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Two Presidencies

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David Smailes

on 3 December 2018

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Transcript of Two Presidencies

The Two Presidencies
Foreign Policy Presidency
Domestic Policy Presidency
“Separate institutions sharing powers” – Richard Neustadt
In the case of domestic policy, those powers clearly lean toward Congress
So what do presidents do in domestic policy?
1. Reactive: sign or veto laws from Congress
2. Proactive: use opportunities to forward a legislative agenda
3. Mandatory: must pass budget
Congress usually leads - public has multiple sources of information
Exception: policy "windows" during crisis
Foreign Policy Powers of Congress
Declaration of war
Raises and supports
army and navy
Can call militia to execute laws of the US, supress insurrections, and repel invasions
Interprets law of nations and punishes crimes on high seas
Determines rules on capture on land and water
Foreign Policy
Powers of POTUS
Commander in chief (limited
by declaration of war by Congress)
Make treaties with other nations
(2/3rds vote of Senate to ratify)
Nominates ambassadors
(majority Senate must confirm)
Receives ambassadors
The intent of the Founders
We discussed the power to declare war already - clear attempted by Founders to limit executive's ability to get into wars
So although the power to declare war remains with Congress, Presidents have initiated military action throughout American history
In fact, we've had only five "declared" wars:
War Powers Act of 1973/4
The War Powers Act requires:
POTUS will "in every possible instance shall consult with Congress" before introducing US Armed Forces into "hostilities" or areas with the potential for hostile action
Once troops are introduced, POTUS must notify Congress within 48 hours.
Within 60 days POTUS must get a declaration of war from Congress or withdraw troops
Congress can grant an extra 30 days to complete the mission of the troops.
Provide for organizing, arming and provisioning the armed forces
But it was also clear the Congress could not manage the day-to-day operation of a war, nor repel sudden attacks
Just a few examples of "undeclared" wars:
What has led to the dominance of the presidency in foreign policy?
But the War Powers Act has never been constitutionally tested, and every president since Nixon has argued it is an unconstitutional intrusion into the "Commander-in-chief" power
Wars of short duration avoid the War Powers Act provisions altogether - and Congress has often passed "extensions" when pressed
Rather than declarations of war, Congress has passed "authorization for the use of force"
September 11 created a new level of concern for the power to declare war - since al-Qaeda is not technically a nation, how do we "declare" war?
War of 1812
World War I
World War II
Mexican-American War
Civil War
Korean War
Vietnam War
War in Grenada
War in Panama
First Gulf War
Second Gulf War
In some cases, these wars were preceeded by Congressional action; in other cases POTUS took military action without Congressional approval
Some argue it is the development of atomic weaponry - Presidents must make quick decisions concerning the use of these weapons.

"Technology has modified the Constitution" - Richard Neustadt

Living with that concern has given POTUS a powerful claim over foreign policy, which has led Congress to often defer to presidential judgment
The war in Vietnam changed that thinking somewhat - Congress initially authorized that war by passing the Tonkin Gulf Resolution, but later regretted giving President Johnson a "blank check" for fighting the war
The 1991 Authorization for the Use of Military Force (AUMF) was limited in scope to achieving the objectives of UN resolutions and only after President Bush "has used all appropriate diplomatic and other peaceful means to obtain compliance by Iraq.." The AUMF also required POTUS comply with the rules of the War Powers Resolution.

House: 250-183 (D: 86-179; R: 164-3; I 0-1)
Senate: 52-47 (D: 10-45; R: 42-2)

"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

House: 420-1 (10 abstain)
Senate: 98-0 (2 present/not voting)

More unsettling is the use of "signing statements" to reverse laws passed by Congress
Reagan: 95 sections of bills
Bush (I): 232 sections of bills
Bush (II): 1,400 sections (during first six years)

President George W. Bush's decision to place prisoners in Guantanamo, establish separate courts for trying those prisoners and permitting the use of torture all went beyond the use of presidential power in previous war settings
This development of concentrated power in the hands of the president, with virtually no check by Congress, has become known as the "unitary" presidency
The most extraordinary use of this power has been the surveillance of American citizens by their own government.
The problem of the increasingly powerful "unitary" presidency is that the system of checks and balances disappears as POTUS exercises this power in secrecy
But the accumulation of that power with virtually no restraint has led presidents to find foreign policy the easiest side of their job to control and shape as a legacy
The concept of the "two presidencies" is that we have one president who really has two very different jobs:
foreign policy president
domestic policy president
Presidents have long claimed one area of power not written into the Constitution - the idea of "prerogative" power
The Founders believed there may be moments where the future existence of the country is in danger - and during those moments, Presidents may have to exercise extraordinary powers to save the nation.

These actions may, in fact, even break the law or go against the Constitution itself.
But when presidents makes such a claim, that power is "checked" by:
the ability of Congress to impeach and remove the president if they feel the president has gone too far
the power of the people to elect a new president
Abraham Lincoln made such a claim during the Civil War, arguing that making decisions that seemed in violation of the law and the Constitution could be justified as necessary measures for preserving the nation.
"I did understand, however, that my oath to preserve the constitution to the best of my ability, imposed upon me a duty of preserving, by every indispensable means, that government - that nation - of which that constitution was the organic law...I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensible to the preservation of the constitution, through the preservation of the nation."
The Cuban Missile Crisis of 1962 demonstrated the danger this standoff presented - and the importance of the presidency in making these decisions.
While the War Powers Act seems to assert the power of Congress to "check" the presidency, it actually gives away more power than it gains for Congress.

It creates a "joint" power which the Constitution does not provide and, in fact, is structured to prevent.
Lebanon, early 1980's
Most signing statements do one of three things, in effect:
Impound funds (refuses to spend $)
Line-item veto (by saying some part of the law will not be enforced)
Veto without the possibility of override (by rejecting parts of the law)

all of which are unconstitutional
"The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to:
1. defend the national security of the United States against the continuing threat posed by Iraq; and
2. enforce all relevant United Nations Security Council Resolutions regarding Iraq"

House: 296-133
Senate: 77-23
Here's the problem all this poses:

if we deny POTUS power, POTUS will claim we risk another 9/11 (an extension of the power given by nuclear warfare)
this includes secrecy about the president's actions
but if we don't know what the president is doing, how do we judge the limits of that power?
and even if we believe POTUS has gone too far, what risks are involved in saying no to POTUS?

The use of torture became an issue in the 2008 presidential election.
But many who were critical of the use of torture were disappointed when President Obama refused to prosecute those who engaged in the use of these techniques, and all videotapes of these sessions were destroyed.
Bombing of Libya
Missile attack on Syria
When Congress passed a bill restricting the president's ability to order the use of these techniques, President Bush issued a signing statement as he signed the bill into law.

That signing statement undermined the purpose of the bill by claiming it would be the president's decision as to which techniques would be used.
Full transcript