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& National Security Essay, Research Paper

The President and National Security

The President?s role in National Security has been a topic of enduring debate in U.S. politics from the Constitutional Convention to our present day situation in Kosovo. Nearly every American President has had to struggle with this issue and deal with the Constitution?s separation of power between Congress and the Executive. The President and Congress share the war-making powers, treaty-making and foreign policy powers, and among many others, the power to place desired officials into certain offices. These powers, though disliked by many, are shared so as to protect the people of this nation with our grass roots system of checks and balances.

Most critics of shared powers focus on the areas of war-making and foreign policy. This conflict can be traced all the way back to the struggle between Hamilton and Madison. After what was said to be a series of failed Presidencies (Johnson, Nixon, Ford, and Carter), one group of ?modern Hamiltonians? wanted to ?increase the power of the President explicitly.? They hope to reach their goals legitimately through legislation and constitutional amendments. Another group of Hamiltonians emerged informally after the Presidency of Ronald Reagan and the ?Irangate? controversy. Group members asserted that, ?The President and the President alone, should exercise exclusive authority in at least four vital areas: the power to go to war; the power to both initiate and carry out foreign policy; the power to appoint officials to the highest posts in the country with only the pro forma advice and consent of the Senate.? (#6, p.57) They also wanted the Congress to only be able to make minor modifications to the President?s domestic budget policy. Other advocates of these positions are seeking a more unitary state similar to those of modern parliamentary democracies like Great Britain. Many are envious of the British Prime Minister?s ability to go to war without a declaration or a vote of Parliament. I believe that these critics are forgetting the ardent points our forefathers made when writing the constitution. The last thing they wanted was the President of the United States to have the same unitary powers as the King or Prime Minister. That is why they intricately built the system of checks and balances, to protect us against a branch of government with too much power. I have chosen a few integral pieces of American history to illustrate how Presidents have responded in the past to situations involving national security and how they dealt with, or circumvented Congress on the issue.

President George Washington set the precedent of Presidential response to domestic national security issues in the ?Whiskey Rebellion? in 1795. Western Pennsylvanians refused to pay taxes on whiskey and decided to revolt. Washington desired not the bloodshed of his own countrymen, but a peaceful conclusion to this uprising. Not only did Washington form an army, he led the army himself, to make peace and calm his people down. It was at this page in history that President Washington established the precedent to form troops to bring domestic peace. Sixty-six years later, President Abraham Lincoln was faced with a much graver problem. States began to secede from the Union, the South attacked Fort Sumter, and Lincoln had to fight back for the sake of national security and essentially run the war alone, also suspending the Writ of Habeas Corpus. Lincoln?s enumerated powers during this war have been reveled and attempted by many recent Presidents, however people must realize the context of his situation and how it?s gravity is incomparable with any situation since then.

In the 1930?s there was a visible growth in the office of the Presidency. In Franklin D. Roosevelt?s first inaugural address in 1932, he asked for wartime powers to meet a peacetime crisis:

I shall ask the Congress for the one remaining instrument to meet the crisis?broad executive power to wage a war against the emergency as great as the power that would be given me if we were in fact invaded by a foreign foe.(#6, p.59)

Congress backed his request and from that moment on, academics and intellectuals have ?denigrated the Congress and canonized the Presidency? (#6, p.58). Presidents after FDR have followed suit leading to major events in the offices of Truman, Kennedy, Johnson, Nixon, and Reagan.

?[Harry] Truman both formalized and expanded the presidency as an institution.? (#3, p.301) He lead the era of the modern presidency by learning some important lessons which his successors would have to take into consideration in future dealings with Congress in matters of military intervention. Truman seized steel mills during the Korean War by attempting to exercise his prerogative power but was stopped by a Supreme Court decision and Congress passing the Taft-Hartley Act. Justice Robert S. Jackson?s concurring Supreme Court opinion set the stage for the Court to follow when weighing presidential powers against congressional action:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at it?s lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress in the matter. Courts can sustain exclusive Presidential control in such case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.(2)

Most memorably, however, was when he, without a declaration of war or a supportive congressional resolution, sent troops to stop an aggressor in Korea. This was a noble effort though he paid dearly ?in the coin of public and congressional criticism,? (#3, p.298) and the war was later dubbed ?Truman?s War?.

