In a system of governance like the one in the United States, waxing and waning, ebbing and flowing, as well as rising and falling occur within both the executive and legislative branches given that these two branches of government are considered as “equals” within the entire constitutional scheme. And this inevitably invites action and counteraction, as well as checking and balancing between both institutions. In the end, one must assess the claims that Congress is somehow dead or that the presidency is full-blown “imperial” in dealing with matters pertaining to national security and foreign policy. Therefore, Garry Wills’ claim that “Bomb Power” has somehow allowed the executive to hijack U.S. foreign policy should be the subject of extensive scrutiny.
Gary Wills, in a book titled Bomb Power, suggests that the acquisition of the atomic bomb led to the full departure of foreign policy powers from Congress and into the hands of the executive. Since World War II, the president and the executive branch have acquired many institutional advantages over Congress to conduct U.S. foreign policymaking. Wills lists many of them. For one, there was the atomic bomb. He assesses the unfettered presidential power that emanates from the atomic bomb:
“If the President has the sole authority to launch nation-destroying weapons, he has license to use every other power at his disposal that might safeguard that supreme necessity. If he says he needs other and lesser powers, how can Congress or the courts discern whether he needs them when they have no supervisory role over the basis of the claim he is making?”[1]
To think that “bomb power” definitively creates an “imperial” or “sovereign” executive power in the realm of foreign policy is a weighty proposition and it suggests a certain picture regarding the rise of executive power in the foreign policy realm. Yet, Wills carries on with this logic and asserts that “bomb power” is directly linked to executive assertiveness in U.S. foreign policy. Wills suggests that the “secrecy that had enveloped Los Alamos would steal quietly across the entire American landscape in the years to come,” and that this secrecy isolated the executive and allowed it to develop as an independent and unquestioned power in terms of foreign policy within the American scheme of government.[2] In addition to secrecy there was George Kennan and the idea of “containment.” Foreign policy since World War II has been fear-driven, according to Wills:
“Emphasis on atomic supremacy was driven by fear of the Soviet Union, as were all aspects of American foreign policy.”[3]
As a result, “containment” necessitated the Strategic Air Command and the expansion of a U.S. military presence around the world. In other words, “[our] anxiety over nations ‘going Communist’ was in large part prompted by a fear that this would shrink the area for such bases.”[4] The fear of communism, according to Wills, gave way to the “national security state” headed by the President which in turn was underpinned by a policy statement known as “NSC-68.” According to Wills:
“An elaborately constructed set of institutions enforces the idea that anything executive agencies do is justified in the name of national security. The Bomb instilled a structure of fear.”[5]
Supposedly, the combination of the atomic bomb, secrecy, and containment put the president in a supreme position when it came to foreign policy decision-making in the United States:
“Lodging ‘the fate of the world’ in one man, with no constitutional check on his actions, caused a violent break in our whole governmental system. General Groves (who was responsible for overseeing the Manhattan Project) had a mere simulacrum of that authority, and only for a single project. Presidents now have it as part of their permanent assignment.”[6]
But is Wills accurate in claiming that the atomic bomb and fear of others were the predominant factors in the rise of executive foreign policy power in the post-World War II period? It appears that Wills downplays several other factors in the rise of executive foreign policy power. For one, Wills brings up the constitution. As far as the legal basis of foreign policy activism is concerned, Article I has bestowed upon Congress many prerogatives in driving foreign policy, and Article II gives the president many prerogatives as well. One should keep in mind a very important lesson when bringing up the constitution in a legal discussion of foreign policy powers:
“The lesson here is that when it comes to foreign affairs, Congress and the president both can claim ample constitutional authority.”[7]
To his credit, Wills does list the entirety of Congress’s Article I powers in order to invoke pathos, ethos, and logos to bring attention to his argument that Congress should be the predominant institution in U.S. foreign policy[8] But to simply attribute presidential powers in the engineering of foreign policy to the atomic bomb, secrecy, and containment leads to a neglect of some of the legal aspects and historic precedents pertaining to the role of the president in the engineering of U.S. foreign policy.
As mentioned before, in addition to Article II prerogatives, there are historical legal precedents that render the president a major player in U.S. foreign policy. For one, there is the Supreme Court case of United States v. Curtiss-Wright (1936). Since World War I, there has been intense debate within academic and political circles as to whether the United States should have an internationalist posture or an isolationist posture vis-à-vis the world. This discussion, or debate, reached a culmination in United States v. Curtiss-Wright, and it was determined that “the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” One must keep in mind that the decision made in Curtiss-Wright was made before the acquisition of the atomic bomb.
