauses of the Fifth Amendment. Verily, the president now had a blank check in the conduct of foreign relations. 

        After World War II a strong reaction against the perceived abuses of executive power set in. The adoption in 1951 of the Twenty-second Amendment, limiting presidents to two terms, was part of that reaction. More to our point is the amendment proposed by Republican Senator John Bricker of Ohio early in 1952. The Bricker Amendment had three sections: l) that treaties conflicting with the Constitution should be void; 2) that treaties should become effective as domestic law only through legislation that would be constitutional in the absence of the treaty; and 3) that Congress should have power to regulate executive agreements and that such agreements should be subject to the limitations on treaties in the second section. At first Bricker received strong support, and in 1954 the amendment fell just one vote short of the necessary two-thirds majority in the Senate. As time passed, however, and as the much-trusted Eisenhower conducted foreign relations in a manner that most considered acceptable, the amendment's appeal faded. And then, in a pair of decisions handed down in 1957, the Supreme Court rendered it moot by ruling (albeit ambiguously) that treaties are as subject to being declared unconstitutional as are acts of Congress. 

        But the most dangerous--or vital, depending on one's point of view--of the president's powers derive not from treaty-making but from his role as commander in chief. Congress has the exclusive authority to declare war, and it has exercised that authority with great restraint: five times in two hundred and twelve years. The president, by contrast, can deploy the nation's armed forces anywhere and at any time he pleases. One might suppose that he is restricted by Congress' power of the purse, but in practice Congress has been extremely loath to interfere when troops are placed in danger. (My favorite example involved Teddy Roosevelt, who sent the Great White Fleet on a round-the-world cruise despite Congress' refusal to appropriate the necessary funds, saying in effect to his admirals that if they got to the western Pacific and ran out of fuel, Congress would come through with the money, which it did.) 

Now, we are all familiar with the Korean and Vietnamese conflicts, bloody and costly ventures fought without a declaration of war, but most people assume that those were exceptional cases. They assume wrongly. Starting with Jefferson and Madison, presidents have repeatedly deployed the military in alien lands without congressional authorization and often without congressional approval before or after the fact--a total of more than 200 times. Most of these military operations were relatively small and could be justified by some law or another. About a third involved invasions of Latin American countries to protect the lives or property of United States citizens, some were retaliatory attacks on remote Pacific peoples who lacked formal governments, and some were raids to interdict smugglers or slave traders. A number, however, were large-scale affairs, including the seven times the United States invaded Japan in the 1850s and 1860s and the war to suppress the Aguinaldo rebellion in the Philippines, which lasted four years during which 126,000 American troops saw action and 200,000 Filippinos were killed. Teddy Roosevelt sent troops into action in Honduras, the Dominican Republic, Syria, Abyssinia, Morocco, Korea, and Cuba. Woodrow Wilson deplored Roosevelt's actions, but once in office he also intervened in the Caribbean republics, invaded Mexico four times, and sent more than 12,000 soldiers into the Soviet Union as a part of a joint allied force. All this was done without congressional authorization. 

   In reaction against the imperial presidencies of Lyndon Johnson and Richard Nixon, Congress attempted in the 1970s to handcuff the presidency regarding foreign affairs. In the summer of 1973 it began to cut off funds for military activity in Southeast Asia, thus ensuring the subsequent slaughter of millions. Then in November Congress passed, over Nixon's veto, the War Powers Resolution, designed to make future armed ventures the joint responsibility of Congress and the White House. The resolution stipulated that "in every possible instance" the president must "consult with Congress" before sending American forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated." If in the absence of a declaration of war the president should send troops into hostile situations or enlarge combat forces where they were already stationed, he was required to notify Congress within forty-eight hours, and if Congress did not vote to approve the deployment, the forces must be withdrawn in sixty days. 

        As a gesture, the War Powers Resolution may have been a wholesome corrective to abuses of presidential power, but as a practical matter it was ineffectual. Every president from Gerald Ford through the first George Bush took the position that it was unconstitutional and acted more or less as if it did not exist. As for Bill Clinton, when he launched his tail-wags-dog raids on an aspirin factory in the Sudan and an empty terrorist camp in Afghanistan, plus his bogus war to save Kosovo from the Serbs, he wantonly ignored the War Powers Resolution. Many critics saw through his ploy, but almost no one in government protested that he had exceeded his authority. 

        One is justified in asking whether, in the absence of restraints by either the Congress or the courts, there are any barriers to the president's simply doing as he pleases in conducting foreign relations. The only limit I can think of is the power of public opinion, and that, though real, is problematical. Except for the lunatic left, which is concentrated in academia and the media, Americans are a patriotic people who prefer to believe that whatever we do in relation to other nations is for the best. They can also see and comprehend what is happening worldwide, even when the media distort or decline to report the news. Thus, for example, they understood that Ronald Reagan's foreign policy was masterful and that he in fact won the Cold War with the Soviet Union--as, by the way, did most Europeans--though the media reported that monumental triumph as if Reagan had had nothing to do with it. 

        And yet most Americans really don't care much about what happens elsewhere in the world, even if our armed forces are off shooting or bombing somebody. They become seriously interested only if it is somehow drastically brought home, and the development of smart weaponry together with the institution of the all-volunteer military has made it increasingly unlikely that anything short of a genuine world war will cause them to take overseas fighting seriously. In that sense, popular opinion forms less of a brake on overseas adventuring than it once did. 

On the other hand, our tolerance level has been lowered immensely, and I do not believe it would require a great deal of inconvenience to get people out in the streets in protest. When people took to the streets during the Vietnamese conflict, older Americans were surprised, having been lulled by the relative unanimity of World War II into believing that Americans don't do that sort of thing. They forgot that during every other declared war in American history large segments of the population objected and did what they could to sabotage the war effort. In other words, Americans do do that sort of thing, and they are capable of doing it again. And, on balance, I think that presidential administrations have more to fear from the people than the people have to fear from misguided, unchecked presidential power. 

        What of the future? History suggests that a twenty-first-century president needs to articulate a coherent and restrained foreign policy that is clearly in the national interest, which he can then implement with the support of the American people. Whether that will happen is anybody's guess.