President Truman also institutionalized the presidency when he helped to create the National Security Council in 1947 under the National Security Act. Later, the Council was placed in the Executive Office of the President. Originally, the NSC was ?conceived by many legislators to be a check on the President?s autonomy? (#3, p.302) in matters of national security. However, Truman somewhat usurped this notion by making the staffs of the Council part of the ?president?s team?. Since the Council?s ?inception? under Truman, it?s function has been to advise and assist the President on the issues of national security and foreign policies. The NSC also serves as ?the President?s principle arm for coordinating these policies among various government agencies.? (4). In 1949, Truman added another member to his team by making the vice president a statutory member of the National Security Council. Also, as a matter of course, vice presidents receive full national security briefings. Truman knew this was an important decision protecting national security because the country was at risk when he came into office due to him being kept in the dark as the vice president. The establishment of the NSC was simply one more attempt to distinguish the separation of powers between the President and Congress and reinforce our government?s system of checks and balances. Quite possibly the best example of the ongoing debate over the exclusivity of the powers of the President and Congress can be seen in the controversy surrounding the War Powers Resolution.

During his presidency, Richard Nixon instituted an even greater amount of centralization in the White House than Truman, thus increasing the amount of gray area in distinguishing the separation of powers and the exclusivity of the power of the Executive. ?Nixon reasoned that as holder of the Executive power, a President can go beyond his enumerated powers and take whatever steps are necessary to preserve the country?s security, even if his actions might be unconstitutional.? (#6, p.124) It is clear that since the early thirties, Congress has delegated much power to the president, intentionally or not. The War Powers Resolution was an act of Congress to try to regain some of it?s lost powers. However, in 1973 Nixon vetoed the provision and every President since has disregarded or blatantly ignored it.

The War Powers Resolution was a joint resolution passed under article I, section 3, the ?presentment clause,? by both the House and the Senate and then sent to President Nixon where he vetoed the bill. It was a resolution and not an act because Congress passed it over his veto with a super majority vote. Also, it was a resolution because it not only affected the Executive branch, but it also ?provided for congressional action and priority procedures with respect to a Presidential report or congressional concurrent resolution, and amended the rules of the House and Senate to carry them out.? (#6, p.62) This resolution is often misunderstood as taking power from the President and expanding the power of Congress. This, in fact, is a fallacy because the resolution clearly states that

Nothing in this joint resolution (1) is intended to alter the Constitutional authority of the Congress or of the President, or the provisions of existing treaties; or (2) shall be construed as granting any authority to the President with respect to the introduction of United states Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution. (#6, p.62,)

Under Section 3 of the War Powers Resolution, ?the President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities?.? However, no President has ever ?consulted? Congress before introducing armed forces into hostilities, they have only ?informed?. This means that if he has only 30 minutes to respond to a foreign missile threat he may exercise his powers as Commander in Chief of the military to introduce armed forces into hostilities without congressional action. This is in accordance with the resolution where he is given these powers in a ??national emergency created by attack upon the United States, it?s territories or possessions, or it?s armed forces.? (section 2(c) (3)). He must only report to Congress in three circumstances found in section 4 within 48 hours?

Section 4(a). In the absence of a declaration of war, or in any case in which United Armed Forces are introduced—

(1)into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2)into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3)in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation. (section 4(a), War Powers Resolution)

These examples clearly show that the War Powers Resolution does not restrict the President?s given powers under the constitution, nor does it increase the powers of Congress. The resolution only sets more distinct guidelines for each branch to follow. This is after all what has been needed all along, something to clear up the gray area between the powers of Congress and the Executive in matters of national security.

Pious criticized the Executive branch?s disavowal of the War Powers Resolution as the most recent example of ?presidents ?playing a shell game, claiming to act according to law yet dispensing with statutory law at their convenience in national security matters.?(5) In concurrence with this statement, the President needs to take every effort to have the backing of Congress and the American people when sending the military into hostilities so he doesn?t make the same mistake Truman did when he sent troops into Korea. ?He needs to have Congress and the people with him on the takeoff so they are accountable with him on the forced landing.?(#6, p.70) By the Executive taking these powers into his own hands he is bearing a responsibility that no one man can handle by himself. The arguments against the War Powers Resolution favor a move to a unitary state, or a ?plebiscitary Presidency?. If these shared powers were taken from Congress and changed to a unitary power solely held by the President himself it would destroy the system of checks and balances on which this country was founded. This could not be expressed more eloquently than by the words of James Madison who warned in Federalist, No. 47, that ?the accumulation of all powers legislative, executive, and judiciary, in the same hands, whether of one, a few, or many and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.?

Sources :

1.Hamilton, Madison, et al., The Federalist Papers (New York: Penguin Books, 1961)

2.Ibid., 343 U.S. 570 at 637; and Richard M. Pious, The American Presidency (New York: Basic Books, 1979), 64-69.

3.Milkis, Sydney M. & Nelson, The American Presidency: Origins and Development, 1776-1993 (Washington DC: CQ Press, 1993)

4.National Security Council, http://www.whitehouse.gov/WH/EOP/NSC/html/nschome-plain.html

5.Pious, Prerogative Power and the Reagan Presidency, 510 n. 27

6.Shuman, Howard E., & Thomas, The Constitution and National Security (Washington DC, National Defense University Press, 1990)