The Imperial Presidency

First Mariner Books edition 2004

Copyright © 1973 by Arthur M. Schlesinger, Jr.

Epilogue copyright © 1989 by Arthur M. Schlesinger, Jr.

Introduction copyright © 2004 by Arthur M. Schlesinger, Jr.

ALL RIGHTS RESERVED

For information about permission to reproduce selections from this book, write to trade.permissions@hmhco.com or to Permissions, Houghton Mifflin Harcourt Publishing Company, 3 Park Avenue, 19th Floor, New York, New York 10016.

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Library of Congress Cataloging-in-Publication Data

Schlesinger, Arthur Meier, date.

The imperial presidency / Arthur M. Schlesinger, Jr.; with a new introduction by the author.

p. cm.

Bibliography: p.

Includes index.

ISBN 0-618-42001-0 (pbk.)

1. Presidents—United States—History. 2. Executive power—United States—History. I. Title.

JK511.S35 1989 89-35462

353.03'13'09—dc20 CIP

A portion of this book appeared in the Atlantic, copyright © 1973 by The Atlantic Monthly Company. The epilogue appeared in different form in The Cycles of American History, copyright © 1986 by Arthur M. Schlesinger, Jr.

eISBN 978-0-547-52735-2

v2.0917

For

Alexandra

Acknowledgments

I AM INDEBTED to the kindly and searching counsel of a number of friends who read parts of this work—Benjamin V. Cohen, Joseph L. Rauh, Jr., Abraham Sofaer, Herman Kahn, and Herbert Wechsler—and I particularly absolve the lawyers in this group from responsibility for the legal and constitutional solecisms that unquestionably linger in the text. I am indebted too for many courtesies to the library staffs of the Graduate School of the City University of New York, of the Council on Foreign Relations, and of the Association of the Bar of the City of New York. I could not possibly have completed this book without the unfailingly cheerful and resourceful assistance of Gretchen Stewart, and I am endlessly grateful to her, as well as to Mary Chiffriller and Bonnie Lurer, for the long and exacting hours they spent over their typewriters. Without the patient labor of Bernice Colt there would be no index. My debt to Alexandra Emmet Schlesinger is immeasurable and inexpressible.

Arthur M. Schlesinger, Jr.

Introduction to the Mariner Edition

Back to the Imperial Presidency

A FEW YEARS BACK, the Imperial Presidency seemed to be finished. President Bill Clinton was on the ropes, facing a special prosecutor and impeachment. The presidency appeared a stricken institution in grave trouble—or so presidential scholars imagined.

In August 1998 I wrote an op-ed piece for the New York Times entitled So Much for the Imperial Presidency. The presidency, I wrote, was harried and enfeebled by an obsessed special prosecutor. Fellow presidential scholars shared in obituaries for the Imperial Presidency. The U.S. presidency, wrote Richard E. Neustadt, has been progressively weakened over the past three decades to the point where it is probably weaker today than at almost any time in the preceding century. Michael Beschloss chose The End of the Imperial Presidency as the title of his column portraying George W. Bush as the first truly post-imperial president.

Alas, the obituaries were premature. I had written The Imperial Presidency in the latter days of Richard M. Nixon. The American Constitution, the book argues, envisages a strong presidency within an equally strong system of accountability. When the constitutional balance is upset in favor of presidential power and at the expense of presidential accountability, the presidency can be said to become imperial.

The perennial threat to the constitutional balance, I suggested, arises in the field of foreign affairs. Confronted by presidential initiatives in domestic policy, the countervailing branches of the national government—the legislative and the judiciary—have ample confidence in their own information and judgment. In this area they do not hesitate to challenge what they deem to be executive pretensions, nor do they lightly surrender power to the presidency. The media and public opinion, those extraconstitutional checks on the abuse of executive power, are similarly assured in dealing with domestic policy.

But confronted by presidential initiatives in foreign affairs, Congress and the courts, along with the press and the citizenry, often lack confidence in their own information and judgment and are likely to be intimidated by executive authority. The inclination in foreign policy is to let the president have the responsibility and the power—a renunciation that results from congressional pusillanimity as well as from presidential rapacity. The more acute the crisis, the more power flows to the president.

It is chiefly in its foreign relations, Alexis de Tocqueville noted early on, that the executive power of a nation finds occasion to exert its skill and its strength. If the existence of the American Union were perpetually threatened, if its chief interests were in daily connection with those of other powerful nations, the executive would assume an increased importance. But the young republic Tocqueville visited in the 1830s had lived, at least since the War of 1812, in happy isolation from world power struggles. So, the President of the United States, Tocqueville observed, possesses almost royal prerogatives which he has no opportunity of exercising.

By the twentieth century the United States itself had become a world power, its interests in daily connection with those of other powers; and the half century from Pearl Harbor to the breakup of the Soviet Union was experienced as a time of perpetual threat to the American Union. The chronic international crisis known as the Cold War at last gave presidents the opportunity for sustained exercise of those almost royal prerogatives. What began as emergency powers temporarily confided to presidents soon hardened into authority claimed by presidents as constitutionally inherent in the presidential office: thus the Imperial Presidency.

The rise of the Imperial Presidency ran against the original intent of the constitutional framers. With the war-making propensities of absolute monarchs in mind, the framers of the Constitution took care to assign the vital foreign policy powers exclusively to Congress. Article I gave Congress not only the appropriations power—itself a potent instrument of control—but also the power to declare war, to raise and support armies, to provide and maintain a navy, to regulate commerce, and to grant letters of marque and reprisal. This last provision represented the eighteenth-century equivalent of retaliatory strikes and empowered Congress to authorize limited as well as general war.

Even Alexander Hamilton, the Constitutional Convention’s foremost proponent of executive energy, endorsed this allocation of powers. The history of human conduct, he wrote in Federalist 75, does not warrant that exalted opinion of human virtue which would make it wise to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of ... a President of the United States. What seemed at stake was not only the wisdom of the policy but also the freedom of the people. Perhaps it is a universal truth, said James Madison, that the loss of liberty at home is to be charged to provisions against danger, real or pretended. from abroad.

