Without 'Advice and Consent'

...THINKING ALOUD Without 'Advice and Consent' By Reinhold Niebuhr Everyone agrees the power of the President is le-lated to the power of the nation, whose energies and purposes he ultimately directs Most observers also recognize our Founding Fathers could not possibly have foreseen that within 200 years of its birth the Umted States would be one of two countries wielding power of imperial proportions through their economic strength and arsenals of dreaded nuclear weapons This strength enables us to affect the destinies of peoples in both Europe and Asia, even to the point of interfering m a civil war of an obscure Southeast Asian nation when we are convinced either our "principles" or prestige is involved Still, our Foundmg Fathers sought to avoid any monopoly of power, what they defined as "monarchy," by insuring a strict "balance" and "separation of powers" among the Executive, Legislative and Judicial branches of government And to bring about this balance between the Executive and the Legislature, they ordained that the President should receive "the Advice and Consent of the Senate" before committing the nation to treaties or wars On July 31 Senator J W Fulbnght (D-Ark), chairman of the Committee on Foreign Relations, gave expression to the widespread fear that a shrewd President, armed with more extensive Congressional experience than any of his predecessors, was conducting an increasingly unpopular war in defiance of the limits ordained by the Constitution He did this by introducing a resolution—one of those "it is the sense of this Senate" academic exercises—which proposed no new law Intended to clarify an old constitutional principle, it reads "Whereas accurate definitions of national commitment have been obscured in recent years, be it resolved, that it is the sense of this Senate that a national commitment by the United States to a foreign power necessarily and exclusively results from an affirmative action taken by the Executive and Legislative branches of the United States government through means of a treaty, convention or other legislative instrumentality, specifically intended to give effect to such a commitment " Thus the President's authority to commit the nation without the "Advice and Consent" of the Senate was challenged with minimal polemical overtones, but the meaning was clear—the President had exceeded the limits set by the Constitution Introducing his resolution, Fulbnght cited some particulars "For example, Vice President Humphrey in a public statement m April 1966 said that in the Honolulu conference we 'made a pledge of ourselves and our postenty to defeat aggression, to defeat social misery, and to achieve viable political institutions and establish peace in Vietnam These are great commitments I think we have an opening here for realizing the dream of the Great Society in Asia, not just here at home ' " Fulbnght could not have chosen a better example of our unlimited ambitions to extend our idealistic empire, not only in Europe but in Asia There is irony in his use of the Honolulu conference to illustrate Presidential pretensions of omnipotence, considering the speculation of some of our more cynical journalists that the President chose the date of the conference to overshadow the Senate Foreign Relations Committee hearings on our Asian policy Fulbnght was the logical sponsor of a resolution recalling the Constitution's principle of Senatorial "Advice and Consent" on foreign policy commitments, for President Johnson had not bothered to win the advice of the Foreign Relations Committee He did not even debate or challenge the very impressive witnesses who testified before the Committee this past winter, including former Ambassador to Japan Edwin O Reischauer, former Ambassador George Kennan, General James Gavin and a host of university specialists on Asia As Fulbnght observed, too, the peace ambassadors the President dispatched to the Vatican and many European and Asian capitals were sent with neither his advice nor consent In short, the continued escalation of the war in the name of peace was purely a cunning strategy of an influential President who had undertaken sole responsibility for this dubious war Fulbnght's "sense of the Senate" resolution at least questions the validity of all commitments not embodied in treaties passed by the "Consent" of the Senate But the "Advice" stipulated in the constitutional provision appears to be more difficult to apply I am one of a growing number of Americans who agree with the distinguished Swedish social scientist, Gunnar Myrdal, that our involvement m Vietnam is "tragic" because it prevents an affluent nation from dealing with its growing urban problems, particulaily those of our ghettos I also agree with Secretary General U Thant that our involvement in Vietnam is based upon the error of regaidmg the issue there as the containment of Communism, when we are in fact dealing with the nationahsm of a small nation of Asia Thus I find it disturbmg that the Fulbnght resolution?despite the vigorous public