The controversy over the diversion of funds from Iran to the anti-Sandinista forces in Central America is, and should be, a cause of serious concern for all Americans. But itis so for one reason, while it should be so for quite another.
To the public, the present scandal appears to involve a deviation from proper procedure or a transgression of law, and to lie exclusively within the executive branch of our government. And no wonder congressmen and senators, the President and his men (and his wife) all represent it in this way. And media chroniclers and commentators, almost to a one, follow suit1
This explains the kinds of questions that are being posed and discussed and debated ad nauseam: How much authority should a president delegate? What is the proper role of the National Security Council vis a vis the State Department? What did various people within the executive know, and when? Who within the executive should resign or be fired? How can things be arranged so as to prevent future executive branch miscues?
But these are the wrong questions, based upon a misunderstanding of the crisis at hand. The Iran-contra affair represents not essentially a procedural or a legal, but apolitical controversy, arising from a government in which irreconcilable ideas are at war. Coupled with this is an institutional crisis that threatens the constitutional framework of separated powers, and thus the proper functioning of our government as a whole. Precisely, Congress has undergone a revolutionary transformation, driven by a revolutionary ideology, which has made it undemocratic and potentially tyrannical; and the executive branch has undergone a concomitant emasculation, which has made it too weak to accomplish its main functions.
As a consequence of this long-brewing political and institutional crisis, effective government is in danger of extinction in America. Weathering it will require a return to their original purposes by our political institutions and a recurrence to the fundamental meaning of constitutionalism across the land. Primarily, an open and partisan debate must begin on the condition of our Constitution and on the policies that, at bottom, are at issue in Iran-contra. Only through such a debate is there hope for a timely and favorable resolution.
The Nature of the Controversy
At present, the majority in both houses of Congress stands in extreme opposition to the President. And it represents something more than just a different party from the President's; for today, as only three or four times previously in our history, the great American parties are opposed in regard to the most fundamental political issues-issues that bear upon our very purpose as a nation. The parties are split upon such matters as affirmative action, strategic defense, and Central American communism. And these matters really represent a deep division between them upon the meaning of equality, of safety and happiness, and of political liberty-principles central to the meaning of America.2
To dispel any doubts that the present controversy is political in character-rooted in a dispute over how to dispose ourselves toward the anti-Sandinista forces down South-one need only note that nothing like it could or would have occurred thirty-five years ago. At that time, our political parties and almost all Americans were in fundamental agreement over the basic policy of containing communism. They disagreed only in their practical judgment of where to draw the line, e.g., in Asia. They debated only in terms of what national security demanded and American capability allowed. But this is no longer the case. The question of the morality of effective anti-communism itself divides our people, our parties, and thus our institutions.
Today, no one disputes the fact that we have a critical interest in the future disposition of Nicaragua or that we have the capability to effect it. But we have a conflict now between a Republican president who insists we support the anti-communist rebels there, calling them freedom-fighters, and a Democratic Congress that is at best equivocal, and at worst sympathetic to the view that the Contras (and, by extension, their supporters) are terrorists.3
Only in a government so divided against itself will a Congress treat a Chief Executive with the adversarial vigor that we lately observe, saddling him with a myriad of prohibitions and subjecting him to dogged oversight that exceeds all custom. Only under these conditions will a weakened executive branch find itself compelled to act so surreptitiously, as if it were carrying out a plot on the life of Mother Teresa, in order to implement a major and publicly expressed policy of the President. And only then will repetitious "scandals" have even Italian commentators questioning the virtue of American democratic structures.4
We must understand some simple propositions. The American government, to be effective, must be agreed in all its parts upon the basic ends of foreign and domestic policy. Only the people can elect a government that is so agreed. They can and will do so, only after there is an open and vigorous political battle, during which their allegiance is sought by the contending parties. But here is the heart of the bizarre situation we now face: The Iran-contra affair is not being treated as a political battle at all. The public is not listening to arguments about the rights and wrongs of a Nicaraguan policy or the rights and wrongs of separation of powers. Instead, it watches lawyers being assembled, and courts starting to work, and various administration figures being hounded and harried by congressional committees-all over "nonpartisan" legal or procedural details.
Only by comprehending the full significance of that sad and dangerous fact, can one begin to see the depths of the crisis we face.
The Position of the Congress
The majority in Congress has not and, understandably, will not acknowledge the political or partisan character of its quarrel with the executive branch. It has no need to do so; for it is in the driver's seat of government as things are, and the majority of its members has unearthed a non-political means to retain political ascendancy, so to speak, for all time. It has discovered a way to preserve the controversial public policies it holds dear, without arousing controversy and thus without risking electoral defeat
One can observe its tactics, and thus begin to grasp its strategy, on several battlegrounds. Take, for example, bureaucracy. Since 1968, national majorities have consistently elected presidents who campaigned against bureaucracy. But in the meantime bureaucracy has flourished, because Congress has thwarted any attempt by a president to "realize his mandate." And yet members of Congress-and here, in particular, of the House of Representatives-are not held accountable for this: indeed, when they return to their districts every two years, they criticize the bureaucracy and present themselves as the indispensable instruments by which the red tape associated with it can be overcome. They have assembled for themselves large personal staffs and budgets, and they are now the expediters of social security checks, welfare payments, student aid applications, farm subsidies, etc. And a grateful electorate shortsightedly rewards this cynical game in election after election.