The specific grants of authority to the executive in foreign policy were trivial compared with the authority specifically granted to Congress. The presidency was given the power of receiving and appointing ambassadors and, by implication, of serving as the channel of communications to foreign states. The president as commander in chief was given the power to direct the armed forces once war was authorized or begun and, by implication, the power to repel sudden attacks when Congress was not in session. However, Article II vested general executive power in the presidency. And, as Federalist 64 and 75 emphasized, the structural advantages of the presidency—unity, decision, secrecy, dispatch, stability of purpose, special sources of information—made the executive the prime agent in dealings with foreign states.

Those structural advantages worked against the framers’ original intent. It is of the nature of war, Hamilton wrote in the 8th Federalist, to increase the executive at the expense of the legislative authority. The pattern of presidential aggrandizement under the spur of international crisis was visible from the start. In opposition Thomas Jefferson had been the apostle of strict construction and the foe of executive initiative. But viewing problems from the White House, he sent a naval squadron to the Mediterranean under secret orders to fight pirates in the Barbary War, applied for congressional sanction six months later, then misled Congress as to the nature of his orders. He unilaterally authorized the seizure of armed vessels in waters extending to the Gulf Stream, engaged in rearmament without congressional appropriations, withheld information from Congress, and invoked John Locke’s doctrine of emergency prerogative—the law of self-preservation—to justify action beyond congressional authorization.

Early presidents did not hesitate to engage in what later generations called covert operations against foreign states and to do so without congressional knowledge. James Madison sent Joel R. Poinsett as a secret agent to Latin America and winked at his clandestine revolutionary adventures in Argentina and Chile; the secretary of state removed Poinsett’s dispatches from State Department files lest Congress request them. Both Madison and James Monroe used covert action to facilitate the annexation of Florida.

Presidential adventurism in the early republic differed in salient respects, however, from the Imperial Presidency. As Abraham D. Sofaer shows in his magisterial work, War, Foreign Affairs, and Constitutional Power: The Origins(1976), early presidents deliberately selected venturesome agents, deliberately failed to approve or to disapprove their constitutionally questionable plans, and deliberately denied Congress the information to determine whether aggressive acts were authorized—all precisely because the presidents wanted their men in the field to do things they knew lay beyond their constitutional right to command. At no time, Sofaer writes of the early period, did the executive claim ‘inherent’ power to initiative military action.

The early presidents thus usurped power, and usurpation creates no constitutional precedents. It is the assertion of inherent powers that defines the Imperial Presidency and creates precedents for the future. The contrast in constitutional claims between the emergency policies of Abraham Lincoln and Franklin D. Roosevelt and those of post-World War II presidents illustrates the distinction.

Both Lincoln and Roosevelt were well aware of what the Constitution said about the war-making power. In 1848 Lincoln called the Mexican War illegal and unconstitutional because it was unilaterally provoked, so he believed, by President James K. Polk. The Founding Fathers at Philadelphia, Lincoln said, had "resolved to so frame the Constitution that no one man should hold power of bringing this oppression [war] upon us. Similarly, Roosevelt in 1940, promising supplies to a French government under Nazi assault, carefully added: These statements carry with them no implication of military commitments. Only Congress can make such commitments."

Yet after the attack on Fort Sumter in 1861, Lincoln, on his own, without congressional authorization, assembled the militia, enlarged the army and navy beyond their authorized strength, called out volunteers for three years’ service, spent unappropriated public funds, suspended habeas corpus, arrested persons represented as involved in disloyal practices, and instituted a naval blockade of the rebel states. In the same way, in 1941, when German submarine warfare threatened to sever the lifeline of supplies to Britain, Roosevelt, on his own, without congressional authorization, dispatched troops to Iceland, instituted a convoy system, issued a shoot on sight order to the navy, and launched an undeclared war in the North Atlantic.

But neither president based his action on claims of inherent power. His emergency measures, Lincoln told Congress when he finally convoked a special session, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity; trusting then as now that Congress would readily ratify them. Roosevelt, like Lincoln, relied on his sense of popular demand and public necessity. The passage of the Lend-Lease Act (1941), after uninhibited public and congressional debate, had aligned the United States with Great Britain in the European war. If Congress voted arms to Britain as national policy, then, inferentially, national policy was to make sure the arms got to Britain. Roosevelt added a murky proclamation of unlimited national emergency. But, like Lincoln, he made no claims of inherent power to do what he believed necessary to save the nation.

Both Lincoln and Roosevelt undertook acts they knew to be beyond the Constitution. Both did so in times of transcendent crisis when the life of the nation seemed truly at stake. Both acted, knowingly or not, on Locke’s doctrine of emergency prerogative, trusting that Congress would eventually approve their actions. Both men understood and affirmed that emergency prerogative must expire with the emergency. The Executive power itself, said Lincoln, would be greatly diminished by the cessation of actual war. When the war is won, said Roosevelt, the powers under which I act automatically revert to the people—to whom they belong. Neither Lincoln nor Roosevelt claimed an inherent and routine presidential right to do what they did. That claim, the essence of the Imperial Presidency, was a product of the second half of the twentieth century.

The rarity of international crisis also delayed the emergence of the Imperial Presidency. For, while war increased presidential power, peace brought a reaction against presidential excess. The Civil War, Henry Adams wrote, for the time obliterated Constitution. It produced what Benjamin R. Curtis, one of the two dissenting justices in Dred Scott v. Sanford(1857), charged was a military despotism. But once the crisis ended, the other two branches of government lost no time in reasserting their constitutional powers. A year after Appomattox the Supreme Court held ex parte Milligan(1866) that Lincoln’s prosecution of a proslavery conspirator under the martial law behind the lines violated the Constitution. In another two years Lincoln’s successor in the White House found himself at the bar of impeachment. The republic entered the era characterized by Woodrow Wilson as one of congressional government.

