Crisis and Command: A History of Executive Power from George Washington to George W. Bush (48 page)

In a 6-3 decision, the Supreme Court found that seizure of the mills fell within Congress's power over interstate commerce. Congress's only law in the area delegated no power to the President to seize property to prevent work stoppages; Congress had rejected a proposal for such authority when it enacted the 1947 Taft-Hartley labor law. Writing for the majority, Justice Black concluded that the Commander-in-Chief power did not apply because even though "theatre of war be an expanding concept," it did not extend to the legislative authority to settle domestic labor disputes. "This is a job for the Nation's lawmakers, not for its military authorities."
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Youngstown Sheet & Tube Co. v. Sawyer
has become more influential due to Justice Jackson's concurrence rather than Justice Black's majority opinion. Jackson proposed a three-part test for presidential power: (i) in cases where the President acted pursuant to congressional authorization, "his authority is at its maximum;" (ii) when the President acts in the absence of any authorization in an area concurrently regulated by Congress, "there is a zone of twilight" where the outcome is uncertain, and the "actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law;" and (iii) when the President acts contrary to congressional wishes, "his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."
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Critics of the Presidency ever since have converted Justice Jackson's framework into a broad test for all exercises of executive power. Scholars such as Louis Henkin, Harold Koh, and Michael Glennon have generally relied on
Youngstown
to argue that Presidents must receive congressional authorization before making war, and that congressional policy takes precedence in foreign affairs.
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Youngstown
, however, stands for less. The majority reached the right outcome because the Constitution gives Congress, not the President, exclusive power over managing the domestic economy. Congress's power over raising and supporting the Army and Navy makes clear that the existence of a war does not give the President the constitutional authority to control the domestic activities to supply the military. As Commanders-in-Chief, Presidents have historically exercised sweeping powers on the battlefield to seize and destroy property, a principle that the Supreme Court did not challenge, nor did it question President Truman's decision to begin the Korean War in the first place. Rather, the Court held that the President's control of battlefield operations in Korea did not reach all the way back to the home front.

This conclusion respects the control each branch has over its own constitutional turf. Justice Black's approach is just as likely to support the opposite proposition that Congress cannot direct the President as to the conduct of battlefield operations. Justice Jackson's opinion even recognizes that at its lowest ebb, the President might still prevail if his actions fall within his constitutional powers. "I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force," Jackson wrote, "at least when turned against the outside world for the security of our society." It was only when those powers were exercised upon "a lawful economic struggle between industry and labor" that the President could not act without congressional authorization.
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President Dwight Eisenhower never had occasion to test
Youngstown
because, unlike his predecessor and successors, he never sent the American military into combat. That did not reflect any reluctance to exercise his powers in the realm of foreign affairs and national security. Using his enormous prestige gained from World War II, Ike had campaigned that he would go to Korea and end the war. He rejected the advice of his military commanders in the field, Secretary of State John Foster Dulles, and Republican congressional leaders to expand the war and fight for reunification. Instead, Eisenhower decided to force China to accept a basic return to the status quo by threatening the use of nuclear weapons.

In a February 1953 NSC meeting, Eisenhower raised the possibility of a nuclear attack on North Korean and Chinese forces.
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In a cabinet meeting that month, the President said that he would let the Chinese know "discreetly" that if progress toward a peace agreement were not made, the United States would "move decisively without inhibition in our use of weapons." The United States "would not be limited by any world-wide gentleman's agreement" on nomase.
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Eisenhower threatened a serious escalation, just as Truman had taken the fateful step of using the atomic bomb to end World War II, on his own. An armistice was reached in July; it was never sent to Congress for approval.