Thus Congress is-and most members of Congress are-able to avoid responsibility for the most important thing that it does and they do.5 The stunning success of this post-1965 congressional strategy was confirmed most recently in the 1986 election. In which a record 98 percent of all incumbents running in the House of Representatives were reelected. Of course, this election was billed as having "no national issues." Seldom have such fateful and fiercely contested issues paraded under the guise of bi-partisan agreement
The only time this institutional con-game has been seriously threatened with exposure was immediately after President Nixon's reelection in 1972. By refusing to spend the money that Congress appropriated for various bureaux against his will, Nixon hoped to smoke its members out to force them to fight him on political grounds and publicly to oppose his doing what the people had elected him to do. He hoped, in other words, to reveal the Democratic Congress as the source of and the force behind bureaucracy-which it was and is. But of course Watergate intervened, and the institutional struggle was submerged beneath the headlines. The attack on Nixon was presented to the public as a merely legal matter. The rightness or wrongness of Nixon's policies was no longer an issue: the only question was whether he and his aides had broken the law.6
The controversy in Washington today is similar to that which had our two political branches of government at each other's throats in the 1970s. But once that similarity is clearly seen, a difference between the present "scandal" and Watergate emerges-a difference that is critically important to its possible outcome. Mr. Reagan is not, after all, defending-or covering up-a burglary upon his electoral opponents. He is defending secret attempts to pursue policies that were publicly proclaimed and successfully defended in front of the people.7
Recent Congresses have stridently insisted on their right to scrutinize every aspect of executive policy, and to impose limits upon and guidelines for it at will. In the realm of foreign policy, they impose control through the State Department bureaucracy which, although nominally within the executive domain, has come to depend on and respond more to Congress than to its titular boss.8 And in the same way they employ the social services bureaucracy mentioned above, congressmen have used the foreign policy bureaucracy to assume additional powers with no attendant increase in their public accountability-whether for failures in, or for the virtual nonexistence of foreign policy, as the case may be.
Mr. Reagan has been twice elected, by a national majority of Americans, after campaigning for an implementation of the so-called "Reagan Doctrine." Chief among the components of that doctrine is a pledge of forthright support for anti-communist movements worldwide, and particularly for that nearest to home, in Nicaragua. Yet any sort of effective support for those movements, and again in particular for the contras, has been rendered impossible by the behavior of Congress.
And here, as in other controversial and important areas of policy, the great majority of pro-Sandinista congressmen have kept their views and actions largely to themselves. A popular ploy used by those who consistently vote against contra aid, when the issue is brought up in campaigns or at town meetings, is to call it "very perplexing, admitting of no easy answers," and then to look pensive and undecided.9
Coupled with this silence about its own real opinions, Congress has been able also to sustain the impression that the President is running the nation's affairs. Thus Senator Byrd, now Senate Majority Leader, proclaims indignantly: "What this [present controversy] says is that nobody seems to be really in charge of the foreign policy of this country." Of course should Mr. Byrd desire for Mr. Reagan to take charge, he is now in a good position to let him. But he doesn't, and he won't
And so responsibility, which is the President's, is severed from authority, which has been usurped by the majority in Congress. The people are left with no one to act for them and with no one to blame for inaction.
If the new majority in Congress takes its bearings from the shrewd example set for it in the 1970s, it will carefully cultivate the same appearance of nonpartisanship that proved so successful with the public then. When it acts, for instance, to kill the President's Central American policy once and for all during this term, it will present the issue, and make its case, in terms of the legal limits of, and proper procedures within, the executive branch. It will veil the crucial political question involved with no end of petty and personal charges that are bound to arise as the investigations and hearings of the Iran-contra affair drag on.
The majority in Congress will finally say: "We have ferreted out and destroyed the sinister specter of arrogant Nixonism within the Reagan White House." But throughout, it will have shied religiously away from any controversial public defense of the Soviet-proxy Sandinista government whose entrenchment it will have thus engineered.
The Democratic majority in Congress will then have pulled off a coup reminiscent of that attending the fall of South Vietnam in 1975. At that time, Congress used post-Watergate legislation to prevent President Ford from providing air support to the South when our old allies were invaded, in blatant disregard of the Paris Accords to which we were party. To a majority in Congress then, our commitments to South Vietnam were of no value, although recently and solemnly made. And individual Congressmen were not, and could not be, held responsible for the consequences. The President does not, and should not, enjoy that latitude.
If the Sandinistas are entrenched, disasters will begin to ensue in our own backyard, as they did in Asia after the fall of Vietnam. These disasters will be decried by all. Everyone will have his own explanation of their cause. But no one will be held publicly responsible, except perhaps the President for lack of initiative. (It will have been a failure in foreign policy, which "nobody seems to be really in charge of.") The same congressmen who are in fact responsible will thus retain their safe seats. A new president will remain powerless to act and to be held accountable for acting. And the people will again be frustrated-not to mention a bit frightened-by the embarrassing spectacle of a government in limbo for mysterious causes.
Thus the worst-case scenario. But to repeat: the present "scandal" need not conclude, like Watergate, in such a way as to promise more of the same. It could in fact become the occasion to end the institutional deadlock which has enervated American government for a decade and a half. Unfortunately, there is but one man in America who is in a position so to use it: the President himself. And he gives every indication of being either averse from a lack of boldness, or oblivious out of ignorance, to the possibility.
The Position of the President
Many congressional liberals, when not bandying about caustic remarks at the President's personal expense-remarks meant to eat away at his reputation without raising the question of political differences-have sincerely expressed the hope that he will kow-tow to them publicly. They do not, they imply, wish to get rough, as they did in Mr. Nixon's recalcitrant case.
Although this may seem like patent billyrot, in truth these "peacemakers" do mean their kindly expressions. Their own best interest, and the interest of their national agenda, lies in the status quo. They wish to avoid political controversy, for which purpose an opposed but servile president is almost as good as a political ally in the White House. So long as the President is servile.
