by Gregory Bresiger, Posted September 17, 2008
Executive agreements shall not be made in lieu of treaties.... The President shall publish all executive agreements except that those which in his judgment require secrecy shall be submitted to the appropriate committees of Congress in lieu of publication.
— Part of one of the proposed Bricker amendments
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
— Tenth Amendment to the Constitution
George Bush, basically unchallenged by Congress in his calamitous war in Iraq, can thank several of his Republican predecessors for his imperial power.
Out of power for some 20 years in the early 1950s, many Republicans had been critics of the secretive foreign policy of Democratic presidents in the 1930s and 1940s. These were the Republicans who supported the Bricker amendment, which aimed to rein in the power of presidents.
The Bricker amendment’s intent was at least twofold.
First, it would prevent presidential executive agreements from undermining the powers of the states as detailed in the Tenth Amendment. Since the Supreme Court had held that treaties, which require the approval of the Senate, override Tenth Amendment provisions, critics feared that executive agreements, which would be issued by imperial presidents without Senate consent, would constitute an even graver assault on the Tenth Amendment.
More broadly, Bricker advocates warned that imperial presidents could make agreements that pushed the nation into war situations without bringing those many agreements before a Senate treaty-review process.
The Bricker amendment in its various incarnations was actually a collection of proposed amendments to the Constitution that not only would have prohibited treaties that conflicted with the Constitution but also would have restricted the ability of presidents to enter into executive agreements. Executive agreements are used by imperial presidents to bypass the often messy advise-and-consent, treaty-review process.
The amendment was originally offered and generally backed by Republicans who were upset by Franklin Roosevelt’s and Harry Truman’s foreign policies in the 1940s and 1950s. Decades later, when it was Republican presidents who seemed to ignore Congress’s powers, many Republicans would forget that it was their party that had proposed the Bricker amendment.
Indeed, a major political party out of power will often change once it has captured office. A recent example is George W. Bush’s comments in the presidential debate of 2000 on the overextension of U.S. commitments around the world and the tendency to use American power as “rent-a-troops.” Yet since the election, Bush has arguably become the greatest interventionist president since Woodrow Wilson.
But part of the problem of presidents who behave like monarchs isn’t that they were reviled abroad but how these “great” presidents were viewed at home. World War I and World War II presidents had become heroes to most mainstream historians and journalists by the late 1940s, even though those presidents either made executive agreements or stretched presidential powers to the breaking point. Still, some in post–World War II America were alarmed.
After 20 years of presidential defeats, Republicans finally captured the presidency in 1952. Initially, many were enthusiastic about containing the war powers and treaty-making powers of presidents. But people soon discovered that many of the critics of presidential prerogative were not as enthusiastic about controlling the institutional powers of the chief executive when one of their own occupied the office.
The Bricker amendment was possibly the last serious effort to turn back imperial presidents. It represented “the high water mark of the isolationist surge in the 1950s,” one historian wrote. It was also, he says, an attempt to reverse “twenty years of usurpation of Congress’ constitutional powers.”
Still, the story of the Bricker amendment is also the story of how ultimately a Republican presidency — the Eisenhower administration — with the help of Democrats, defeated it. Eisenhower complained that it represented a refusal of America “to accept the leadership of world democracy that had been thrust upon it.”
Sen. John W. Bricker was an Ohio Republican who had run as Thomas Dewey’s vice-presidential candidate in the 1944 election. Franklin Roosevelt easily won.
Purposes of the amendment
Bricker, unlike Dewey, represented the so-called isolationist wing of the Republican Party. These were men who questioned the backdoor foreign policies of the Roosevelt and Truman administrations. By 1950 and the coming of the Korean War, the ability of a president to ignore Congress and the Tenth Amendment had become apparent to Bricker. “The constitutional power of Congress to determine American foreign policy is at stake,” he warned.
One of the goals of the amendment was to prevent presidents from liberally interpreting open-ended treaties and charters, such as the UN treaty or the NATO alliance. Both Republican and Democratic presidents came to believe that those treaties gave them huge power to enter into and wage war with little or no congressional approval. A president with myriad treaty obligations, critics said, could easily go to war without consulting Congress.
