Statement of Prof. Robert F. Turner 3 March 1994, page 21 Prudence and Wisdom of those whose hands it is in, to be Montesquieu divided the powers of the executive into “the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law."44 Blackstone-who was greatly admired in the American colonies and whose Commentaries sold extremely well in America in the years before the Philadelphia convention—argued that “With regard to foreign concerns, the king is the delegate or representative of his people. . . . What is done by the royal authority, with regard to foreign powers, is the act of the whole nation...." ... 145 Time does not permit a full discussion of this issue, but it is worth observing that as early as 1789 Congressman James Madison argued—and carried the day with the argument that the executive power clause gave the President all powers by their nature "executive," save for any exceptions granted to Congress or to the Senate-which as exceptions were to be "construed strictly."46 Jefferson followed up in April 1790 with the observation—after also referring to the language of Article II, Section 1—that “[t]he transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.47 President Washington and John Jay concurred in this view, 48 as did Jefferson's rival Alexander Hamilton, who wrote in 1793: 43 JOHN LOCKE, SECOND TREATIES ON CIVIL GOVERNMENT § 147, excerpted in Robert F. Turner, The Constitutional Framework for the Division of National Security Powers Between Congress, the President, and the Courts, in JOHN NORTON MOORE, FREDERICK S. TIPSON, & ROBERT F. TURNER, NATIONAL SECURITY LAW 749, 750 (1990). 44 Robert F. Turner, The Constitutional Framework for the Division of National Security Powers Between Congress, the President, and the Courts, in JOHN NORTON MOORE, FREDERICK S. TIPSON, & ROBERT F. TURNER, NATIONAL SECURITY LAW 749, 752 (1990). Statement of Prof. Robert F. Turner 3 March 1994, page 22 It deserves to be remarked, that as the participation of the Senate in the making of Treaties and the power of the Legislature to declare war are exceptions out of the general "Executive Power" vested in the President, they are to be construed strictly—and ought to be extended no further than is essential to their execution. While therefore the Legislature can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War-it belongs to the "Executive Power" to do whatever else the laws of Nations cooperating with the Treaties of the Country enjoin, in the intercourse of the U[nited] States with foreign Powers. 49 Another Jefferson rival, Federalist John Marshall, used precisely the same reasoning to argue in 1800 while a member of the House of Representatives that President Adams was empowered as the "Executive" authority to "execute" an extradition provision of the Jay Treaty with Great Britain. He reasoned: The President is the sole organ of the nation in its external Jefferson's close friend, Representative Albert Gallatin, was scheduled to make the closing Republican presentation in this major debate that had already consumed more than a month of the House's time. As Marshall concluded what has been widely regarded as a brilliant argument, Gallatin turned to his allies, tossed his own prepared text on the table, said words to the effect of "You answer him, as for me I find his arguments unanswerable," and sat down. Even Jefferson subsequently grudgingly acknowledged the brilliance of Marshall's presentation. I could go on to present other examples noting, for example, that during the early period of our history, when men who had written and signed the Constitution in 49 Id. at 762. 50 10 ANNALS OF CONG. 613-14 (1800). Statement of Prof. Robert F. Turner 3 March 1994, page 23 Philadelphia or had taken part in the state ratification conventions served in the Congress, a uniform practice was established of appropriating all funds for foreign affairs as a contingent account without a single condition or restriction placed on the President.51 Indeed, Congress provided by law that the President didn't even have to disclose to Congress how such funds were spent, and could instead account for the sums expended on matters which in his exclusive determination ought not be made public. 52 The case is clear. The reason the President controlled American foreign relations throughout our first 180 years was not a result of some fluke caused by excessive admiration for George Washington-the Constitution was designed that way. As Professor Quincy Wright observed in 1922: “when the constitutional convention gave 'executive power' to the President, the foreign relations power was the essential element of the grant...." ."53 Similarly, Professor Henkin has observed that "[t]he executive power. .. was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone."54 The key to the separation of foreign affairs powers is to understand the intentions of the Founding Fathers in vesting the nation's "executive" power in the President. Why they chose to do so is also clear. Briefly summarized, they understood that legislative bodies lacked the institutional competence to conduct foreign affairs effectively. Foreign affairs required for its effective execution such qualities as unity of design, speed and dispatch, and secrecy—none of which were characteristics of legislative bodies. Not only had they learned this lesson from the theories of Locke and other writers, but they had first-hand experience from watching the Continental Congress attempt to manage the Revolutionary War. The almost universally recognized shortcomings of this 51 11 THE WRITINGS OF THOMAS JEFFERSON 5-10 (Mem. ed. 1904). 52 “[T]he President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify." 1 Stat. 129 (1790). 33 QUINCY WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 147 (1922). 54 Louis Henkin, Foreign Affairs and the Constitution, 66(2) FOREIGN AFFAIRS 43 (Winter 1987-88). Statement of Prof. Robert F. Turner 3 March 1994, page 24 effort prompted John Jay, in Federalist No. 64, to argue that the Constitution “would have been inexcusably defective" if no attention had been paid to the "want of secrecy and dispatch" that America "heretofore suffered" under the previous system. Hamilton echoed this theme of institutional competency, inter alia, in Federalist No 70. Jay noted in Federalist No. 64 that important foreign intelligence sources would not provide information to the United States if they thought it would be shared with the Senate, much less the more numerous House of Representatives; and he explained that, under the new Constitution, the President would be left "free to manage the business of intelligence as prudence might suggest." The Commander in Chief Power Article II, Section 2, of the Constitution begins by providing: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...." This power gives the President exclusive power of whatever military force Congress sees fit to "raise and support" or "provide and maintain." Constrained only by the other provisions of the Constitution, the President decides where to deploy the forces at his command and what strategy to follow when he is called upon to send American forces into combat. Other than denying the President any Army to "command," the Congress lacks constitutional authority to direct or prohibit the operational management of military forces. The Founding Fathers did not expect many legislators to have expertise about such matters, and they entrusted these decisions to the President-who was to have the advice and counsel of both uniformed and civilian military experts—as part of his responsibilities as Commander in Chief. Prior to Vietnam, it was extremely uncommon for members of Congress to attempt to interfere in this area. The few noteworthy exceptions were generally dealt with quickly Statement of Prof. Robert F. Turner 3 March 1994, page 25 by more experienced colleagues, and the proposals were often withdrawn before a vote could be taken. For example, consider this excerpt from the Congressional Record of a Senate debate that occurred on December 27, 1922, shortly after the close of World War I, between Senator William Borah of Idaho and Senator James Reed of Missouri. Senator Borah-an isolationist and champion of Senate rights55—served as a member of the Committee on Foreign Relations for nearly three decades and was its chairman for six years. He was, in addition, a highly respected constitutional lawyer. His views on the power of Congress to control the President's power as Commander in Chief are therefore worthy of careful attention. At issue was whether U.S. military forces should remain in Europe following the successful conclusion of the war: 55 Mr. Reed of Missouri. Does the Senator think and has he not Mr. Borah. I do. Mr. Reed of Missouri. So do I.... Would it not be easier to bring the Mr. Borah. You can not bring them home, nor can I. Mr. Reed of Missouri. We could make the President do it. Mr. Borah. We could not make the President do it. He is Mr. Reed of Missouri. I wish to change my statement. We can not Other than Senator Henry Cabot Lodge, Borah was probably the leading figure in persuading the Senate to deny the President consent to ratify the Versailles treaty establishing the League of Nations. |