Like Truman, Eisenhower embarked on a wholesale reconsideration of American grand strategy, and like Truman, it was carried out in secret without congressional consultation or input. Eisenhower had campaigned on the rhetoric of liberating "the enslaved nations of the world," which everyone understood as referring to the Communist-controlled nations in Eastern Europe. Dulles attacked containment as a failed policy that would "keep us in the same place until we drop exhausted." The Republican platform rejected containment as "negative, futile and immoral" because it abandoned "countless human beings to a despotism and Godless terrorism."
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Once in office, however, Eisenhower pulled back from the campaign rhetoric and kept the fundamental goal of containment in place, but with different means. The United States would remain the protector of the free nations in Europe and Asia, but it would leave behind the universal opposition to any and all Communist offensives. Eisenhower and his advisors were concerned that NSC-68 placed too much strain on the economy, which would ultimately result in reduced standards of living, inflation, and excessive government regulation. The United States would not attempt to match Soviet conventional force advantages, but instead would play to its strengths -- nuclear weapons, naval and air superiority, covert action, economic and political alliances, and negotiations -- a strategy that came to be known as the "New Look."

Reliance on nuclear weapons rather than conventional ground troops allowed the Eisenhower administration to reduce defense spending from roughly 12-13 percent of GNP at the close of the Korean War to 9 percent when he left office. Approved by Eisenhower in October 1953 in the secret NSC 162/2, the New Look required that in a war with the Soviets or Chinese, "the United States will consider nuclear weapons to be as available for use as other munitions." Or, as Ike said privately to congressional leaders in late 1954, the plan was "to blow hell out of them in a hurry if they start anything."
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Eisenhower's brand of containment required the United States to take the initiative to keep the Soviets off balance. If the Truman administration's symmetric strategy emphasized a certain American response to every Soviet action, the key to Ike's asymmetric strategy was that the United States would act in ways and in places that the Soviets could not predict. Eisenhower emphasized covert action by the CIA, which had been created by the 1947 National Security Act, but whose operations the President directed with little congressional oversight. Under Truman, the CIA had focused primarily on intelligence collection; Eisenhower expanded its central mission to include covert action.

As the United States and the Soviet Union reached equilibrium in Western Europe and East Asia, superpower competition moved to the Third World, where covert action offered a cheap option to prevent the spread of communism. In 1953, the CIA overthrew the regime of Iranian prime minister Mohammed Mossadegh, who had nationalized Western-owned oil companies, and restored the Shah to the throne at minimal cost. In 1954, the CIA overthrew the socialist government of Jacobo Arbenz Guzman in Guatemala, but other attempts in Indonesia in 1958 and Cuba at the end of Ike's second term failed. Congress played no role in authorizing any of these operations and would not generally know of them until congressional investigations after Watergate.

An important element of the New Look was to expand the participants in the struggle against the Soviet Union. In addition to Truman's NATO and ANZUS (Australia, the U.S., and New Zealand) treaties, the Eisenhower administration reached security agreements in Southeast Asia (SEATO), Turkey, Iran, and Pakistan (CENTO), and bilateral agreements with South Korea and Taiwan. Dulles hoped to encircle the Soviets with a ring of American allies; Eisenhower thought that alliances could complement American military strength. Those nations could provide ground troops for any communist expansion in their regions, while the United States could provide naval, air, and strategic forces. Congress played little role in the initiation and negotiation of these security arrangements, but they could not become treaties without the Senate's advice and consent.

In those moments when American involvement called for military action, Eisenhower sometimes turned to Congress and sometimes did not. In two cases, Ike asked for congressional support for the use of force overseas. The first arose in August 1954, when Communist China shelled the tiny islands of Quemoy and Matsu, which were occupied by Chiang Kai-shek's nationalist army. Both Chiang's and Eisenhower's military advisors worried that the shelling was a prelude to an attack on Taiwan itself. In one NSC meeting, Eisenhower stated his belief that an offensive attack on China would require congressional authorization "since it would be a war. If congressional authorization were not obtained there would be logical grounds for impeachment." But when Eisenhower decided to seek support from Congress for the use of military force, he publicly left vague whether the Constitution required any legislation.