The Bricker amendment was also intended to ensure that presidents could not subvert the power of the states and Congress through executive agreements with foreign regimes. By the 1940s, more and more of them were used by the president, who shunned the sometimes-messy treaty-review process. Besides liberally interpreting existing treaty obligations, executive agreements, critics complained, were not mentioned in the Constitution. The Bricker amendment required that those agreements be submitted to Congress.
Those who backed the use of executive agreements and fought Bricker insisted they were needed to ensure that a president had the flexibility to act in foreign affairs. They include diplomatic historians such as Alexander DeConde, the author of A History of American Foreign Policy, who wrote, “Isolationists sought to shackle the President’s power at a time when international crises were moving with awesome swiftness.” On the other hand, we will see that the failure to “shackle” imperial presidents has led to America’s participation in endless wars.
Other critics of Bricker argued that the courts would prevent the presidents from making illegal executive agreements that violated the Constitution. Later, critics pointed to various Supreme Court decisions and congressional actions that have required a president to comply with the Constitution. For instance, the Case Act of 1972 during the era of President Nixon required the secretary of State to transmit to Congress any international agreement made by means other than treaty.
“But virtually every subsequent presidency has circumvented this law,” writes one legal commentator. While Democrats blazed a path of presidential imperiousness in the early and mid part of the 20th century, Republican administrations felt no obligation to return to a respectful relationship with Congress and the states.
J. Woodford Howard Jr., a legal commentator in The Oxford Guide to the Supreme Court, writes,
Covert agreements regarding South Vietnam, Sinai and disarmament, for instance, were labeled as arrangements or accords, thus requiring no report. The Iran-Contra scandal illustrates other hazards of compliance. Executive agreements are striking examples of expanding presidential power.
The roots of abuse
Bricker and others saw “expanding presidential power” coming. Indeed, given various U.S. Supreme Court decisions affirming the right of the president to make executive agreements, Bricker warned that the Tenth Amendment had become “dead as a dodo.”
Bricker was strongly backed in his efforts by Frank Holman, president of the American Bar Association. Holman in 1940 had argued that Roosevelt’s pro-British policies practically guaranteed that the United States would enter World War II. Even though Roosevelt had campaigned for reelection in 1940 on a platform of neutrality, keeping the nation out of World War II, he had been instructing the Navy to help convoy British ships in dangerous areas. In Prophets on the Right, Ronald Radosh details this policy that misled many.
By the early 1950s, Holman charged that through the use of executive fiat, “the forces of autocracy and bureaucracy were moving toward a centralized government so powerful as to destroy the rights of the individual, the rights of states, and the right to local self-government.”
The “isolationist” members of Congress also believed the rights of Congress to limit imperial presidents in matters of war and peace had been under attack at least since the early part of the 20th century.
Indeed, former Navy Secretary John Lehman, in his book Making War, documents that development even as he bragged that he participated in it:
By the mid-twentieth century, the ironic situation had developed whereby important matters were handled by informal executive agreements; unimportant matters, by solemn treaties.
In fact, Lehman, as an aide to Secretary of State Henry Kissinger in the 1970s, advised Kissinger not to submit an agreement with the Soviets on offensive weapons in the form of a treaty. Kissinger took his advice.
This abuse of executive agreements — the abuse that the Bricker amendment was designed to remedy — had been building up over generations even in Bricker’s time. For example, in 1905 when the Senate wouldn’t approve a treaty with Santo Domingo, Theodore Roosevelt simply put it into effect until the Senate relented two years later. Roosevelt also made a secret agreement with the Japanese concerning Korea in 1907. The Senate was neither informed nor consulted.
One of Franklin Roosevelt’s most controversial actions — the destroyers-for-naval-bases deal of 1940 with the British — was deemed by his legal advisors to be an executive agreement. Therefore, it was not subject to the congressional treaty-review process. Congress also never reviewed or approved the controversial agreements made by a dying Roosevelt at Yalta, the agreements that divided Central and Eastern Europe in the waning days of World War II.
The Korean War
But the Korean War, in retrospect, seems a signal departure from any pretense of presidential legality. Roosevelt had gone to Congress for a formal declaration in World War II. In 1950, as he ordered troops to Korea, Truman never asked for a war declaration. The American president, as commander in chief, had become a king who could plunge the nation into war at his whim, critics believed.