Congress will give him every assurance of friendship, while inviting him to help in the hanging of those few of his lieutenants who are still effectively his to command. But, of course, if the public affection for the President should waver during the process, it will become politically safe to attack him. Then he will become the target himself, and the friendship will be forgotten in Congress.
The present apparent warmth within the congressional breast for the "prestige and integrity" of the presidential office is therefore no mystery. The mystery is that the President seems so willing (if not eager) to remain at his post within the government as it is now constituted. The President is, after all, a political man. He reached his station by making great sacrifices. His dedication to the public good is proved by his long and distinguished and consistent career in its service, and now he has no further upward to go. He can say with Winston Churchill, at the time of the Fulton Speech, that he has "realized his ambitions beyond his wildest dreams." And yet now he accepts without a fight the tendency to make his into a figurehead position.
Some have argued that congressional encroachment of power over the past fifteen years has effectively transformed the American structure of separated powers into something like the English parliamentary system-wherein the Prime Minister remains in power subject to the continuing consent of the majority party in Parliament. But in fact, the Congressional attitude toward recent presidents is rather more like that of British governments toward the Queen: she is useful at funerals and in other ceremonial roles; and her political views are of no real concern as she is not, under the rules, to try and implement them.10
But let us assume, as we hope there is reason to do, that the President has not lapsed into a political dotage, preferring fickle love to enduring admiration and easy comfort to hard-won success. In that case, we must assume that he is simply unaware of the present opportunity to serve his country and, in so doing, to secure his own political reputation. The President must then make haste to reassess his position and to consider especially the following points.
Mr. Reagan is at present in a much stronger political position than Mr. Nixon ever was. Regardless of the larger issues involved at the time of Watergate-the impoundment of funds and "peace with honor" in Vietnam-Nixon could not proudly take responsibility for, and make a principled public defense of, the actions of those besieged within his administration. For Mr. Reagan, on the other hand, that way is clear. Of course, as the old proverb says, noble things are difficult: and taking the way herein proposed would be both difficult and noble.
What sorts of appeals would the President's public defense entail? He would certainly have to tell the people who elected him that the prevention of a second Soviet-proxy state, entrenched and active in our hemisphere, is absolutely essential to American national security. He would point out that Nicaragua is in close proximity to the Panama Canal, and that it already possesses a force of 120,000 men under arms, equipped with advanced military hardware from Moscow. He would insist that its neighbors, and its neighbors' neighbors, are unsettled and weak, and dangerously close to our own borders. He would warn that Mexico itself stands at risk, and Mexico is next door. Above all, he would remind us of our vital links with Europe, secured with so much blood and pain, and he would explain that major distractions near home will prevent us keeping our foothold upon that decisive battleground.
The President would defend those public servants who have been loyal to his policies and who carried out those measures necessary to an end he deemed vital. He would defend the sale of arms to a foreign power as within the purview of executive authority. (Others may object to its wisdom, which they are entitled to do; but, he would allow, that is all they can do.)
The President would admit (if the facts warrant) that with these funds, Oliver North and others supplied freedom fighters in Central America (and Africa?) at a time when they were in dire need. And whether or not the President would claim personal and detailed knowledge of this latter operation, he would say that it was in perfect accord with his stated policy and absolutely within the bounds of his constitutional power as the chief executive. And so in this way he would take responsibility for the actions of those within his compass. He would do so without apology.
Thus he could address his opponents in Congress: "There is no more reason under the sun for further investigations of how things occurred, or of who knew what when, within the executive branch of government which is my domain. I have taken full responsibility for what occurred, and have revealed of that what I can within the constraints of national security. Your argument is thus with me, and you are left with an obvious path of action. You can, and should, attack me politically, in speeches before the people. You can conduct your hearings into the operation of the executive branch. My people who customarily appear before Congress will continue to come and explain my policy and as many of the details as the nation's interest will permit. But these hearings will not be of the judicial character that you now propose."
"Or perhaps you wish this to be a judicial, as well as a political quarrel. In that case you have your impeachment power, and if you are so inclined, you may surely use it. But to do so in a manner that is clearly partisan and political will display a spirit to our people that you may not wish to defend in public. And remember that whatever you do, I will be taking my case to the people, and debating you on its political merits."
Now, there are three types of argument that could be mustered in defense of the President, were he to act in this courageous and resolute manner. There is the argument from prudence; that from American historical precedent; and that from the Constitution. Woven together, these provide a tapestry of sound reason that could not fail to persuade most Americans of good will of the rightness of the President's actions. Let us turn to them now.
The Argument from Prudence
The prudential argument for the strong executive, especially but not exclusively when it comes to the conduct of foreign policy, can be found in many writings of the American founding period, and in the books of the theorists of liberal democracy who preceded and influenced our Founders. Its locus classicus is in The Federalist Papers.
In these works, two great arguments prevail for separating the executive from the legislative powers of government. Not only was the concentration of all three powers in the hands of one man or body of men deemed "the very definition of tyranny"11; but it was also understood that the powers entailed different duties, which themselves required different characters in those performing them for their proper fulfillment. Separating powers, then, made it more likely that the character of the man or body of men would befit the specific duties required by the offices they filled: for it made it possible to assign the corresponding institutions various compositions, and different modes of election and lengths of term.
