Crisis and Command: A History of Executive Power from George Washington to George W. Bush (50 page)

While the Reagan administration's policies helped end the greatest national security threat of the twentieth century, they were marked by constitutional struggles between the executive and legislative branches. Reagan, for one, clearly rejected the constitutionality of the War Powers Resolution and believed that he held the authority to commit troops abroad. In 1983, he launched a quick invasion of the Caribbean island of Grenada to remove a Cuban-supported Marxist regime, an operation that required only 1,900 combat troops. In 1986, Reagan ordered the aerial bombing of military and civilian targets in Libya, including the headquarters of leader Muammar Gaddafi, in response to an attack on American servicemen in Germany. In 1987, Reagan directed the U.S. Navy to protect Kuwaiti oil tankers traveling through the Persian Gulf from Iranian threats. In all of these cases, Reagan claimed the authority to deploy troops under the President's "constitutional authority with respect to the conduct of foreign relations and as Commander-in-Chief of the United States Armed Forces." He did not seek congressional approval, though he usually notified Congress in a manner consistent with the War Power Resolution's reporting requirements.
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Neither Congress nor the courts acted to counter Reagan's interventions. The closest Congress came to enforcing the War Powers Resolution was in 1983 in Lebanon, when the United States and its allies sent troops to Beirut to end a civil war. Congress passed a law requiring the withdrawal of troops 18 months later, and Reagan signed the bill in order to gain funding for the operation, though he refused to concede the constitutional point. No confrontation over the Lebanon deployment occurred after the killing of 241 Marines in a terrorist bombing of their Beirut barracks, which caused the administration to withdraw the troops well before the deadline.
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Instead of cutting off funds, some Congressmen sued the President in federal court. They sued Reagan twice to block aid to the contras and once to stop the escort of Kuwaiti tankers. In all three cases, the federal courts refused to hear the cases because they presented political questions outside the scope of judicial review.
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Disputes over war powers, the courts suggested, were to be resolved politically between the President and Congress. Since Congress took no action as a body, the Reagan administration was left with the initiative and the responsibility for success or failure.

When Congress chose to flex its own institutional muscles, it could effectively bring the executive branch to a virtual standstill. This truth was vividly displayed during the Iran-contra affair, which began with congressional efforts to stop U.S. covert activities against Nicaragua. In 1982, Congress prohibited funds for the aid of groups seeking to overthrow the government of Nicaragua. In 1984, news of the CIA's mining of Nicaragua's harbors became public, leading to a funding ban on such operations. Later in the year, Congress enacted the "Boland amendment," which cut off all defense and intelligence funds, for one year, to support any covert or insurgent activity in Nicaragua. National security advisors Robert McFarlane and John Poindexter, and NSC staffer Colonel Oliver North, sought to evade the Boland amendment and also achieve the goal of freeing American hostages held in Lebanon. Using shady arms dealers, they sold weapons to Iran, which controlled the terrorist groups in Lebanon, in exchange for the hostages. They then transferred the proceeds of the arms sales (about $4 million) to the contras, without the money ever reaching the U.S. Treasury.
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What started out as a dispute over foreign affairs turned into yet another Washington, D.C., scandal. Congress conducted lengthy, nationally televised hearings, and an independent counsel undertook criminal investigations. Reagan's public defense -- that he did not remember approving any arms-for-hostages deal -- undermined his image as a Chief Executive in full control of his administration. The independent counsel convicted several of the players in the controversy, including McFarlane, North, and Poindexter for withholding information or making false statements to Congress, but an appeals court overturned the convictions of the latter two. After losing the 1992 election, President George H. W. Bush pardoned five others, including former Secretary of Defense Caspar Weinberger and McFarlane.

Congress had the Constitution on its side. While the President controls foreign affairs and the use of military force abroad, only Congress appropriates federal funds and governs federal property. The legislature should not use criminal law to get its way in a struggle with the President over foreign affairs and national security, but there is no doubt that it can, just as there is no doubt that the President can use his control over the enforcement of the law to preclude any prosecutions -- as Jefferson had with the Alien and Sedition Acts. If Congress believed that the President or his subordinates had violated the Constitution, it should have placed pressure on the executive branch to fire the officials, cut off funds and held oversight hearings, refused to confirm nominees, and even considered impeachment. Using independent counsels transforms policy disputes into criminal cases, which undermines the very flexibility and initiative in government for which the executive branch exists.