The outbreak of the Korean War fed this fear of an imperial president who could sidestep Congress and the people. As the war became more and more unpopular, several mainstream political figures believed Truman’s actions had clearly crossed the line of illegality.
Some presidents had been much more effective or discreet in cloaking their foreign-policy power grabs. For example, many of Wilson’s pro-British policies prior to U.S intervention in World War I had been effected in secret, as was later documented by the correspondence between Wilson and his closest advisor, Col. E.M. House. Similarly, Roosevelt had quietly worked with the British in the period between the outbreak of World War II and the bombing of Pearl Harbor.
The Korean War was different. Here the president didn’t even seek the pretext of asking Congress for a declaration of war. He argued that UN treaty commitments gave him the right to send troops to Korea. Some maverick members of Congress disagreed.
“My conclusion, therefore,” wrote Sen. Robert Taft (R-Ohio), “is that in the case of Korea, where a war was already under way, we had no right to send troops to a nation, with whom we had no treaty, to defend it against attack by another nation, no matter how unprincipled the aggression might be, unless the whole matter was submitted to Congress and a declaration of war or some other direct authority obtained.”
Taft, a supporter of Bricker, was going through his final illness as the debate heated up. Howard Buffett, Republican congressman from Nebraska, charged that Truman had used the UN treaty as a cover. “Truman entered the war by his own act, and not because of a United Nations decision,” Buffett said.
Defeat of the amendment
When the Bricker amendment was offered at the beginning of 1953, it had more than enough co-sponsors to pass the Senate. Yet little by little, as the Eisenhower administration turned against it, the amendment was defeated. Nevertheless, a watered-down version failed by only one vote. The vice president stood by in the Senate, ready to cast the deciding vote if needed.
Vice President Richard Nixon and Sen. Lyndon Johnson (D-Texas) helped kill the amendment. They claimed it would have severely hampered the president’s ability to conduct foreign policy.
Johnson, then the Senate minority leader, called the Bricker amendment “the worst bill I can think of. It will be the bane of every president we elect.”
Here was an irony of his opposition: Johnson conceded the bill’s popularity. It was “apparent from the start that it could not be defeated by a straight-out vote. No one could vote against the Bricker amendment with impunity and very few could vote against it and survive at all,” Johnson told his aide Bobby Baker.
Johnson and Nixon would later be the main beneficiaries of its defeat, each waging tragic wars and doing it in ostensibly legal ways during their presidencies. Johnson, as president, later sent 500,000 troops to Vietnam after campaigning against the Vietnam War in 1964. Nixon, elected in 1968 to end U.S. participation in the war, secretly expanded the war into Cambodia and Laos.
Others responsible for torpedoing Bricker included Republicans who, when out of power in the 1940s and early 50s, had been warning that the presidency was destroying the constitutional separation of powers.
We speak now of President Eisenhower and his first secretary of State, John Foster Dulles. They had once shared many of the objections of “isolationists.”
Here is what Dulles said before he became U.S. secretary of State:
Treaties can take powers away from Congress and give them to the president. They can take powers from states and give them to the federal government or to some international body and they can cut across the rights given to the people by their constitutional Bill of Rights.
Later called to account in the debate over the Bricker amendment, Dulles would say only that the Eisenhower administration would never abuse its power.
With the vigorous backstage work of the administration, the Bricker amendment failed. Yet, because it mustered many votes and came close to passage, “the fight over the Bricker amendment had important consequences,” writes Duane Tananbaum in The Bricker Amendment Controversy. “Even though the amendment was defeated, the conflict made Eisenhower and his advisers more aware of Congress’s resentments over past encroachments by previous presidents on legislative prerogatives.”
The Bricker amendment, which has been reintroduced from time to time in Congress, remains relevant in an era of the imperial president, an era in which the protection of liberty requires the restraint of the institutional powers of the president. Frank Holman, in his memoirs, called the Bricker amendment a good cause:
“However long the fight for an adequate constitutional amendment on treaties and other international agreements,” he wrote, “it will and must be won.”
Gregory Bresiger is managing editor of Traders Magazine and also writes for the New York Post Sunday Business Section.
This article originally appeared in the June 2008 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.