Wilson himself, writing a new preface to Congressional Government after the Spanish-American War, remarked on the greatly increased power ... given the President by the plunge into international politics. When foreign policy became the nation’s dominant concern, Wilson said, the executive must of necessity be its guide: must utter every initial judgment, take every first step of action, supply the information upon which it is to act, suggest and in large measure control its conduct. As president during the First World War, Wilson acted on his own model.

But once again the return of peace shrank presidential power, as the Senate quickly showed by rejecting the Treaty of Versailles. In the 1930s Roosevelt, a mighty domestic president, could not prevent Congress from imposing rigid neutrality legislation that put American foreign policy in a straitjacket while Germany and Japan ran amok in Europe and Asia.

The end of the Second World War brought the customary diminution of presidential power. A year after Roosevelt’s death his successor was so unpopular that voters said To err is Truman and elected a Republican Congress. The next year Congress gained posthumous revenge against the powerful wartime president by proposing what became the Twenty-second Amendment, thereby limiting all future presidents to two terms.

But this time the diminution was brief. The Cold War, by generating a climate of sustained and indefinite crisis, aborted the customary reversion of power to the coordinate branches. The most visible sign of growing presidential imperialism was the transfer of the power to go to war from Congress to the executive. Ten years after Roosevelt told France that only Congress could make military commitments, President Harry S. Truman, confronted by the North Korean invasion of South Korea, sent American forces to war on his own.

Historically, Congress had preserved the rough balance of the Constitution because it retained three vital powers: the war-making power, the power of the purse, and the power of oversight and investigation. In 1950 it relinquished the war-making power. Truman fought in Korea, Lyndon B. Johnson in Vietnam, and Richard M. Nixon in Cambodia without believing that their dispatch of troops into combat required explicit congressional authorization (Congress provided ambiguous authorization in the case of Vietnam through the 1964 Gulf of Tonkin Resolution). In 1969 through 1974, the Nixon administration tried systematically and, until the Watergate affair, successfully to restrict the other two powers: countering the power of the purse by the doctrine of the unlimited impoundment of appropriated funds and countering the power of oversight and investigation by the doctrine of unreviewable executive privilege (a novel term, first used officially in 1958) and the extension of the executive secrecy system. Had Nixon succeeded in imposing these doctrines on top of his amplified claims for the presidential war-making power, he would have gravely weakened Congress as a serious partner in the constitutional order.

Nixon carried the Imperial Presidency still further by using against his political opponents at home—enemies, he called them—powers that the presidency had accumulated to save the republic from foreign foes. Invoking national security as an all-purpose justification, Nixon and his attorney general, John Mitchell, set up a secret White House posse to burgle offices, forge historical documents, and wiretap officials, embassies, newspapermen, and enemies. When the President does it, Nixon claimed in 1977, that means that it is not illegal. Congress eventually roused itself. Articles of impeachment charged Nixon with acting in a manner contrary to his trust as President and subversive of constitutional government, and Nixon resigned rather than be impeached and face a trial. Mitchell was later found guilty of peijury, conspiracy, and obstruction of justice, and served a prison term.

The Imperial Presidency reached a twentieth-century climax with Nixon. The post-Watergate reaction cut back on some presidential excesses. None of Nixon’s successors, for example, used emergency powers against political opponents. The presidency of Jimmy Carter even led to concerns about the impotence of the office. We have not an imperial presidency, former president Gerald Ford said in 1980, but an imperiled presidency. But such lamentations were soon refuted when Ronald Reagan showed that a president with only a misty understanding of issues could still dominate the government and lead the country.

Nor did the reaction constrain presidential assumption of the war-making power. Reagan in the case of Grenada and George H. W. Bush in the cases of Panama and Iraq insisted on what Bush called the President’s constitutional authority to use the armed forces to defend vital U.S. interests. In the Iraq case, Congress rescued Bush from a constitutional conflict by voting to authorize the first Gulf War. However, the end of the Cold War materially weakened the national security arguments for the Imperial Presidency.

The farewell to the Cold War and, for a moment, to international crisis meant the customary setback for presidential power. The presidency was evidently in decline once again. Such at least was the judgment of presidential scholars. But we reckoned without Osama bin Laden and al-Qaeda.

Once again, international crisis has resurrected the Imperial Presidency. Much of the impact of revitalized presidential power on American liberties is dependent on the presidential choice of attorney general. After the First World War, a sick and distracted Woodrow Wilson permitted his attorney general, A. Mitchell Palmer, the Fighting Quaker (a.k.a. the Quaking Fighter), to run wild in fomenting a Red Scare series of raids and mass arrests. During the Second World War, Franklin D. Roosevelt’s selection as attorney general was Francis Biddle, a strong civil libertarian. The result was a pretty good wartime record on individual rights (with, of course, the notable exception of the internment of Japanese Americans, which Biddle opposed). During the Cold War, John Mitchell happily connived with his boss Nixon at dirty tricks and became the first attorney general to go to jail.

The situation in Washington today? President George W. Bush’s attorney general, John Ashcroft, a former senator, a politician of the hard right, and a religious zealot, is on the model of A. Mitchell Palmer rather than of Francis Biddle. According to Steven Brill, the legal critic, even some of his own deputies at Justice were surprised by how uninterested he was in the niceties of the law. One veteran staffer recalls that ... he had never once heard Ashcroft cite a legal case and had watched him blanch when someone in the room cited a case, as if that person was discourteously speaking another language. A righteous fellow, a communicant of an evangelical sect that disapproves of drinking, dancing, going to movies, and gazing at nude statues, Ashcroft puts one in mind of Mr. Dooley’s definition of a fanatic—someone who does what he thinks th’ Lord wud do if He only knew th’ facts in th’ case.