debate stimulated by the current hearings on it, and despite its support by Senators such as Richard Russell (D -Ga ), influential chairman of the Armed Services Committee—has had so little effect on the Administration Perhaps this impotence is due to the vagueness of the concept of "Advice" as one of the Legislature's "checks and balances" on Executive power Even in domestic policy, especially in fiscal affairs, where the President's strength does not equal that of a prime minister in a parliamentary system, our whole history persuades us that a complete balance of power between the Executive and Legislative branches is unrealistic if it undermines the necessary initiative that all strong Presidents have exercised As a matter of fact, we have less fear of the Executive prerogative than European parliamentary democracies under the aegis of a constitutional hereditary monarch As Denis Brogan has observed, we have an "elected Monarch" who must submit his regime to the suffrage of the whole nation every four years And it is precisely because he is an "elected Monarch" that we entrust him with more power than the hereditary constitutional monarchs oi the European democracies, who cannot interfere with the elected ministers and have become mere symbols of the unity of their nations above the divisions of party politics Whethei in the Legislature or in the country at large, we trust the President to take the initiative as long as Congress and the nation have the power to veto his policies This is particularly true in foreign affairs, for the Constitution has named the President "Commander in Chief" of our Armed forces While the Constitution reserves to Congress the right to declare war, many Presidents have waged undeclared war when the national security seemed endangered Senator Fulbnght has ruefully confessed that he was the author of a resolution three years ago that empowered the President to "take all necessary actions of defense" when our fleet was attacked in the Tonkin Gulf Just two weeks before the Fulbnght resolution was presented on July 14, the President gave a daring exhibition that revealed what a combination of political persuasion and the authority of "Commander in Chief" could accomplish The President conferred with his military advisors on the extent of an increase in Army personnel m Vietnam General Westmoreland astounded the nation by asking for 100,000 more troops This request meant more casualties and adding $5 billion to the already momentous, not to say monstrous, costs of this unpopular war President Johnson was naturally conscious of the political hazard of Westmoreland's request Another Presidential advisor was General Earle G Wheeler, chairman of the Joint Chiefs of Staff His views were not made public, though he was known to be m favor of bombing the North Finally, there was the Secretary of Defense, Robert McNamara, just back from an investigation of the war theater He let it be known after his departure from Asia that he thought the available troops should be deployed more effectively before additional troops were sent in His counsel must have been one of moderation At any rate, the three advisors and the President reached an agreement, and the President called a press conference to publish this startling unanimity The President stated the modest agreement He said "The troops which General Westmoreland wants and requests, as we feel it necessary, will be supplied " The number was not mentioned The President went down the sofa on which the military chiefs were sitting "Is not this true...

...General Westmoreland''" asked he "I agree," answered the General "That is correct," answered General Wheeler Secretary McNamara was content to put a copmg stone on this astounding unanimity by a simple "Yes Sir " The Legislature was involved in this agreement, and its "Advice and Consent" was not solicited It is only fair to say that in three weeks the exact number of additional troops to be sent to Vietnam was announced, bringing our total forces to well over 400,000 men Then the President sought the consent of the Congress for an unprecedented income surtax of 10 per cent It took some courage to levy this surtax before next year's election, in which the veto power of the voters will be exercised on this "elected Monarch But Johnson may have been moved by political shrewdness as well as courage He had read the polls, and while his popularity was waning, he still could count on a majority actuated by patriotism or a residual dogma that we must contain Communism at all costs They would outnumber the defectors in the universities and churches, among journalists, and the General Gavins, who think the Vietnam venture is futile Besides, a Presidential election is waged on many issues Would the gop nominate a candidate who is unequivocally for a negotiated settlement, and also capable of challenging Johnson on his domestic achievements'' There are many reasons why Johnson can make optimistic calculations Only the desperate inhabitants of the ghettos seem in a mood to join the dissidents...