The executive power was to be wielded by one man, who was elected by a national majority of citizens to serve a four-year term. Being one would best enable him to act, action being what the executive power requires above all. (It is common sense, born of common experience, that if action is required, one man is more suited to the task than a group.) He was to be elected by a national constituency because he was to speak and act for the nation, both within the nation and to the world.12 And he was to have a fairly long term in office as his duties required farsightedness, and thus time to carry through what he had undertaken, which a shorter term would not permit.
The word most used by the original proponents of a strong executive was energy, meaning the kind that enables the most swift and decisive action. In today's parlance, this means that the executive is best suited to carry out "cowboy operations." It is a sign of our times that this phrase is used derogatorily not only by bureaucrats, but by most of our leaders. Today, a "cowboy operation" is one that circumvents the deadening paperwork that is the bread of life only for the weak of heart. This paperwork, and the tedium and delay it imposes, is the mark of American government in our time.13 The distinction between government and bureaucracy has become clouded; thus the proper role of the President, the active arm of our government, evokes angst-ridden debate.
One other feature of the executive branch might be mentioned as well: because of its smaller size, it has a greater ability to keep secrets that are a vital component of any effective foreign policy. This ability has been diminished, of course, since the executive has encompassed the great and bloated bureaux, such as the State Department has become. Clandestine operations by the National Security Council staff more closely resemble the mode of the older executive branch than do operations through the State Department today, and are more a bugbear than a problem from this perspective at least.14
We can see everywhere the practical effects of the loss of this original understanding of the virtues proper to the executive. For example, our government, the greatest and oldest democracy in the world, is also the only democracy in the world incapable of passing annual budgets. The reason: a many-headed Congress is impervious to the demands of a weakened president. Our government has been inconstant to the same degree in foreign policy, and in this realm the encroachments of Congress and thebureaux are plainest and most alarming.
Indeed, the War Powers Act and the Congressional Budget and Impoundment Control Act are sister pieces of legislation. The one diminishes the role of the executive in foreign policy; the other removes his influence in the budget process. Both were passed toward the end of the disastrous "Watergate Era" in American government, and the former is only more alarming than the very alarming latter because the ability to pass a budget is irrelevant unless we are capable of preserving our physical existence. And our capability for that is impaired, since with a weakened executive, we are incapable of appearing to the world as a unified nation either in speech (e.g., in negotiation and trade) or in deed.
Now consider Congress, which has angled itself into a position of unprecedented foreign policy-making power its capacity for keeping mum has become an international joke, even (if not especially) with the most delicate national security considerations involved. (The C.IA itself has been rendered largely incapable of keeping secrets, for its doings are required to be reported to congressional intelligence committees-which means they become quickly known to the Washington press corps.) Nor has the Congress shown itself capable of steadiness in policy.
In contrast to the President's unflagging support of the contras, it has made such support legal and illegal a half-dozen times in recent years: In 1977 and 1978, Congress appropriated aid to President Somoza. When the communist Sandinistas came to power, Congress sent them some $100 million in 1979-1980. In 1983 it appropriated $24 million to the rebel contras, but in 1984 blocked all such aid of any kind with the infamous Boland Amendment. In 1985 it waffled, voting first against contra aid and then for it, repealing the Boland ban. Last year it voted to send the contras $100 million; but since the elections on November 4 many have suggested that the greater part of that will likely be rescinded.
Energy and dispatch? The very construction of Congress-a large and disparate body that was meant to promote deliberation and compromise-disallows it these qualities.15
These obvious differences between President and Congress-commonplaces to our Founders-must be articulated again in our time, so that the American people can grasp the reason for the embarrassment they feel for their government, and so that they will consequently support a president who fights to reestablish his proper compass within the government; but in a way they skirt the stickiest point about the situation confronting us today.
The Argument from Precedent
Everyone agrees that America is a nation in which the law must reign supreme. It is for the highest as well as the lowest among us to revere and respect. What, then, is the response to those critics who charge the Reagan Administration with acting outside of the law with respect to the Boland Amendment?
In this regard, much wisdom can be garnered from a consideration of precedent.
The precedents that are most fitting in this context must be distinguished from repeated assertions of executive power in our history that have gone without serious challenge. When Mr. Truman, for example, ignored Congress upon initiating the Korean War, in order firmly to establish his authority in the realm of foreign policy, he no doubt ruffled some congressional feathers. But in most times, as in his, no crisis will ensue from such executive behavior because the policy itself will be judged right by an essentially unified government.16
This was not the case when, in the year between the fall of France in 1940 and the German invasion of Russia in 1941, Britain's defeat by Hitler appeared probable. At that time, the U.S. Congress, enamored of its policy of "neutrality," had tried to prevent President Roosevelt from aiding Churchill's Britain in its embattled and lonely cause. The President deemed that the loss to Germany of Britain's fleet, combined with the German alliances then in effect and the German conquests theretofore, would render the United States untenable. So he arranged, by a simple executive order which many considered illegal, to transfer 50 American destroyers to Britain. He believed it his duty to do this, statutory prohibitions notwithstanding, in order to fulfill his oath of office. He risked impeachment by his action. But he took that risk in the service of American liberty under law.