Ashcroft is given to early morning prayer meetings held in his office. When he was elected to the Senate, according to Judy Bachrach’s sketch in Vanity Fair, friends anointed his head with oil in the style of the ancient kings of Israel, although in this case it was Crisco oil from the kitchen. Ashcroft, a man of pious poses, lacked when young a stern view of his patriotic duty. During the Vietnam War, he sought and received seven deferments, including an occupational deferment for teaching business law to undergraduates at a Missouri college, an assignment, according to the New Republic,he lined up with the help of a family friend. Since Ashcroft was presumably in favor of the Vietnam War, he joins the serried ranks of chickenhawks that adorn the second Bush presidency. In Vice President Cheney’s famous phrase, the Bush chickenhawks had other priorities in the ’60s than military service in Vietnam. They have shown no reluctance, however, over sending young Americans to the Iraq shooting gallery.

Ashcroft’s chosen national security vehicle is the 342-page USA Patriot Act, rushed to passage without hearings or committee reports forty-five days after 9/11 by a vote of 357 to 66 in the House and 98 to 1 in the Senate. (All honor to Russ Feingold of Wisconsin, the single Senate holdout!) The Patriot Act increases the discretionary power of federal agents to collect information about individuals, to search their homes, to inspect their reading habits and their Internet queries, to view their credit reports, to conduct wiretaps without warrants, to overhear lawyer-client telephone conversations without court orders, and to reduce judicial supervision and to spy on domestic organizations and advocacy groups. In a report to Congress, the Justice Department said that federal agents had conducted hundreds of bugging and surveillance operations and visited numerous libraries and mosques.

The FBI is part of Attorney General Ashcroft’s domain. On Christmas Eve 2003 the FBI sent a zany bulletin to eighteen thousand police organizations warning against people carrying almanacs. There is nothing more innocent, one would think, than to give next year’s World Almanac for Christmas. But, according to the FBI, terrorists might use almanacs to assist with target selection and preoperational planning. Citizens were asked to report almanac carriers to the local U.S. Joint Terrorism Task Force.

The Patriot Act alarmed libertarians on the right, such as William Safire of the New York Times, as well as the American Civil Liberties Union crowd on the left. Bob Barr of Georgia, the dogged impeacher of Bill Clinton, joined Grover Norquist and David Keene, veteran right-wing leaders, in an ACLU rally protesting the act. As Norquist said, Some day Hillary Clinton’s going to be attorney general, and I hope conservatives keep that in mind.

And the temper of the administration as shown by its wish lists is even more alarming. In January 2003 there fell into the hands of Charles Lewis, head of the invaluable Center for Public Integrity, an eighty-page draft of a presumed Patriot Act II. The proposed amendments would authorize secret arrests, relax restrictions on wiretapping, facilitate the stripping of citizenship, and in general limit the role of judicial oversight and give the Department of Justice looser standards to brand individuals and groups as terrorist suspects. The libertarian, left-wing coalition bridled, and thus far there has been no Patriot II.

The Bush Pentagon meanwhile hauled out of oblivion a discredited official, John Poindexter, convicted of five felony counts of lying to Congress about the Iran-Contra affair (the verdict was reversed on a technicality). Poindexter headed a so-called Total Information Awareness Project, an electronic data bank based on federal, state, local, and commercial records, credit card transactions, telephone calls, travel reservations, and so on. This Orwellian concept was too much even for Republicans, and TIA was stopped in its tracks.

The plight of the 660 men (and boys) picked up in Afghanistan after 9/11 and transported to Guantánamo Bay, the American naval base in Cuba, excited little interest in the United States, but a good deal abroad, especially in Great Britain. The U.S. government declined to grant al-Qaeda jihadists prisoner-of-war status for understandable reasons—there was no organized state behind them. Also, government lawyers denied that Guantánamo, held under lease, was sovereign U.S. soil; so U.S. law did not apply. The detainees were kept in ignorance of the charges against them and were denied access to counsel, to hearings, and to their families. They existed in legal limbo.

It is difficult to find serious security reasons for presidential suspension of due process. Some detainees were unquestionably al-Qaeda or Taliban thugs, fanatics, and killers; others may have been innocent bystanders, snatched up by accident in random sweeps. The detainees included octogenarians and teenagers. They were collectively defined as unlawful enemy combatants, a classification unknown to international law. They were subject to intensive regimens of day-and-night interrogation. A senior defense official told the New York Times that detainees would be held for many years, perhaps indefinitely. Some among them have attempted suicide.

The question, said Lord Steyn, a judge on Britain’s highest court, is whether the quality of justice envisaged for the prisoners at Guantanamo Bay complies with the minimum international standards for the conduct of fair trials. The answer can be given quite shortly. It is a resounding ‘No.’ After pleas from Prime Minister Tony Blair, five British prisoners were released, some of whom then claimed to the London press that they had been beaten by American guards. Three of the other released British detainees, reported the Economist,confirm Mr. AlHarith’s claim of frequent physical abuse and beating. They had each been subject to more than two hundred interrogations lasting up to twelve hours. American officials in turn denied the stories. The conflict in testimony invites a congressional investigation.

Meanwhile, disclosures about the American abuse of detainees at Abu Ghraib, Saddam Hussein’s old torture center, appalled and disgusted the world, including the United States. Among other surprises was the amount of chatter back and forth within the Bush administration about definitions of torture, a debate not hitherto covered by the previously obsequious American media.

The second Bush presidency is indeed the most secretive administration since Nixon. John W. Dean, who knew the Nixon White House well, writes, George W. Bush and Richard B. Cheney have created the most secretive presidency of my lifetime. Their secrecy is far worse than during Watergate. Dean should have added Ashcroft to his list of secrecy addicts.

In 1966 Congress had passed the Freedom of Information Act based on the proposition that disclosure should be the rule, not the exception, and that the burden should be on government to justify the withholding of records. This was a most beneficial law until Ashcroft got hold of it. Rejecting the spirit of the law, the attorney general advised federal officials that when they decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions.