The perception of the president as being a powerful entity in foreign affairs had already developed before the advent of the atomic, a fact that Wills seems to have left out in his book because of its redundancy. Moreover, as Schlesinger notes, isolationism died after Pearl Harbor, and the nail to the coffin of isolationism had been hammered in by Franklin D. Roosevelt. One must also note that FDR died before the atomic bomb was dropped. Schlesinger intelligently quotes FDR to make a statement that the imperial or sovereign presidency did not begin with the atomic bomb. Rather, the imperial presidency began before it:
“Roosevelt moved steadily but carefully to make the case for postwar internationalism. ‘There have always been cheerful idiots in this country,’ he said in a Christmas Eve fireside chat after his return from the Teheran summit in 1943, ‘who believed that there would be no more war for us if everybody in America would only return into their homes and lock their front doors behind them.’” [9]
What Roosevelt’s words suggest, in addition to the decision made in Curtiss-Wright, is that there was a consensus developing among many in America’s political establishment that the United States, led by its president, should take a lead role in world affairs. World War II seems to have given way to the atomic bomb and the national security state, not vice versa. Thus, the entire issue of U.S. foreign policy and the respective roles of the President and Congress come down to the following principle and concept:
“How aggressively congress exercises its foreign policy powers turn on the critical questions of whether the country sees itself threatened or secure and whether the president’s policies are succeeding or failing. Simply put, times of peace and presidential missteps favor congressional defiance. Times of war and presidential success favor congressional deference.”[10]
Many in the world of academia are aware that the initiative in the execution and determination of foreign policy alternates between the President and Congress, despite the atomic bomb, secrecy, and containment:
“When they choose to do so, members of Congress can exert a great deal of influence over the conduct of war. They can enact laws that dictate how long military campaigns may last, control the purse strings that determine how well they are funded, and dictate how appropriations maybe spent. Moreover, they can call hearings and issue public pronouncements on foreign policy matters. These powers allow members to cut funding for ill-advised military ventures, set timetables for the withdrawal of troops, foreclose opportunities to expand a conflict into new regions, and establish reporting requirements. Through legislation, appropriations, hearings, and public appeals, members of Congress can substantially increase the political costs of military action – as sometimes forcing presidents to withdraw sooner than they would like or even preventing any kind of military action whatsoever.” [11]
There are examples of Congressional assertiveness available for citation. For one there is Vietnam, Angola, Kosovo, and Somalia. Even in Lebanon, Congress invoked the “War Powers Resolution” before Ronald Reagan came to realize through public pressure that the political, economic, and human costs of such an endeavor were not feasible.
The atomic bomb, secrecy and the national security state are also insufficient reasons to base an argument that Congress has been subjugated to a secondary role by the executive. Because of the atomic bomb, secrecy and the national security state, Wills claims that “[the] whole history of America since World War II caused an inertial rolling of power toward the executive branch.”[12] That runs contrary to what the cases of Vietnam, Angola, Kosovo, and Somalia suggest. In regards to the “War Powers Resolution,” Wills states that “[the] WPR institutionalized a joint authority” between the President and Congress, albeit an authority that is “denied in the Constitution.”[13]
However, it may have been better for Wills to suggest that presidential powers are neither denied nor infinite by the U.S. Constitution. Powers pertaining to the President and Congress are both limited and subject to interpretation through Articles I and II via the incorporation of inherent and implied powers, both of which have been subject to interpretation throughout America’s legal and political history. However, the final say in foreign policy decision-making belongs to the American people, although the American people may not exercise this power to a significant degree due to a lack of public expertise on the subject matter. It appears that it is civil law in the United States that enables the American people to become the final authority in the engineering of foreign policy, and as Louis Fisher points out:
“The principle of public consent and popular control is implicit in Locke’s belief that human rights existed prior to government. If government fails to protect those rights the people can change the government. In this sense the public’s interpretation of natural law and constitutionalism – as developed over a period of time – becomes the ultimate test of the legitimacy of civil law.”[14]
It is true that the President can get away with many excesses, as Reagan did in the case of Iran-Contra. But Congress as the main constitutional representative of the general public, in a sense allowed for these things to happen. When taking Iran-Contra as an example: “No criminal charges were brought against President Reagan himself. Nor did Congress seriously consider direct disciplinary action against him.”[15] But why? It is because Iran-Contra became a political matter, not a legal one. Congress refused to go after the President even though they could have legally done so through impeachment or through the courts, and the Republicans in Congress went easy on the Iran-Contra issue after Reagan left office by letting the “Independent Counsel Act” crumble. As Machiavelli said, politics creates law and ethics, not the other way around. Yet, the “Independent Counsel Act” was resurrected by the Republicans when Bill Clinton became president in order to hound him. This example demonstrates that Congress can either be directly involved in the orchestration of foreign policy, or it can be a tangential body to the President and allow the President to exert his power over the conduct of U.S. foreign policy depending on the balance of power between the two branches as determined by the public mandate.
