Current Issues in American Politics and Society

10 
Part I: Political Issues 
Chapter 1 
 
Containing Presidential Power 
 
 
 
During the late 1960s and 1970s more and more historians, among which Arthur 
Schlesinger, expressed concern about the existence of “imperial presidency” in 
America.
1
 Reacting to this widespread idea, Congress intensified its power in the 
next decade. In the 1980s historians were also talking about “congressional 
imperialism”. 
Two cases of containment of the presidential power caught the public’s 
eye: the 1973 War Powers Resolution and the Iran-Contra Scandal. Politicians 
agree that the first did not reach its objectives. The second case is one that is still 
debated as a demonstration of the importance of the separation of powers and of 
the limits of the presidency and of Congress as separate branches of government. 
The American president has the same formal power, but his practical 
powers increased significantly during the 20
th
 century. The development started 
with President George Washington and was continued by Thomas Jefferson, 
Andrew Jackson, Theodore Roosevelt, Woodrow Wilson, Franklin D. Roosevelt 
and Harry Truman.
2
 In a book written in 1960 by Richard Neustadt called 
“Presidential Power”, the writer stated that the main power of the president is “the 
power to persuade”. Not lots of presidents succeed in getting the Washington 
moved as Kennedy and Roosevelt did. 
The years 1940s, 1950s and 1960s are the ones in which the pro-president 
position regained supremacy. In the same periods books like “The American 
Presidency by Clinton Rossiter or “Presidential Power” by Richard Neustadt were 
                                                 
1
 Arthur Schlesinger, The Imperil Presidency, Boston MA, Houghton, Mifflin,1973 
2
 Norman Thomas, Joseph Pika and Richard Watson, The Politics of the Presidency, third edition 
Washington DC, CQ Press, 1993, p. 4
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written, celebrating the above mentioned presidents. The authors of these books 
were political liberals who saw the office as the only institution in the public 
system that could understand the needs of all Americans including the 
disadvantaged and that has a national wide constituency providing the political 
support to meet the needs.
3
 
In the “Deadlock of Democracy”, Burns argues that the paradox of the 
American democracy is that “we can choose bold and creative national leaders 
without giving them the means to make their leadership effective.”
4
 
The containment observed by historians during D. Eisenhower’s 
presidency due to the lack of an ambitious agenda and during John Kennedy due 
to the compulsion of his own party, was going to change because of the Vietnam 
and the Watergate scandals. 
 
1.1. The “imperial presidency” thesis 
In the 1960s and 1970s many began to complain that the president had too 
much power especially in the foreign policy. Arthur Schlesinger, a well known 
historian, wrote several books discussing the issue and stated that the power must 
be shared by Congress and presidency.  
The U.S Constitution is vague in question of foreign policy. Article 1, s.8 
gives Congress the power to declare war and raise an army to fight it. Clause 1 of 
Article 1, Section 2 of the Constitution grants the president power as Commander-
in-Chief over the armed forces of the United States, upon their entrance into 
service. This solitary sentence, like the rest of the U.S. Constitution, allows for 
broad interpretation in a number of situations.  It does not clearly define the duties 
of the commander-in-chief with respect to the limits of his power during wartime 
or peacetime. Despite its vagueness, it appears that this clause was not hotly 
debated but rather strongly favored by the Continental Congress and subsequent 
state legislatures during ratification. It seemed favorable to grant this power to a 
                                                 
3
 Norman Thomas, Joseph Pika and Richard Watson, The Politics of the Presidency, third edition 
Washington DC, CQ Press, 1993,  p.6 
4
 James McGregor Burns, The Deadlock of Democracy: Four-party Politics in America, 
Englewood  Cliffs NJ, Prentice-Hall, 1963, p. 325
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single person, who was politically dependent on the nation, who would be more 
expedient and efficient in decision-making, than to a group of statesmen. Due to 
these “gaps” in the Constitution, the two branches have long been in rivalry and 
conflict. 
After the Second World War, the president decided to act without 
involving the legislative. This culminated in the disaster of Vietnam, an intensely 
destructive conflict waged on his own by the president, who decided not to get a 
declaration of war. Lyndon Johnson involved the American society into a war 
without telling Congress what he was doing. 
The imperial presidency expanded into domestic policy, when Richard 
Nixon came in power. The fact that he took the liberty to impound funds that had 
been appropriated by Congress, that he authorized covert surveillance of his 
enemies including tapping the phones of his opponents and harassing the liberal 
Brookings Institutions, led to the Watergate scandal, which led to a President 
cover-up and the resignation of Nixon in 1974, before he could be impeached. 
 