Following the argument over who owned Richard Nixon’s papers, Congress had passed in 1978 the Presidential Records Act based on the proposition that White House records belonged to the American people and should be made available within a dozen years. A president could restrict access to six enumerated categories, ranging from national security papers to medical files. But the 1978 act breathed the post-Watergate spirit of open government.

One of President Bush’s early actions was to alter the methodology and narrow the scope of the Presidential Records Act, and to do so—i.e., amend a congressional statute—by executive order. Executive Order 13223 gave sitting presidents the right to cancel the release of papers from a previous administration, even though the previous administration had approved their release. This gave rise to the uneasy suspicion that the people behind Executive Order 13223 had secrets they wished to hide from history. President Bush’s attack on the Presidential Records Act enraged historians, political scientists, archivists, and journalists, and the American Historical Association organized a lawsuit. In Congress the executive order offended Republicans as well as Democrats, and in October 2002 the House Government Reform Committee unanimously voted to overturn it. The White House moved quickly to suppress the rebellion.

Imperial suggests empire, and the status of the United States as the world’s unchallengeable superpower headed by an Imperial Presidency rouses speculation over the future and fate of the American Empire. Comparisons are often made to the Roman Empire and to the modern British and French Empires. Is the American Empire a fitting successor?

Now Americans, unlike Romans, Britons, and the French, are not colonizers of remote and exotic places. We peopled the vacant spaces, so we whites deemed them, in continental expansion from sea to shining sea, but we did not send away our youngest sons to man the outposts of empire. Britain really created a British world in India and Africa, as the French did in equatorial Africa and Indochina. Americans, wrote James Bryce in 1888, have none of the earth-hunger which burns in the great nations of Europe.

Some of our political leaders did. Jefferson thought Cuba the most interesting addition which could ever be made to our system of States and told John C. Calhoun in 1820 that the United States ought, at the first possible opportunity, to take Cuba. John Quincy Adams agreed, considering the annexation of Cuba to be indispensable to the continuance and integrity of the Union itself and thinking Cuba would inexorably fall to the United States by the law of political gravitation.

As for Canada, J. Q. Adams held our proper domain to be the continent of North America. That the whole continent of North America and all its adjacent islands, said Henry Adams, J.Q.’s grandson, in 1869, must at last fall under the control of the United States is a conviction absolutely ingrained in our people. Long ere the second centennial arrives, Walt Whitman wrote in Democratic Vistas(1871), there will be some forty to fifty great States, among them Canada and Cuba. As late as 1895, Henry Cabot Lodge declared, From the Rio Grande to the Arctic Ocean there would be but one flag and one country.

These things, so authoritatively predicted, never came to pass. The American people were not much interested in empire. The United States has not annexed Cuba or Canada. There is no likelihood that we ever will. Texas waited outside the Union for a decade as an independent republic and then entered only through presidential sleight of hand, John Tyler procuring admission by joint resolution after the Senate had rejected a treaty of annexation. The movement during the Mexican War to take all Mexico failed. President Polk even feared that Congress would turn against the war and that he would lose California and New Mexico. The Ostend Manifesto was disclaimed, and the filibusters of the 1850s were repudiated.

After the Civil War, Secretary of State William E. Seward’s ambitious expansionist program got nowhere, except for the flyspeck of Midway Island and for Alaska, which Russia wanted to get rid of and which Congress reluctantly accepted after members were bribed, perhaps by the Russian minister. The Senate rejected the Hawaiian reciprocity treaty, the purchase of the Virgin Islands from Denmark, the annexation of Santo Domingo, and the annexation of Samoa. It took half a century of argument before we annexed Hawaii, and this might not have taken place had it not been for the Spanish-American War. Even with that war we still did not annex Cuba. The United States did annex the Philippines, but the number of Americans who lived out their lives in the archipelago was negligible, and we set the islands free forty years later. The imperial dream has encountered consistent indifference and recurrent resistance through American history. The record hardly sustains the thesis of a people red-hot for empire.

Then there is the question of control. The term ‘empire,’ writes Professor G. John Ikenberry, summing up the common understanding, refers to the political control by a dominant country of the domestic and foreign policies of weaker countries. Rome, London, Paris, despite slow and awkward lines of communication, really ruled their empires. Today communication is instantaneous; but, despite the speed of contact, Washington, far from ruling an empire in the old sense, becomes the prisoner of its dependent states.

This was the case with South Vietnam in the 1960s, and it has been the case ever since with Israel. Governments in Saigon forty years ago and in Tel Aviv today have been sure that the United States would not pull out altogether, or even significantly reduce American aid. They therefore were enabled to defy American commands and demands with impunity. Pakistan, Taiwan, Egypt, South Korea, and the Philippines are similarly unimpressed, evasive, or defiant. For all our superhuman military strength, we cannot get our Latin American neighbors, or even the tiny Caribbean islands, to do our bidding. Americans are simply not competent imperialists, as demonstrated in Iraq in 2004. The so-called American Empire is in fact a feeble imitation of the Roman, British, and French Empires.

And yet the American presidency has come to see itself in messianic terms as the appointed savior of a world whose unpredictable dangers call for rapid and incessant deployment of men, arms, and decisions behind a wall of secrecy. This view seems hard to reconcile with the American Constitution. The impact of 9/11 and of the overhanging terrorist threat gives more power than ever to the Imperial Presidency and places the separation of powers ordained by the Constitution under unprecedented, and at times unbearable, strain.

But superhuman military power cannot solve everything, even if American presidents were free to use such power without constraints, as they are not. As a world empire, the United States is undone by its own domestic politics and its own humane, pluralistic, and tolerant ideals. The premises of our national existence undermine our imperial aspirations. So the Imperial Presidency redux is likely to continue messing things up, as we are doing so successfully in Iraq, the needless war. Then democracy’s singular virtue—its capacity for self-correction—will one day swing into action.

Arthur M. Schlesinger, Jr.