Roosevelt's action compels us to acknowledge the importance of executive power in a liberal democracy. The even greater example of executive authority, exhibited in the nation's greatest crisis, was set by Abraham Lincoln. Lincoln's extraordinary actions dwarf those of Roosevelt or those of anyone in the Reagan administration. For with Congress out of session in 1861, Lincoln called up troops, had Southern ports blockaded, and suspended the writ of habeas corpus. Even when he called Congress back into session, of course, he was able to spend his energy fighting the Confederate States rather than it, since it, unlike Mr. Reagan's Congress today, was composed of a great majority of his partisan fellow Republicans, who agreed with him on what constituted an enemy. But in suspending habeas corpus, Lincoln did refuse to accept a writ issued by the United States Chief Justice. And he defended this in terms of it being his highest duty to preserve the government and the Union: ". . . are all the laws but one to go unexecuted," he asked, "and the government itself go to pieces, lest that one be violated?"17
Basing his arguments upon those summoned by Lincoln and Roosevelt, among others, Mr. Reagan could forthrightly defend all the actions of his loyal officers that are now called into question by Congress. He has already articulated a judgment that is analogous to that passed by Roosevelt in 1940. President Reagan has said that the presence of the Soviet-proxy Sandinista regime in Nicaragua will render null and void our capacity to react to Soviet invasions of Western Europe or the Middle East, by tying us down in a defense of our own borders. Consequently, he should have considered it his constitutional right and his duty as America's Chief Executive to act so as to avert national catastrophe in the long haul.
In his public arguments, Mr. Reagan would cite the actions of his great predecessors. And like them, he would deny having broken any laws. In this he would be on firm ground: the vagueness of the Boland Amendment on top of its questionable constitutionality, the inconsistency of Congress on top of the President's constitutional right and duty to interpret the law in accord with the needs of national survival, all support the argument that not even statutory law was ever violated.18
We have invoked the constitutional right of the President to interpret the law, and to stand as the primary authority in regard to foreign policy. It is certainly Mr. Reagan's province and duty to claim these rights, and to act upon the basis of that claim while in office. The Constitution allows this by its vagueness in regard to what the limits of the executive power are; but it does not and it could not, do more. In the end, the constitutional right of any president to wield great authority-over domestic or foreign policy-is his right to fight politically for implementation of his agenda.
The Argument from the Constitution
The Constitution is not absolutely clear about the dividing line between the authority of the legislative and executive branches of government. It does not read like directions for assembling a cart because it was not constituting a government to act as a machine. It was written with the end in mind of providing for a democracy in which partisan politics would continue freely-sometimes messily.
Thus the President's prescribed oath requires him only to "faithfully execute the office of President of the United States," and to "preserve, protect, and defend" the Constitution. It neither allows him to make laws, nor requires him to allow the Congress and the courts to say what the law means, above all when it comes to matters peculiarly within his province, e.g., foreign policy. And should it come to a law that is very likely unconstitutional, which the Boland Amendment as interpreted by Congress is, then his oath seems to require him to defy the congressional will.
If the line of separation between the executive and the legislative powers is unclear in the Constitution, the fact that the executive was to be strong and independent is not. The Framers were adamant, for prudential reasons some of which are outlined above, in their belief that a strong and independent executive was vital to a healthy democracy. Thus, as Alexander Hamilton emphasized in 1793, they codified a plenary grant of "THE EXECUTIVE POWER" to the President, in contrast to "all legislative powers HEREIN GRANTED" to the Congress.19
In a nation of law such as ours, executive strength and independence could certainly not be relied on were the executive strictly bound to obey every jot and tittle of the laws as made and interpreted by Congress: he would be simply their puppet in this case-particularly if congressional interpretations of the law impinged on the legitimate scope of executive authority-as all can see. Thus, writes Publius in Federalist no. 71: "It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government."
Common sense suggests why any executive, in order to execute and enforce the law, and thus to preserve the peace, must be free of detailed restrictions, and preserve for himself some latitude in interpreting what law means: Wyatt Earp-to recur to an earlier instance of "cowboy operations"-was compelled to do things from time to time that would likely have been illegal if undertaken by private citizens. And for a national executive officer, who is charged with preserving the peace and protecting his people in a world full of countless less-than-civilized nations, how much greater is the necessity that his power encompass great freedom of action! Indeed, violent and unpredictable as Earp's Tombstone might have been, it couldn't hold a candle to the lawless state of international relations today. Do we really want a legalistic bureaucrat defending American interests in such a world?20
And yet ultimately, the power of an executive in a democracy-whether of a lawman or of a president-is not contingent on his own will, but on that of those for whom he acts.
In recent days, which begin to seem decades, we have heard congressmen painting lurid and seemingly paranoid scenarios of what might happen to us at the hands of a "lawless" (meaning independent) executive. These congressmen seem to forget where they are; for America is not Mussolini's Italy. We are a constitutional democracy. And to recall what that means, in the face of their misleading rhetoric, it would do us well to recall and ponder the two extraordinary checks upon the executive power of the President that are to be found in the Constitution: the requirement that he stand for reelection at four-year intervals, and the power to impeach him that is vested in the national legislature.
The Founders knew well that in every constitutional democracy it would be the law-making body that would be strongest. So, they allowed, would it be in ours. But they knew as well that an overbearing legislature could pose a threat to democratic rule. Consequently, they structured our government, with its intricate framework of separated and mixed powers, to make "legislative tyranny" less probable, and to ensure as best they could the independence and authority of the executive and judicial departments. And in this regard it is important to understand the meaning of the impeachment power.
On the one hand the impeachment power is a sign that the Founders recognized the legislative as the predominant branch in a democratic government; on the other hand it ensures, by virtue of its being the only constitutional means for Congress effectively to subdue an executive who is implacably recalcitrant, that the legislature would be forced in doing so to defend its actions publicly; for its members would be loath to impeach a president whom they could not simultaneously make the people despise. Thus Congress was not to be able to encroach upon the executive power with stealth.
An impeachment battle cuts both ways. It compels both Congress and the president to make their cases in public. And when this is done, then the people will have the opportunity to pass ultimate judgment. Democracy thereby prevails. The people are watchguards of their own liberty.