1.2. The post-imperial presidency and the imperial Congress 
Congress reassured its political and constitutional prerogatives in 1970s, 
after a number of presidents proved “weak”. The presidents that followed the 
Watergate and Vietnam scandals were part of the post-imperial presidency. This 
period coincided with the relative economic decline and the growth of global 
interdependence. 
Due to the fact that towards the end of the Vietnam War, Congress became 
a good deal less differential towards the President on many policy questions, a 
new thesis was born: the Imperial Congress thesis. Congress used now more of 
the powers reserved to the President by Constitution. In the late 1980s 
congressional reassertion had gone too far. It started to intrude the problems and 
the powers of the other branches (presidency and Supreme Court). One way 
Congress did that was by beginning “micro-managing” what the executive branch 
does, in domestic and foreign policy. The members of the Congress start going 
abroad grandstanding and undercutting the residential prerogatives and the
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national interest as well. Instead of making the law, Congress started 
administrating them, which is the executive’s function. Then it started refusing to 
appoint the people the president nominated for the cabinet. 
A rather worrying trend was initiated by the Congressmen who, unable to 
win the debate with the President began launching criminal investigations against 
the White House. In 1978 Congress passed the “Ethics in Government Act”, 
which established the office of the independent counsel. The office’s function was 
to correct executive wrong doing. The Act was passed in the wake of the 
Watergate Scandal and set financial disclosure requirements for public officials 
and restrictions on former government employees lobbying activities. The 
document obliges even the President to file a report with the sources and the 
amount of all earned income, any position or offices held in any business, labor or 
non-profit organization. Under this Act, the Congress can petition the Attorney 
General to appoint an independent prosecutor to investigate the suspicions of 
executive criminality. Kenneth Starr for example was appointed to investigate the 
Whitewater affairs during Clinton. The President was charged with perjury, 
obstruction of justice, witness tampering and abuse of authority. The case was 
closed in 1999 because of insufficient evidence against the president and his wife. 
The following events, the 1973 War Power Resolution and the Iran-Contra 
Scandal are examples of how Congress tried to contain presidential power. The 
1973 War Power Resolution is an attempt to avoid another Vietnam; the Iran-
Contra Scandal involved a partial attempt to take control of American foreign 
policy toward Nicaragua during the 1980s.  
 
1.3. The 1973 War Power Resolution 
From the first battles fought after the ratification of the Constitution to 
modern wars fought halfway around the world, the war powers granted to 
legislative and executive branches by the Constitution have been a topic of debate.  
Over the last two centuries, presidents, lawmakers, and judges have all weighed in 
with their opinions and views of these powers. Each definition of the war powers 
by these statesmen differs to some degree, with the one common goal of
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protecting American sovereignty. For over 150 years, the war powers were 
continuously examined and redefined according to the opinions and views of a 
variety of political actors.  One political scientist argued that the war powers were 
a collective of responsibilities and duties stemming from Article 1, Section 8 of 
the Constitution. Conversely, some argued that the War Powers were granted to 
the U.S. as a sovereign nation, and depended on that sovereignty, not the 
Constitution. Justice Marshall, however, stated: “The power to wage war is 
implied from the power to declare it”
5
. These three differing views boil down to a 
debate on whether the war power is inherent, due to national sovereignty or 
granted by the Constitution.   
 The case for the war powers, as an inherent concept, found its greatest 
defense in the 1936 case of the United States v. the Curtiss-Wright Corporation. 
Judge Sutherland concluded this case by comparing the post-revolutionary 
assemblage of colonies as a single agent.  He stated that this agent adopted the 
powers of external sovereignty from the crown as a unified actor, not as each 
separate colony.  He cites the actions of this assemblage of colonies, in such 
matters as foreign affairs, as an example of the unity of the colonies as one state.  
As a unified force, they are responsible for acting in the common defense of the 
nation, and therefore accept the right to wage war as an inherent power.             
In contrast, in Lichter v. the United States, the approach of the court seems 
to be that the war powers are granted by the Constitution. In addition to the 
obvious power granted to Congress “to raise and support an army,” the Court also 
cited the legislative power, “to make all laws which shall be necessary and proper 
for carrying into execution the foregoing powers.”    
The American history has seen a common pattern when presidents acted in 
defense of the nation. Many times throughout history, Presidents have committed 
troops to war or hostility without consultation or proper declaration of war from 
Congress.  In a way, the actions of the president are a double standard. On the one 
hand, the framers did not want declaration of war to fall solely on one branch of 
government, and hence a concurrence of both Congress and the President to pass 
                                                 