One must also resort to the idea of “give and take” between the President and Congress in the realm of foreign policy. Matters of “executive privilege” and the preponderance of the national security state cannot always stand on a firm footing. As Fisher states:
“The scope of executive privilege remains in a state of tension because of three competing demands: the integrity of the judicial process requires evidence; the executive branch needs a measure of confidentiality in its deliberations; and Congress depends on information to carry out its responsibilities.”[16]
When one unpacks Fisher’s analysis, one is faced with three co-equal branches of government, and each branch works to exert its own individual powers in carrying out the task of governance. Crenson and Ginsberg concede to Wills by stating that despite congressional deference, presidents have tended not to trust Congress and have often used “dangers” to “insulate” policy and decision-making in the realm of foreign policy and national security from the public and Congress.[17] However, Crenson and Ginsberg also note that Congress can challenge the executive’s tendency to act secretively and unilaterally in foreign policy matters. Also, Congress learned a valuable lesson from Vietnam, and the lesson was that the public remained largely aloof from matters concerning war and foreign policy until they were directly impacted by these issues:
“The chief lesson was that presidents could wage war on their own initiative so long as influential segments of the public were not inconvenienced.”[18]
Congress has the power and the potential to get in the way of the president if it chooses to do so through its oversight powers, which in turn could impact the president’s behavior. Apparently, “many legislators are more popular than the president in their districts or states,” and thus “the core idea of the administrative strategy for presidents is to win policy goals by statute when that is feasible, and when it is not, to accomplish those aims through organizational or managerial techniques.”[19]
Thus, the executive and congress seek to outmaneuver one another in accomplishing their respective parochial goals. And despite the employment of the atomic bomb, fear, secrecy, and the national security state in order to preserve its preponderance in dealing with issues of national security and foreign policy, the executive branch cannot deny the fact that Congress and the courts still exist, and if need be, Congress and the courts can place certain restraints on presidential action through their oversight powers as well as the mandate given to them most importantly by the American public. It follows that “[reports] of Congress’ death have been greatly exaggerated.”[20] But due to the paralysis which results from two or three co-equal branches of government canceling each other out in a highly partisan environment, one could contend that the American system government as a whole is now broken.
[1] Garry Wills, “Bomb Power”, Pg. 10
[2] Wills, Pg. 23
[3] Wills, Pg. 32
[4] Wills, Pg. 44
[5] Wills, Pg. 53
[6] Wills Pg. 46
[7] James M. Lindsay, “Deference and Defiance: The Shifting Rhythms of Executive-Legislative Relations in Foreign Policy. Presidential Studies Quarterly, vol. 33, No. 3 (September 2003), Pg. 531
[8] Wills, Pg. 190-191
[9] Arthur M. Schlesinger, “War and the American Presidency”, Pg. 12.
[10] Lindsay, Pg. 531
[11] William G. Howell and Jon C. Pevehouse, “When Congress Stops Wars”, Foreign Affairs, Sept/Oct 2007
[12] Wills Pg. 237
[13] Wills Pg. 188
[14] Louis Fisher, Constitutional Conflicts Between Congress and the President, Pg. 4
[15] Andrew Rudalevige, The New Imperial Presidency: Renewing Presidential Power after Watergate (2005), Pg. 157
[16] Fisher, Pg. 191
[17] Matthew Crenson and Benjamin Ginsberg, Presidential Power: Unchecked and Unbalanced, Pg. 244
[18] Crenson and Ginsberg, Pg. 271
[19] Roger Davidson and Walter Oleszek, Congress and Its Members, 11th Edition, Pgs. 310-312
[20] Howell and Pevehouse, “When Congress Stops Wars”
Adam A. Azim 