Thus the two, and the only two constitutional checks which ultimately limit the President's use of executive power-electoral defeat and impeachment-both come down in the end to a matter of the President's standing in the court of public opinion. This fact provides the bulwark of the doctrine that John Locke called "executive prerogative."
As Locke explained it, the executive may rise above the law, for the sake of the law, or so that the nation might weather crises, in crisis times. Thus it was to be recurred to very rarely. But in the writings of Locke the prerogative remained outside the law. The American system in effect "constitutionalizes" the prerogative by explicitly granting the executive power to the President, and by requiring the President (and not congressmen) to swear to preserve, protect, and defend the Constitution as the highest duty of his office.
The Framers knew as well as Locke that the power of the executive to defend the Constitution hinges ultimately on his ability to muster popular support. His ability to serve the people in bad times, as in good, in extraordinary as in ordinary ways, is a function of his ability to convince the people, by argument and by example, to stand by him. And this is not the prerogative of despots: despots cannot break the law, for they are the law. But the people are the ultimate source of ordinary law in America, and the President is therefore their effective instrument, to act for them when needed, but to be removed by them when they think right.
A congressional majority insults the people when it confuses opposition to its own will-particularly by a man with a constituency comprising a national majority-with despotism. It loses sight of the fact that its role is to serve Americans rather than to embody them as the Politburo claims to embody the Soviet people. Publius, again inFederalist no. 71, foresaw the problem: "The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter."
In sum: the Congress today, using the bureaucracy as described above to emasculate the executive and to circumvent the people, has lost sight of the fact that, far from being a good in itself, congressional power was constituted to promote a higher good-the safety and happiness of the people through popular government. As a result, not only popular government, but government itself-which requires an active arm, or an executive-has been stymied. And as things now stand, only the President is in position to incite the sort of political brouhaha that would make public the underlying issues, involve the people, and thus eventually revive, by uniting, the government
Mr. Reagan now has the opportunity: by taking responsibility for the defensible actions of his administration-actions which fall short of representing a recurrence to "executive prerogative"-he would incite just such a contest. By failing to do so, he might weather the storm of Iran-contra: but the consequent sun will afford us little light, for the real crisis in American government will have gone without redress. And the time when an executive will find it imperative to tread above the law, as it would seem only Lincoln has been forced to do thus far, will draw nearer.
Conclusion: A Return to Democratic Political life
The attempt by the present administration to "weather the storm" of the present controversy is epitomized by the appointment of a "special prosecutor" (or an "independent counsel") to investigate and resolve it. Two things are significant about these increasingly common appointments: first, as the 1978 law providing for them manifests a profound distrust of the executive by Congress, they symbolize the institutional animosity that prevails within our recent governments. And second, they presuppose that there are merely procedural or legal solutions to the fundamental political disputes that underlie institutional conflict in American government.
At the beginning of the so-called "Progressive Era," the idea became current that the days of political controversy were over. What we needed now, many said, was an "administrative science" that would lend objective rationality and efficiency to the practices of democratic life.21 We have seen these arguments come home to roost in the institution of our bureaucracy-stocked full with intellectual specialists claiming to act as nonpartisan experts. But we have also seen ample and positive proof of the utter fallaciousness of these claims to technocratic nonpartisanship. The deeds, and the consequences of those deeds, of today's bureaucrats and their congressional allies are nothing if not partisan.
Should public policy aim at ensuring equal opportunity or enforcing affirmative action? Should we seek to develop and implement strategic defenses? Should we prevent communist entrenchment in Central America? These are political questions. In democratic governments, and especially in our own, they ought to be contested and resolved publicly. Yet today, the majority in Congress, in cahoots with the bureaux and in contempt of the executive, seeks to answer these questions on its own, while insulating itself from the partisan controversy these issues inspire in "the madding crowd."
Sadly, it must be said that conditions now reigning in America take on an increasing similarity to those in Nicaragua. The President and the Democratic Congress embody nonnegotiable positions about matters that do and will most intimately affect the nation's future. One of them will need to win, the other lose, before the deadlock in our government will be broken-before it can act to support one side or the other in any war, before it can either reduce spending or raise taxes to reduce the federal deficit, etc.
In a democracy, the answer to this situation is to hold a debate, and then an election. And yet are "We the People" consulted by congressmen, defending their most partisan views in a public way for us to Judge? No: Congress as a body disguises its national agenda by appealing to its constituencies' private concerns. And has the President attacked the majority in Congress as a partisan body, with an argument formulated to compel a public choice between his view and its? No again: Rather, in 1984, his campaign aimed to increase his personal totals by avoiding partisan controversy; and in 1986, he and most Republican candidates acquiesced to the absurd myth, beloved of Mr. Reagan's political opponents, that there were no national issues that should disturb the people's calm.
It is in the alternative but prevailing method of resolving the controversy over Nicaragua-placing responsibility for determining the proper shape of separated powers, and thus the fate of contra aid, in the hands of an "independent counsel"-that ours most appears as a communist government: only procedures and power look to be at issue between factions within it; and real governing is placed within the hands of "objective specialists" in law and administration.22 And Americans appear almost as a subjected people: the great majority of us stand by helpless to determine the nation's future. (Even when we vote to do so, as most think they are doing in presidential races, nothing happens; so we are voting in ever-decreasing numbers.)