5
 Law Annotations, U. S. Constitution, Article I, Section 8, Clause 11, The War Power
15 
such a declaration was needed. However, many presidents feel that a quick 
response is in the best interest of the nation. Consequently, we see up until the 
Vietnam War, presidents acted according to their administration’s position and 
hoped for congressional approval later. 
 The first case regarding this type of presidential prerogative was that of 
Lincoln’s blockade of the south after the attack on Fort Sumter.  In 1861, after the 
Confederacy’s attack, Lincoln immediately ordered a naval blockade, without a 
formal declaration of war from Congress.  The legislature later ratified his action 
and the court held, in a five to four decision, that the act was lawful under the 
President’s prescribed powers. The majority opinion was that the attack on Fort 
Sumter automatically threw the U.S. into a state of war, and to wait for Congress 
to declare it was unnecessary.             
 During World War II, President Roosevelt used his duties as Commander-
in-Chief to steer not only troops abroad, but the economy at home. In 1942, he 
addressed Congress with the intention of repealing the Emergency Price Control 
Act. He claimed that as president, he had a duty to destroy any barriers that would 
hinder American victory in the war. By repealing the price controls, he hoped to 
stimulate the economy, which would in turn benefit the war effort. In the most 
poignant statement of the speech, Roosevelt warned Congress, “In the event that 
the Congress should fail to act, and act adequately, I shall accept the responsibility 
and I will act.”            
 Perhaps no other armed conflict turned the spotlight on the War Powers 
more than the Vietnam War. President Eisenhower was the first to send troops to 
Vietnam in support of the anti-communist regime of South Vietnam. President 
Kennedy furthered American participation by sending 4000 more troops to Saigon 
in the early 1960’s.  By 1964, 17,000 troops were stationed in South Vietnam to 
advise and train the Vietnamese army. It was not until well into Lyndon Johnson’s 
first elected term as president, that Congress was asked for its support of the 
mission in Southeast Asia.  President Johnson asked the Congress for a resolution 
pledging American support of the anti-communist government. The legislature 
responded with the Gulf of Tonkin Resolution, which allowed the president to
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take “all necessary measures” to stop further aggression and attacks on U.S. 
troops. The number of American troops grew through the 1960’s until it peaked at 
543,000 troops in 1969.
6
  
The Vietnam War was a failure for the United States and their fight against 
communism. The U.S. troops were under many restrictions when fighting the 
Vietcong, including not being able to invade parts of North Vietnam, and 
Vietcong shelters like Laos and Cambodia.  Furthermore, the US troops were 
unaccustomed to jungle warfare and lacked an intimate knowledge of the 
landscape. It was for these reasons, and many more, that servicemen after 
serviceman were either killed or captured. The outrage of the war began to 
escalate in the US, and soon mothers were begging their member of Congress to 
bring their boys home.  It is at this point in time that many legislators started to 
review the powers granted to the executive, and their own branch, to try and bring 
an end to the deaths of Americans abroad. Unlike the Civil War or either of the 
World Wars, Vietnam became the blemish on the record of the American military, 
and so too, on the powers of the government.  In response to the Vietnam War, 
both Houses of Congress proposed legislation designed to incorporate a 
congressional role in war making. Eventually, Congress proposed the War Powers 
Resolution that more clearly defined both the roles of the legislative and executive 
branches.  After a struggle between the branches, this resolution did become law, 
and has been in practice since 1973. The War Powers Resolution is a bill designed 
to restore the powers of war powers of Congress as granted by the Constitution. 
The hope was that Congress would become an active player in the war-making 
process, whether it was a full-fledged war or even a routine military operation to 
rescue Americans abroad. 
The 1973 War Power Resolution is a document meant to clarify what is 
wrong in the Constitution. It limits the power of the President of the United States 
to wage war without the approval of Congress. Congress decided that it could 
never again permit the president unitarily to command United State’s troops 
abroad. 
                                                 
6
 Federation of American Scientists, http://www.fas.org/man/dod-101/ops/vietnam.htm