The Imaginary Presidency
by Ryan McMaken by Ryan McMaken
The moment Speaker of the House Nancy Pelosi set foot in Syria, the White House and every right-wing pundit in America set to work declaring her actions illegal, unconstitutional, pro-terrorist, and any number of other slights in an attempt to protect the precious prerogatives of the President. Vice President Cheney declared that "we don’t need 535 secretaries of state" and newspapers across the nation were filled with letters from angry readers asking "who made her President?" and so on.
Now, it is indeed possible that Pelosi’s trip to the Syria was poorly executed, or ill-advised, although that is hardly obvious. Given the Bush administration’s record in Iraq, one could hardly come to the conclusion that Pelosi has a monopoly on foreign policy debacles. A hundred bungled trips to Syria could not do the damage that four years in Iraq has done to stability and peace in that region.
And while it does indeed pain me to defend the likes of Nancy Pelosi against accusations of any kind, this column is really about the Speaker of the House of Representatives of the United States, an office that Pelosi merely happens to hold at the present time.
The general thrust of those who argue against the Speaker of the House taking it upon herself or himself to discuss important diplomatic issues with a foreign leader is that the Congress should just stay out of all matters of foreign affairs. The Speaker is not a part of the executive branch, we’re told, and as such should leave everything to the President.
Such words could only be uttered by someone who either doesn’t know or doesn’t care what the constitution says about such things. This belief that the President is the last word and supreme commander on all matters of war and foreign policy grows out of what can only be called a myth: the myth that the phrase "Commander in chief of the Army and Navy" from article II, section 2 somehow endows the President with almost limitless power to direct foreign policy within the United States government.
In fact, the position of "commander in chief" is more or less the only power given the President in matters of war and peace. The only other powers granted to the President related to foreign affairs are the powers to appoint ambassadors and to enter into treaties, but even these powers are only to be exercised "by and with the Advice and Consent of the Senate." We’ve been trained to think that the term "commander in chief" confers some kind of omnipotent authority, but in reality, these powers are very slight when compared to the foreign policy prerogatives of the Congress.
Last week, Dick Cheney, in expressing his displeasure for Congress’s attempt to control the war through appropriations, displayed his contempt for the constitution yet again when he declared that "military operations are to be directed by the President of the United States, period" This might certainly sound strange to anyone who has actually bothered to read Article I of the Constitution of the United States.
The foreign policy and military powers of the Congress are quite extensive:
- "…regulate commerce with foreign nations…"
- "…to define and punish Piracies and Felonies committed on the high seas and Offences against the "Law of Nations…"
- "…to declare war…"
- "…To raise and support Armies…"
- "…To provide and maintain a Navy…"
- "…To make rules for the Government and Regulation of the land and naval forces…"
- "…To provide for calling for the militia to execute the laws of the Union, suppress Insurrections and repel Invasions…"
- "…to provide for organizing, arming, and disciplining the Militia, and for governing such part of them as may be employed in the service of the United States…"
Since the Congress is vested with "all legislative powers" granted in the Constitution, the President can only be responsible for executing the will of the Congress (a sentiment often voiced at the Constitutional convention). He cannot write his own rules or exercise authority without first being granted that authority by Congress. And since the Congress has complete authority over providing for the army, navy, and the militia, as well as making rules for the "government and regulation of land and naval forces" it is difficult to see just how exactly the President has been granted total power over military affairs.
The President’s status as the allegedly exalted commander in chief is completely dependent on Congress’s providing him with anything to chiefly command in the first place. The Congress need not provide the President with any military funding, personnel, or equipment the Congress does not wish to provide him. The framers of the constitution, knowing English history, knew that many a Parliament had refused to provide funding for the petty and now-forgotten wars of English kings on numerous occasions — sometimes they refused funding in the middle of wars. The framers expected no less from Congress.
Virtually the entire governing apparatus of the executive branch depends on the consent of Congress. Cheney may feel that the country does not need "535 secretaries of state," but Congress is free to conclude that there need be no secretary of state at all. Unlike the office of Speaker of the House, the office of Secretary of State is not a constitutional office and can be abolished by Congress just as it was created by Congress in 1789. The same goes for all the President’s departments and his various secretaries.
And once these departments and secretaries are granted him by the Congress, the President cannot appoint heads of these departments at will. The Constitution guarantees that he can only do so "by and with the Advice and Consent of the Senate" which can mean almost anything. We today think in terms of confirmation hearings and majority votes, but the Senate is free to redefine what its advice and consent means at any time. And of course, Congress can impeach and remove from office any of these officials, including the President at any time and for any reason. "High Crimes and Misdemeanors" are what the Congress says they are.
Most importantly, nowhere does the constitution prohibit members of Congress from meeting with foreign leaders as representatives of the United States. Last week, the White House lectured Congress on how it would be "unproductive and unhelpful" for members of Congress to visit Iran. What the White House is really saying is that the Congress, that institution responsible for declaring war, approving ambassadors and treaties, and funding, governing, and regulating the American military, should not have any first hand knowledge of the country that the White House has repeatedly suggested needs to be bombed by the United States Air Force.
This logic is alarming to say the least, but the fact that so many Americans seem to think that Congress should sit back and take orders from the White House on anything that happens to occur beyond the borders of the United States is a disgrace. The real founders of the United States, the men who wrote America’s first constitution, the Articles of Confederation, were wise enough to have no President at all. Foreign affairs were governed by an executive council of the states which, incidentally, was in power when the Continental Army defeated the most powerful empire on earth, and secured a territory greater than that of any European state.
That tradition of Congressional supremacy was hardly abandoned at the convention of 1787. If it had been, the new constitution would never have been ratified. Those who think that the Speaker of the House has committed some grave sin by exercising her constitutional authority as leader of the House of Representatives should check the document that they feel has been so gravely violated. They will find nothing about the President exercising exclusive jurisdiction in matters of foreign policy, because the constitution says no such thing.
Given that the history of the presidency is one of constantly expanding Presidential power at the expense of liberty and the rule of law, we would all benefit from much more Congressional meddling in the President’s affairs. The next time the Vice President takes issue with this, the Congress can illustrate its superior constitutional authority for him by abolishing his staff and his budget, unless of course, they simply wish to impeach and remove him from office instead.
Ryan McMaken [send him mail] teaches political science in Colorado.