Mr. Reagan cannot win under these terms; yet in a curious way, his agreement to an "Independent counsel," for the purpose of "weathering the storm," is consistent with his presidency thus far. He has repeatedly allowed political defeats, born of the institutional weakness of his office, to appear as victorious compromises born of personal strength. In so doing, he has allowed his expressed policies to be sullied in the public mind without being implemented.23
Stripped of constitutional and traditional powers, Mr. Reagan has, or any future president would have, only one realistic step left: to appeal to the ultimate source of those powers, the people of the United States who gave him a 49-state victory in 1984. His forcing upon his opponents a political battle is the only means available to him at this point to save his presidency. Under the present circumstances, it would necessarily crystallize public opinion about Central American communism and other great issues; and it would necessarily allow that opinion to become manifest in government, uniting the government by bringing about a very partisan election in 1988.
Now of course, Mr. Reagan may lose this battle for public support with his opponents in Congress and elsewhere. He has conceded much already. But now the time has come that he must ask himself, Which is the nobler course for a democratic statesman: to risk defeat in the public arena and lose, or to accept it, and the subversion of democratic forms, without a fight?
Even if the President should lose in a head-on battle with his political foes, he might still have served the nation in exemplary fashion. By forcing the Democratic Congress to become partisan, or political, or openly controversial, he will have given it a face, and those within it names. Even in victory, his opponents in Congress would be held accountable for the consequences of their actions from there on. The people would have a vista through which to look and be pleased, or to see and be angry and act to rectify.
Win or lose, the legacy of Mr. Reagan's presidency, should he finally decide to wage political war in the great tradition of his office, would be that it vindicated the assertion of the Founders, that in case of conflict between the legislative and executive branches, "the people shall judge."
The President can retire knowing that his term marked or initiated a reemergence of real government and of democratic political life in America. To attain that blessing is surely within his grasp. The country needs him to do it now.
The author wishes to acknowledge his indebtedness to John Marini for numerous conversations regarding the thesis herein set forth.
1The editors of The Wall Street Journal were a notable exception in the early days, but were placed in an embarrassing position: they found themselves opposed, in defending the President and the actions of his administration, by none other than the President himself.
2Except in rare times of "crises of the house divided," the American party system differs from those in most European countries in this way: our great parties are agreed in principle, and do not represent wholly different ways of life, or constitutions. See Harry V. Jaffa, "The Nature and Origin of the American Party System," in Equality andLiberty (New York: Oxford University Press), 1965.
3This view has been set forth by Anthony Lewis, for example, of The New York Times. Any American politician who compares American support for anti-communist forces in the world with Soviet subversion in Afghanistan or elsewhere, or calls Afghanistan "the Soviet Union's Vietnam," lends it credence.
4See "Overseas Pleas for Show of Muscle," by Henrik Bering-Jensen, In Insight, January 12, 1987.
5A fuller account of this revolution in American politics, inconceivable prior to the advent of the bureaucratic state, can be found in Morris Fiorina's Congress-Keystone of the Washington Establishment (Yale University Press, 1977).
6See "The Political Character of the Charges Against Nixon" and "Watergate and Bureaucracy," papers delivered by John Adams Wettergreen and John Marini, respectively, at the 1984 meetings of the American Political Science Association In Washington, D.C.
7This obviously applies only to the covert funding of freedom fighters, and not to the Iranian arms deal. Whether or not the latter was a calculated attempt to strengthen pro-American and/or anti-communist elements in Iran, and reestablish American influence over Iran in the future, it represented a disastrous stratagem politically. Iran stands as a symbol of American weakness, and even the appearance that we buckled under to its demands for the release of hostages leaves those who elected Mr. Reagan, always a tough talker, with a feeling of shame and a sense of betrayal. Still, it is the thesis of this paper that the Nicaraguan connection is at the core of the Iran-contrascandal. Reagan's enemies in Congress were gleeful at the political ammunition the Iranian deal afforded them: but glee turned to anger, and talk of weakness to talk of illegality, when covert contra funding was revealed. The former did not raise a partisan political issue, but the latter did. That the executive would carry out such an expressed policy unilaterally is what really set the regnant Washington establishment on its ear.
8See, for example, "Shultz's Top Aide Blasts Reagan Staff," by Robert S. Greenberger and Jane Mayer, in The Wall Street Journal, November 25, 1986: "In blunt and highly unusual congressional testimony, the State Department's second-ranking official, John Whitehead . . . sharply questioned the wisdom of shipping arms to Iran, [and] contradicted Mr. Reagan himself on certain key points." Perhaps even more shocking is the report that Whitehead "called [on Congress] for a review of the extent to which the [National Security Council], which traditionally advises the president, should be involved in operations." The State Department, in inviting Congress to investigate the President's office, plays in part an old game. The Foreign Service-professional and tenured-has always felt itself the fixed guardian of our foreign relations and has sought independence from executives who come and go. This factor is, within limits, not necessarily evil. But coupled now with the extended oversight of Congress, it amounts to open rebellion.
9Legislators who have approached honesty about their goodwill toward the Sandinistas, such as Senator John Kerry (D-Mass.), have felt the displeasure of their fellows who vote identically on contra aid. On the methods used to disguise their leanings by legislators who hold communist revolutions in the "third world" as a positive good, see "Another 'Low Dishonest Decade' on the Left," by Peter Collier and David Horowitz, in Commentary, January 1987. Upon watching the President's State of the Union Address this January 27, however, it was impossible not to notice the openly partisan response to such vows as that there must be no Soviet beachhead in Central America. Had those who sat with hands folded and surly expressions while the Republicans roared forgotten that they were on national television?
10The analogy with the English parliamentary system, which many wish to use as a model for American government, is bad for several reasons. In England, not only does the executive who serves at the pleasure of the legislature exercise real power, but also the legislature bears the responsibilities of government with him. Mrs. Thatcher relies upon the Parliament but takes genuine authority from it. The Parliament supports her, or abandons her, fully knowing that its own composition, and the seats of each of its members, are entirely at risk. Authority and responsibility are thereby shared in equal proportions, and accountability to the people is preserved.