April 2004

Foreword to the 1973 Edition

THE AMERICAN CONSTITUTION was established, for better or worse, on an idea new to the world in the eighteenth century and still uncommon in the twentieth century—the idea of the separation of powers. This forbidding phrase represented a distinctive American contribution to the art of government. There had been no such doctrine in medieval times. Before the eighteenth century, everyone assumed that government required the unification of authority.¹ But the Founding Fathers, who saw conflict as the guarantee of freedom, grandly defied the inherited wisdom. Instead of concentrating authority in a single institution, they chose to disperse authority among three independent branches of government, equipping the leaders of each, in the words of the 51st Federalist Paper, with the necessary constitutional means and personal motives to resist encroachments of the others. These branches, as every schoolchild used to know, were the executive, the legislative, and the judiciary. The Constitution thus institutionalized conflict in the very heart of the American polity.

The question has always remained—and has provided a central theme of American political history—how a government based on the separation of powers could be made to work. The Founding Fathers were good Newtonians, and their system of checks and balances, conceived almost as a mechanism, contained an inherent tendency toward inertia. This was all right for a while: the point of the system as Justice Brandeis later observed, was not to promote efficiency but to preclude the exercise of arbitrary power.² Still, efficiency had its claims on government too, especially in a rapidly changing society and even more especially in times of danger. And was government after all a mechanism? That Founding Father manqué Woodrow Wilson said it was not a machine, but a living thing ... shaped to its functions by the sheer pressure of life and added, No living thing can have its organs offset against each other as checks, and live.³

The metaphor of government as organism had its difficulties too. But experience did demonstrate rather quickly that the system of checks and balances would not work at all unless one of the three branches took the initiative and that it worked best in response to vigorous presidential leadership. Such leadership was necessary to overcome the tendency toward inertia. It enabled the American republic to meet the great crises of its history. It also set up a permanent tension between the Presidency and the other branches of government. And in our own time it has produced a conception of presidential power so spacious and peremptory as to imply a radical transformation of the traditional polity. In the last years presidential primacy, so indispensable to the political order, has turned into presidential supremacy. The constitutional Presidency—as events so apparently disparate as the Indochina War and the Watergate affair showed—has become the imperial Presidency and threatens to be the revolutionary Presidency.

This book does not deal systematically with all facets and issues of presidential power. A number of excellent studies already do that. Nor does it deal primarily with the shift in the political balance between Congress and the Presidency—as exhibited, for example, in the increasing presidential domination of the legislative process or in the increasing delegation of power by Congress to presidents. It deals essentially with the shift in the constitutional balance—with, that is, the appropriation by the Presidency, and particularly by the contemporary Presidency, of powers reserved by the Constitution and by long historical practice to Congress.

This process of appropriation took place in both foreign and domestic affairs. Especially in the twentieth century, the circumstances of an increasingly perilous world as well as of an increasingly interdependent economy and society seemed to compel a larger concentration of authority in the Presidency. It must be said that historians and political scientists, this writer among them, contributed to the rise of the presidential mystique. But the Imperial Presidency received its decisive impetus, I believe, from foreign policy; above all, from the capture by the Presidency of the most vital of national decisions, the decision to go to war.

This book consequently devotes special attention to the history of the war-making power. The assumption of that power by the Presidency was gradual and usually under the demand or pretext of emergency. It was as much a matter of congressional abdication as of presidential usurpation. As it took place, there dwindled away checks, both written and unwritten, that had long held the Presidency under control. The written checks were in the Constitution. The unwritten checks were in the forces and institutions a president once had to take into practical account before he made decisions of war and peace—the cabinet and the executive branch itself, the Congress, the judiciary, the press, public opinion at home and the opinion of the world. By the early 1970s the American president had become on issues of war and peace the most absolute monarch (with the possible exception of Mao Tse-tung of China) among the great powers of the world.

The Indochina War placed this problem high on the national consciousness. But the end of American military involvement in Southeast Asia would not extinguish the problem. The assertions of sweeping and unilateral presidential authority remained official doctrine in foreign affairs. And. if the president were conceded these life-and-death decisions abroad, how could he be restrained from gathering unto himself the less fateful powers of the national polity? For the claims of unilateral authority in foreign policy soon began to pervade and embolden the domestic Presidency. Perhaps it is a universal truth, Madison had written Jefferson, that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.⁴ The all-purpose invocation of national security, the insistence on executive secrecy, the withholding of information from Congress, the refusal to spend funds appropriated by Congress, the attempted intimidation of the press, the use of the White House itself as a base for espionage and sabotage directed against the political opposition—all signified the extension of the Imperial Presidency from foreign to domestic affairs. Underneath such developments there could be discerned a revolutionary challenge to the separation of powers itself.

This book is written out of a double concern. The first concern is that the pivotal institution of the American government, the Presidency, has got out of control and badly needs new definition and restraint. The second concern is that revulsion against inordinate theories of presidential power may produce an inordinate swing against the Presidency and thereby do essential damage to our national capacity to handle the problems of the future. The answer to the runaway Presidency is not the messenger-boy Presidency. The American democracy must discover a middle ground between making the President a czar and making him a puppet. The problem is to devise means of reconciling a strong and purposeful Presidency with equally strong and purposeful forms of democratic control. Or, to put it succinctly, we need a strong Presidency—but a strong Presidency within the Constitution.

Scholars have long considered aspects of the problem. Much of the historical recital in these pages is at least a thrice-told tale. Yet the contemporary argument rushes along with astonishingly little exact reference to the national experience. This book is written in the hope, or faith, that an awareness of the way presidents and Congresses have struggled with past questions of national decision may impart a firmer sense of the tradition in which both the Presidency and Congress must act in the future if we are to preserve the continuities of our democracy. For, unless the American democracy figures out how to control the Presidency in war and peace without enfeebling the Presidency across the board, then our system of government will face grave troubles.