At the start of the Iran-contra affair, Reagan's approval ratings fell from 67 to 46 percent in a single month, but by the time he left office, Reagan's popularity had recovered to reach the highest approval ratings of any Cold War President (68 percent).
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Much of this was due to the rise of Mikhail Gorbachev as the leader of the Soviet Union. Gorbachev sought to prop up the Soviet economy by introducing Western-style market reforms (perestroika), and opening up the government (glasnost). Needing to reduce the huge Soviet military budget, Gorbachev was willing to reach deals to freeze or cut conventional and nuclear arms. Two summit meetings in 1985 and 1986 failed to produce any results, but the next conference produced the first-ever reduction in nuclear arms, the Intermediate-Nuclear Forces Treaty banning short- and medium-range nuclear missiles in Europe. Negotiations began for the Strategic Arms Reduction Treaties and the Conventional Forces in Europe Treaty. When completed under the administration of George H. W. Bush, the agreements sharply reduced the nuclear arsenals of the two superpowers and their conventional weapons in the European theater. While he controlled policy toward the Soviet Union and arms control, Reagan needed the cooperation of the Senate to ratify the treaties and the House to fund the destruction of weapons systems. Nonetheless, it was presidential initiative in foreign affairs, supported by the executive's constitutional primacy in the area that was critical to Reagan's success.

A similar story holds true for the more average Presidents of the Cold War. Scholars consider George H. W. Bush's defining moment to be the 1991 Persian Gulf War. After Saddam Hussein's forces invaded Kuwait on August 2, 1990, President Bush ordered a buildup of American forces along the border of Saudi Arabia with more than 400,000 troops deployed over the course of four months. The administration ultimately sought congressional authorization for the use of force in January 1991 and prevailed in the Senate by a mere five votes. The administration made clear it wanted legislative approval only for political, not constitutional, reasons. Secretary of Defense Dick Cheney testified before Congress, and the Department of Justice argued in court, that the President could order an invasion without congressional approval. After the war, President Bush said, "I felt after studying the question that I had the inherent power to commit our forces to battle."
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Bush made his more lasting, though less noticed, contribution to the national security in managing the peaceful end of the Soviet empire. Bush successfully pressed for the reunification of Germany, the enlargement of NATO to include former Warsaw Pact nations, and the recognition of Russia and the former Soviet republics. These diplomatic initiatives were conceived and executed by the executive branch. Treaties requiring Senate consent eventually formalized German reunification and NATO expansion, but the underlying changes were achieved by the Bush administration's control over foreign policy.
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What did not happen in the Cold War is even more important than what did. For the three centuries after the recognition of the nation-state system in the Peace of Westphalia, great power wars were commonplace. Just as the twentieth century had its World Wars I and II, the nineteenth had the Napoleonic Wars, and the seventeenth had the Thirty Years' War, to name but a few. These wars took an enormous toll on humanity -- military deaths in World War I reached about 10 million for all nations, and 25 million in World War II, with estimates ranging from double to triple those numbers in civilian deaths.

By the twentieth century, the United States could no longer isolate itself from the struggles in Europe. World War I cost the United States 116,000 soldiers and sailors killed and 204,000 wounded. In World War II, the U.S. armed forces had 405,000 killed and 672,000 wounded. In World War I, the Wilson administration spent about $310 billion on the military. In World War II, the military consumed about $3.5 trillion (both figures in 2008 dollars). With the development of tactical and strategic nuclear weapons, military conflict between the United States and the Soviet Union would have been far worse in terms of casualties and financial costs than both World Wars -- and probably all U.S. wars -- put together.

That the United States avoided another great power conflict from 1945-92 is a testament to the stewardship of Presidents from Truman through George H. W. Bush. Nine American Presidents from different parties, over half a century, patiently pursued a policy that contained, and ultimately exhausted, an enemy that outmatched the United States in land power. They had to follow a moderate course that sometimes required active challenges to the Soviets, at other times, restraint. It was not produced by a system where Congress generally controls foreign and national security policy.