11See James Madison, Federalist no. 4.
12The President is the only American official with a national constituency. (The constituency is structured, of course, through the electoral college system.) No single congressman or senator can speak for us all, and Congress as a whole has no one voice. In recent times, an opposition member of Congress is given equal time to respond to presidential addresses-as they were not after F.D.R's Fireside Chats, for example-largely because this unique virtue of the presidential office has been forgotten.
13See, for example, "Contras Leader Complains of Delay in Arms Aid," by Doyle McManus, in the Los Angeles Times, November 21, 1986: ". . . U.S. officials and Contras sources said . . . that the C.I.A. has held up the first deliveries of arms to the rebels, apparently to ensure that the shipments meet all congressional requirements." Some food and medicine had moved to the freedom fighters since the appropriation of $100 million for Contra aid, but no weapons. Another commodity sent south were representatives of the G.A.O., to inspect Contra records. Meanwhile: "The Managua regime has moved as many as 1,000 troops into Southern Honduras to attack the Contra's main camps there, U.S. and Contra officials say, apparently in hopes of damaging the rebel bases before the new arms arrive." And new missiles (SA-14 ground to air) had arrived in Nicaragua from Moscow.
14To carry out his constitutional duties, the President has been increasingly compelled in recent years to resort to these quasi-official or even unofficial channels. Thus the use of Robert McFarlane even after he had left the N.S.C. Thus too Mr. Nixon's famous "plumbers," originally set up to stop and circumvent the plethora of "leaks" from official executive branch agencies.
15See John Marini, "Administrative Centralization and the Legislature: Why Congress Cannot Govern," delivered at a Claremont Institute panel at the annual meeting of the American Political Science Association on August 31, 1986, in Washington, D.C. Marini demonstrates that a direct corollary of congressional encroachment upon the executive power is congressional inability to perform the principal legislative duties: law-making, deliberation, and representation. Increased legislative oversight of the details of executive administration coincides with a remarkable decrease in deliberation upon, and passage of general laws regarding public policy and aiming at the public good. And who fills the void with regard to general policy-making? The unelective judicial branch of government.
16In this context, see the list published on the op-ed page of The Wall Street Journal, January 15, 1987, which notes 317 cases, between 1798 and 1970, "when the president sent troops into imminent hostilities or transferred arms or other war materiel abroad without any congressional authorization."
17Harry V. Jaffa deals with the actions of Lincoln and Roosevelt in "What President Reagan Ought to Do," an article syndicated by Public Research, Syndicated, in The New Federalist Papers, on January 7, 1987. The Wall Street Journal drew comparisons with the Roosevelt destroyer incident in an editorial on November 26, 1986. But to date, only Patrick Buchanan within the Reagan administration has appeared interested in these arguments.
18Regarding the Boland Amendment's vagueness: "it" is actually three different amendments, each with different requirements and expiration dates. Said one of Rep. Boland's own staffers, "We think [the latest provisions] expired in December, 1985, But we're not entirely certain." Regarding congressional inconsistency: Congress has, by its appropriation of funds last year, effectively repealed and officially repudiated the wisdom of the amendments anyway. And regarding the amendments' constitutional status: if, as the Supreme Court asserted in the case of UNITED STATES v. CURTISS-WRIGHT EXPORT CORP. (1936), the President has broad authority in foreign policy under the Constitution, the Congress has no clear constitutional right to legislate such detailed restrictions on him as are embodied in the Boland Amendments. The executive's power to interpret law will be addressed below.
19See "Pacificus no. 1," In Selected Writings and Speeches of Alexander Hamilton, ed. Morton J. Frisch, (American Enterprise Institute, 1985), pp. 396-404. This essay also speaks to the necessity for extreme presidential attitude in his role of executor of the "law of nations" in peacetime, dealt with below.
20Walter Noble Burns, in his history of Tombstone, reports that, among other things, Earp would now and then deploy the butt of his six-shooter on the heads of known lawless individuals in the area. In this way he maintained respect for and awe of the "law-and-order faction" which he and his brothers represented. In this context writ large, former Senator John Tower has noted more than 150 congressionally induced constraints upon the President's latitude within the international realm just in the last decade.
21See, for example, Woodrow Wilson's "The Study of Administration," in the Political Science Quarterly (July 1887).
22In communist countries, institutional struggles-as between the Soviet state apparatus and the Soviet Communist Party-tend to be power struggles simply. All concerned, if they are to remain in official life, must agree on communist ends. At the same time, those in government regard themselves as technicians or scientists-better equipped to resolve controversy in the people's interest than the people themselves. The like contempt in which such American bureaucrats and specialists hold the people is illustrated by the answer of an official in the Justice Department, when asked recently why the administration has offered no constitutional defense of its actions thus far. Only college professors, he said, would be impressed by such arguments. One can also see by this story the extent to which the executive bureaucracy is incompatible with the proper character of the executive power, not to mention democracy itself.
23A corollary of this habit of Mr. Reagan's is his tendency to back away from defending successful policies that are attacked in a vehement manner: ironically, the Iran initiative-if little publicized reports are correct that it was aimed at subverting nefarious Soviet plans for an Iranian takeover, and that it succeeded in strengthening the anti-Soviet faction there-may prove to be one of these. See, for instance, Neil C. Livingstone, "What Ollie North Told Me Before He Took the Fifth," In National Review,January 30, 1987.