1. What the Founding Fathers Intended

THE PLACE TO BEGIN is Philadelphia in the summer of 1787. This is not because the Founding Fathers were infallible, or because they anticipated all the perplexities of the American future, or because their original intent can be supposed to decide constitutional questions in perpetuity. The Constitution, as Chief Justice Marshall said in his most famous opinion, was "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." ¹ Woodrow Wilson similarly objected to taking the Constitution as a mere legal document, to be read as a will or contract. If composed in the spirit of Newton, it has to be construed in the spirit of Darwin. It was a vehicle of life, and its meaning was determined not by the original intentions of those who drew the paper, but by the exigencies and the new aspects of life itself. ² Nor, for that matter, is the ascertainment of original intent all that easy. No single fault has been the source of so much bad history, C. H. McIlwain reminds us, as the reading back of later and sharper distinctions into earlier periods where they have no place. ³

I

For all this, there is great value in consulting the Founding Fathers. Even if the search for original intent is difficult, it is not impossible. If original intent cannot settle constitutional questions, it can throw essential light on them. And it can settle related historical questions—whether or not, for example, presidential practice was indeed, as later Presidents liked to claim, what the Founding Fathers designed and desired. Above all, the Founding Fathers were exceptionally able and intelligent men, wiser on the whole than their posterity. They thought hard about these matters, and their views demand the most careful consideration.

In drafting the Constitution, they were, of course, concerned to correct the deficiencies of the Articles of Confederation, under which the rebellious colonies had been governed during the Revolution. The Articles had bestowed executive as well as legislative authority on Congress, establishing in effect parliamentary government without a prime minister. Article VI gave Congress control over the conduct of foreign affairs, and Article IX gave it the sole and exclusive right and power of determining on peace and war. But the Constitution was founded on the opposite principle of the separation of power. The men of Philadelphia therefore had to work out a division of authority between the legislative and executive branches. In domestic policy, this division was reasonably clear. In foreign affairs, it was often cryptic, ambiguous and incomplete.

Their experience under the Articles led the Founding Fathers to favor more centralization of executive authority than they had known in the Confederation. Many of them probably agreed with Hamilton’s statement in the 70th Federalist that energy in the Executive is a leading character in the definition of good government. Those who disagreed were reassured by the expectation that Washington would be the first head of state. At the same time, their experience under the British crown led the Founding Fathers to favor less centralization of authority than they perceived in the British monarchy. As victims of what they considered a tyrannical royal prerogative, they were determined to fashion for themselves a Presidency that would be strong but still limited.

Nothing was more crucial for the new nation than the successful conduct of its external relations. There was broad agreement that national safety could best be assured through the development of equal trading relations with the states of Europe. America’s plan is commerce, Thomas Paine wrote in Common Sense, and that, well attended to, will secure us the peace and friendship of all Europe, because it is the interest of all Europe to have America as a free port. ⁴ Washington summed up the policy in his Farewell Address: The great rule of conduct for us in regard to foreign nations is, in extending our commercial relations to have with them as little political connection as possible. Given the clear priority the Founding Fathers assigned to commercial over political relations, it is significant that the Constitution vested control over this primary aspect of foreign policy in Congress, assigning it the definite and unqualified power to regulate Commerce with foreign Nations.

The Constitution also brought Congress into the treaty-making process, withholding from the President the exclusive authority enjoyed by European monarchs to make treaties. Where the British King, for example, could conclude treaties on his own, the American President was required to win the consent of two thirds of the Senate. The one can do alone, said Hamilton, what the other can do only with the concurrence of a branch of the legislature. ⁵ And Congress received other weighty powers related to the conduct of foreign affairs: the power to make appropriations, to raise and maintain the armed forces and make rules for their government and regulation, to control naturalization and immigration, to impose tariffs, to define and punish offenses against the law of nations and, above all, to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

II

This last clause—in Article I, Section 8, of the Constitution—was of prime importance. The Founders were determined to deny the American President what Blackstone had assigned to the British King—the sole prerogative of making war and peace. ⁶ Even Hamilton, the most consistent advocate of executive centralization, proposed in the Convention that the Senate have the sole power of declaring war with the executive to have the direction of war when authorized or begun. ⁷

In an early draft, the Constitution gave Congress the power to make war. Every scholar knows the successful intervention by Madison and Gerry—

Mr. MADISON and Mr. GERRY Moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.

—but no one really quite knows what this exchange meant. Among the delegates, Roger Sherman of Connecticut, for example, responded to Madison and Gerry by saying he thought the original language stood very well and that it already permitted the executive to repel and not to commence war. On the other hand, George Mason of Virginia, after announcing that he was agst. giving the power of war to the Executive, because not safely to be trusted with it, then said he preferred declare to make; obviously he did not think he was thereby giving more power to the untrustworthy executive. Professor Lofgren, a most precise student of the episode, can distinguish at least four different interpretations of the Madison-Gerry amendment.⁸

What does seem clear is that no one wanted either to deny the President the power to respond to surprise attack or to give the President general power to initiate hostilities. The first aspect—the acknowledgment that Presidents must on occasion begin defensive war without recourse to Congress—represented the potential breach in the congressional position and would have the most significance in the future. But the second aspect gained the most attention and brought the most comfort at the time. James Wilson, next to Madison the most penetrating political thinker at the Convention, thus portrayed the constitutional solution: this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress. ⁹

The Founding Fathers did not have to give unconditional power to declare war to Congress. They might have said, in language they used elsewhere in the Constitution, that war could be declared by the President with the advice and consent of Congress, or by Congress on the recommendation of the President.¹⁰ But they chose not to mention the President at all in connection with the war-making power. Nor was this because they lacked realism about the problems of national security. In a famous passage in the 23rd Federalist, Hamilton said that the powers of national self-defense must "exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies.... The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances." The Founding Fathers were determined that the national government should have all the authority required to defend the nation. But Hamilton was not asserting these unlimited powers for the Presidency, as careless commentators have assumed. He was asserting them for the national government as a whole —for, that is, Congress and the Presidency combined.