"Authority for some of the actions which might be required would be inherent in the Commander-in-Chief," Eisenhower told Congress in January 1955. "Until Congress can act, I would not hesitate, so far as my Constitutional powers extend, to take whatever emergency action might be forced upon us in order to protect the rights and security of the United States." So far, this was a traditional claim for inherent executive authority to use force abroad. Eisenhower had to make a nod toward the congressional wing of his party, which had criticized Truman for exactly the same claim. "However," he said, "a suitable Congressional resolution would clearly and publicly establish the authority of the President as Commander-in-Chief to employ the armed forces of this nation promptly and effectively." In describing the resolution, Eisenhower focused on its political effects, not its constitutional ones. "It would make clear the unified and serious intentions of our Government, our Congress, and our people."
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Eisenhower wanted to consult with Congress, but the primary purpose was political, rather than legal -- he wanted a show of unity against China and to avoid claims that he had shut Congress out.
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Congress passed the resolution overwhelmingly four days later.

The administration came close to using nuclear weapons to end the crisis. In March 1955, Eisenhower sent Dulles to publicly threaten the use of nuclear weapons in case of a war in the Taiwan straits. On March 16, Eisenhower used a press conference to confirm publicly that the United States would use tactical nuclear weapons in the event of war. "Yes, of course they would be used," he said. "I see no reason why they shouldn't be used just exactly as you would use a bullet or anything else." The Chairman of the Joint Chiefs of Staff and Dulles both recommended the bombing of the Chinese mainland with both conventional and nuclear weapons. In April, Chinese leaders publicly announced their desire for a negotiated settlement, and by August talks had begun.
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While the display of national unity may have had some effect, it is likely that the administration's threat of a nuclear attack made the deeper impression on the minds of China's leaders.

Eisenhower went to Congress again two years later, this time during a crisis in the Middle East. After Egyptian leader Gamal Nasser's nationalization of the Suez Canal, Britain, France, and Israel launched a plan to seize the Sinai Peninsula and the Canal in October 1956. Eisenhower immediately opposed their attack as a foolish effort to reestablish colonialism in the Middle East. The United States introduced a UN resolution calling for a cease-fire and imposed an oil embargo on Britain and France.

Khrushchev threatened Russian intervention, and Eisenhower had American forces mobilized in response; he wanted the British and French out, but not because of Russian arms. He asked Congress in January 1957 for a resolution of support for possible military force in the region. Again, Eisenhower sought the resolution more for political than constitutional reasons. "I deem it necessary to seek the cooperation of the Congress. Only with that cooperation can we give the reassurance needed to deter aggression," he told a joint session.

In a private session with congressional leaders, Eisenhower would only go so far as to say that the Constitution wanted the branches to work together, but he did not specify how. "Greater effect could be had from a consensus of Executive and Legislative opinion," he told them. "The Constitution assumes that our two branches of government should get along together."
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Congress obliged and passed the authorization.
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The following year, after Egypt and Syria joined to form the United Arab Republic, and pro-Nasser forces overthrew the government of Iraq, the President dispatched 14,000 troops to protect the pro-Western government of Lebanon.

Eisenhower spent his last years in office seeking an accommodation with the Soviet Union. Despite his rhetorical call for the liberation of the "captive nations," Ike did little when the Soviets brutally put down Hungary's 1956 revolution. He acted on his own to ascertain the Soviet Union's real strength while at the same time seeking negotiations for a settlement of outstanding issues. Eisenhower secretly ordered U-2 spy flights over the Soviet Union and approved the planning for what would become the failed Bay of Pigs operation against Castro. Secret flyovers discovered that despite Democrat claims of a "missile gap," the United States held an overwhelming superiority over the Soviet Union in strategic nuclear weapons. But the May 1960 downing of Gary Powers's U-2 sank the Paris summit meeting with Khrushchev, and the Bay of Pigs operation would fail miserably early in Kennedy's Presidency.