Many academics assume that congressional dominance would lead to less war, because Congress is slower to move at home and less adventuresome abroad. In effect, this approach finds a virtue in the internal transaction costs within Congress, which make it difficult for a large number of people to reach agreement.
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But there is no historical reason why Congress should be less warlike than Presidents. It was the war hawks in Congress, not President Madison, who pushed the United States into the War of 1812, for example. A Congress eager for territorial expansion sought war in 1846 and 1898.

Putting aside whether their assumptions about Congress are accurate, the critics' reading of the Constitution could have placed the nation in a straitjacket as it rose to confront the challenges of the Cold War. It is true that a high level of cooperation among the branches was necessary to prevail, but containing the Soviet Union called for a wide range of instruments of national power, ranging from covert action, to crisis management, to shorter conflicts, to long-term national security planning. Congress could not have conducted successful policy along these dimensions. The unpredictability, suddenness, and high stakes of foreign affairs were the very reasons for the Framers' creation of an independent executive branch.

Presidential leadership during the Cold War did not just advance American interests in the short term, but benefited human welfare in the West and Asia. At the end of World War II, the economies and populations of the Axis powers were ruined. Germany's population had fallen to its 1910 level, 68 million, and its economy had collapsed. Japan was similarly devastated; its population in 1950 was estimated to be roughly 84 million, and the war destroyed about 40 percent of its industrial capacity. Today, Germany's population is 82 million, and its GDP is $2.9 trillion, third in the world. Japan's population today is 127 million, and its GDP is $4.34 trillion, second in the world. Italy's GNP today is $1.84 trillion, seventh in the world. Although Presidents had demanded unconditional surrender, once the war was over they reintegrated our former enemies into the political and economic systems of the West. Presidents supported a system of market-based economies and constitutional democracy -- with the financial support of Congress at times -- primarily through their control over foreign policy.
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We can also see the effects in the countries that witnessed the most direct American intervention. South Korea, a small agrarian nation with a population of 21 million in 1955, today has a population of 48 million and is the 13th largest economy in the world with a GNP of $888 billion. (Nominal GNP in 1962 was only $2.3 billion.) North Korea's population, by contrast, has stagnated for the past decade at around 21-22 million, with annual economic growth of less than half of one percent; its economy is barely functional, with a GNP of no more than $40 billion (which ranks it at the very bottom in the world), and its society is governed by the most extreme Communist dictatorship left on earth.

Vietnam, too, took its toll on the lives and treasury of the United States and arguably destroyed two Presidencies, but the effects of American withdrawal may have been even steeper -- millions of Vietnamese were killed or sent to concentration camps, or fled as boat people. Wars in both Korea and Vietnam sent important signals to the Soviet Union and China that the United States would continue to resist Communist expansion forcefully. It is impossible to answer counterfactual questions, but if Congress had held the upper constitutional hand in war and had refused to send troops to Korea and Vietnam, the Cold War may have ended very differently. The costs of congressional paralysis during the Cold War could well have been higher than the costs of executive action, even taking into account these setbacks.

PRESIDENTS AND THE ADMINISTRATIVE STATE

PRESIDENTS DURING the Cold War period complemented their activist foreign policy with consistent efforts to establish tighter control over the administrative state. This was a natural response to fundamental changes in American government. The Court's removal of the limits on federal power allowed economic regulation on a truly national scale. In the 20 years after the New Deal, Congress -- often at the behest of Presidents -- enacted laws setting national standards for working conditions, labor unions, and wages and hours, among other subjects. Another burst of federal regulation followed in the 1960s and 1970s; federal rules spread to cover crime, voting, housing, race, consumer rights, and the environment. The New Deal had taught Americans to expect their national government to do more to cure everyday problems, and Presidents and Congresses together responded with a mixture of direct rules, criminal laws, tax benefits, and spending. Even Republican Presidents like Eisenhower, Nixon, and Reagan never seriously tried to undo the New Deal's paradigm shift in the role of the federal government.