The resistance to giving a single man, even if he were President of the United States, the unilateral authority to decide on war pervaded the contemporaneous literature. Hamilton’s observations on the treaty-making power applied all the more forcibly to the war-making power: The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States. ¹¹ As Madison put it in a letter to Jefferson in 1798: The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care vested the question of war in the Legisl. ¹²

III

At the same time, the Constitution vested the command of the Army and Navy in the President, which meant that, once Congress had authorized war, the President as Commander in Chief had full power to conduct military operations. Of all the cares or concerns of government, said the Federalist, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. ¹³ The designation of the President as Commander in Chief also sprang from a concern to assure civilian control of the military establishment. By making the Commander in Chief a civilian who would be subject to recall after four years, the Founders doubtless hoped to spare America tribulations of the sort that the unfettered command and consequent political power of a Duke of Marlborough had brought to England.

There is no evidence that anyone supposed that his office as Commander in Chief endowed the President with an independent source of authority. Even with Washington in prospect, the Founders emphasized their narrow and military definition of this presidential role. As Hamilton carefully explained in the 69th Federalist, the President’s power as Commander in Chief

would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces ... while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,—all which, by the Constitution under consideration, would appertain to the legislature.

As Commander in Chief the President had no more authority than the first general of the army or the first admiral of the navy would have had as professional military men. The President’s power as Commander in Chief, in short, was simply the power to issue orders to the armed forces within a framework established by Congress. And even Congress was denied the power to make appropriations for the support of the armed forces for a longer term than two years.

In addition to the command of the armed forces, the Constitution gave the President the power to receive foreign envoys and, with the advice and consent of the Senate, to appoint ambassadors as well as to make treaties. Beyond this, it had nothing specific to say about his authority in foreign affairs. However, Article II gave him general executive power; and, as the 64th and 75th Federalist Papers emphasized, the structural characteristics of the Presidency—unity, secrecy, decision, dispatch, superior sources of information—were deemed especially advantageous to the conduct of diplomacy.

The result was, as Madison said, a partial mixture of powers. Madison indeed argued that such mingling was indispensable to the system, for unless the branches of government be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. Particularly in the case of war and peace—the war-making and treaty-making powers—it was really a matter, in Hamilton’s phrase, of joint possession. ¹⁴

In these areas the two branches had interwoven responsibilities and competing opportunities. Moreover, each had an undefined residuum of authority on which to draw—the President through the executive power and the constitutional injunction that he shall take Care that the Laws be faithfully executed, Congress through the constitutional authorization to make all Laws which shall be necessary and proper for carrying into Execution ... all ... Powers vested by this Constitution in the Government of the United States. In addition, the Constitution itself was silent on certain issues of import to the conduct of foreign affairs: among them, the recognition of foreign governments, the authority to proclaim neutrality, the role of executive agreements, the control of information essential to intelligent decision. The result, as Edward S. Corwin remarked 40 years ago, was to make of the Constitution an invitation to struggle for the privilege of directing American foreign policy. ¹⁵

IV

One further consideration lingered behind the words of the Constitution and the debates of the Convention. This was the ques tion of emergency. For the Founding Fathers were more influenced by Locke than by any other political philosopher; and, as students of Locke, they were well acquainted with Chapter 14, Of Prerogative, in the Second Treatise of Government. Prerogative was the critical exception in Locke’s rendition of the social contract. In general, the contract—the reciprocal obligation of ruler and ruled within the frame of law—was to prevail. In general, the authority of government was to be limited. But in emergency, Locke argued, responsible rulers could resort to exceptional power. Legislatures were too large, unwieldy and slow to cope with crisis; moreover, they were not able to foresee, and so by laws to provide for, all accidents and necessities. Indeed, on occasion a strict and rigid observation of the laws may do harm. This meant that there could be times when the laws themselves should ... give way to the executive power, or rather to this fundamental law of nature and government, viz., that, as much as may be, all the members of society are to be preserved.

Prerogative therefore was the exercise of the law of self-preservation. It was the people’s permitting their rulers to do several things of their own free choice, where the law was silent, and sometimes, too, against the direct letter of the law, for the public good, and their acquiescing in it when so done. The executive, Locke contended, must have the reserve power to act according to discretion for the public good, without the prescription of law and sometimes even against it. If emergency prerogative were abused, the people would rebel; but, used for the good of the society, it would be accepted. If there comes to be a question between the executive power and the people about a thing claimed as prerogative, the tendency of the exercise of such prerogative to the good or hurt of the people will easily decide that question. ¹⁶

Locke’s argument, restated in more democratic terms, was that, when the executive perceived what he deemed an emergency, he could initiate extralegal or even illegal action, but that he would be sustained and vindicated in that action only if his perception of the emergency were shared by the legislature and by the people. Though prerogative enabled the executive to act on his individual finding of emergency, whether or not his finding was right and this was a true emergency was to be determined not by the executive but by the community.

The idea of prerogative was not part of presidential power as defined in the Constitution. The Founding Fathers had lived with emergency, but they made no provision in the Constitution, except in relation to habeas corpus, for the suspension of law in the case of necessity (and even here they did not specify whether the power of suspension belonged to the executive). The argument of the Federalist Papers, in the words of Clinton Rossiter, was in effect that the Constitution was equal to any emergency. ¹⁷

Yet there is reason to believe that the doctrine that crisis might require the executive to act outside the Constitution in order to save the Constitution remained in the back of their minds. Even in the Federalist Papers Hamilton wrote of that original right of self-defence which is paramount to all positive forms of government and Madison thought it vain to oppose constitutional barriers to the impulse of self-preservation. ¹⁸ The First Congress, which included sixteen members of the Constitutional Convention and many more from state ratifying conventions, has been described as almost an adjourned session of the Convention. It was here that Congressman Alexander White, who himself had led the fight for ratification in western Virginia, argued that it would be better for the President to extend his power on some extraordinary occasion, even where he is not strictly justified by the constitution, than [that] the Legislature should grant him an improper power to be exercised at all times. In other words, the legal order would be