While the ruling facilitated the rise of the executive, other factors were at play as well. At the height of congressional “supremacy” in the late nineteenth century, Woodrow Wilson already noted the “greatly increased power and opportunity for constructive statesmanship given the President by the plunge into international politics” in the Spanish War that changed the “lodgment and exercise of power within [the] federal system.”25 Demands on the executive branch and strong leadership became more and more pressing as the United States inched onto the international stage, amid a growing net of international relations and organizations and ever-frequent crises and wars. A keen observer of American democracy, Alexis de Tocqueville had predicted the rise of the executive under precisely these circumstances: “If the life of the Union was constantly under threat … one would see the prestige of the executive increase … because of what was expected from it and what it did.”26 As it turned out, Congress itself supplied the executive with many of the national security instruments needed to boost and maintain its high standing.
Executive Ascendancy, Courtesy of Congress
Congress’s increasing deference to the executive branch after World War II must be interpreted in the context of the Cold War and the understanding that the United States needed to be prepared for a possible confrontation with the Soviet Union.27 In the face of the Soviet threat, Congress followed President Harry Truman’s lead in passing the National Security Act in 1947.28 The act altered the balance of power in favor of the executive branch, effectively furnishing it with the institutional capacities to carve out its paramount role in the national security realm.29 Apart from the armed services, the president’s arsenal now included the National Security Council (NSC), Central Intelligence Agency (CIA) and Department of Defense (DOD). Lodged in the Executive Office of the White House and designed to assist the president in the coordination of the interagency process, the creation of the NSC was of particular significance as it would be exempt from congressional scrutiny. The NSC took the lead in directing U.S. foreign policy after only two decades. Depending on his or her relationship with the chief executive, various national security advisors appointed by the president since the Kennedy administration have filled the role of “most important foreign policy aide to the president.”30
In another instance of tremendous foresight, Alexander Hamilton predicted this kind of executive capacity building: “Frequent war and constant apprehension, which requires a state of as constant preparation, will infallibly produce [standing armies]…. It is of the nature of war to increase the executive at the expense of the legislative authority.”31 While he could not have foreseen the extent of future technical advances, Hamilton’s prediction held true in the twentieth century especially, when nuclear weapons imposed new restraints on decision-making and the need to act quickly under single, decisive leadership. The commander in chief clause thus provided another stepping stone for “independent Presidential authority and initiative in foreign relations”32 and for settling the war powers question once and for all. Presidents have decided and ordered all military deployments abroad as well as the use of military force since Congress last declared war in 1941. Schlesinger concluded that “the imperial Presidency received its decisive impetus … from foreign policy; above all, from the capture by the presidency of the most vital of national decisions, the decision to go to war.”33 Judicial deference to executive discretion regarding war powers is generally viewed as indicative of this trend.34 The courts have treated the war powers controversy as a “political question” and refused to rule on it.
However, “the powers of the modern presidency … were not wrested by self-seeking chief executives in a serious of constitutional coups d’état,” but often established by means of congressional mandates and initiative.35 For example, when Congress delegated its constitutional authorities to organize the executive branch for significant periods between 1932 and 1984, the White House secured additional institutional resources, which over time “facilitate[d] the president’s expanded legislative pres-ence.”36 Similarly, lawmakers acquiesced in the proliferation of intelligence agencies.37
While most executive proposals were subject to congressional approval and legislative vetoes (until 1983), the scope of these new institutions was often contested, especially of those exempted from congressional oversight. As the most prominent example, the national security advisor’s more operational roles have been mired in controversy as his/her position is protected by executive privilege.38 Moreover, Congress certainly did not go along with every executive initiative. After Roosevelt created the Executive Office of the President in 1939, the growing uneasiness with executive expansion prompted fellow Democrat lawmaker Senator Richard Russell to object that the president was not vested “with one scintilla of authority to create by Executive Order an action agency of Government without the approval of the Congress.”39 Pursuant to the Russell amendment passed in 1944, Congress may deny funding for any institutions created by executive order unless appropriations are specifically authorized by Congress.
The controversies surrounding new executive positions, agencies, and departments indicate that lawmakers have a significant stake in these reorganization efforts as well. A byproduct of the symbiotic interbranch relationship, committee turf grows with every new executive agency, and lawmakers are certainly interested in gaining new appropriating and oversight powers. It is usually not a win-win situation for all lawmakers, however. Because any executive branch shake-up jeopardizes the committee turf of some lawmakers (as new committees may be formed), Congress’s executive reform record has been poor since the executive reorganization authority expired in 1984.40 On the rare occasions Congress manages to team up and formulate legal mandates for executive agencies, it is usually very vague about how these should be implemented—due to political compromise, congressional laymanship, or as part of a deliberate effort to ensure executive flexibility in the administration of laws.41 Calling statutory interpretation “one of the greatest of Executive powers,” William Howard Taft thus rejoiced: “Let any one make the laws of the country, if I can construe them.”42
Congressional Ways of Shaping U.S. Foreign Policy
Congress undoubtedly also has a say in the creation and implementation of policies and is able to protect some of the statutory spirit. Congressional committees direct and manage programs and activities by placing conditions on appropriations and procedures, as “an effective foreign policy requires … institutions, agencies, people and money, and Congress controls them all.”43 The Vietnam and Watergate fiascos triggered this kind of congressional involvement in the 1970s, epitomized by the War Powers Resolution of 1973. Congress further proceeded to impose restraints on executive spending and budget authority, arms sales, as well as reporting requirements on executive agreements, and confirmation of presidential aides.44 As a prominent example of lawmakers’ tactics “to use procedure to structure the choices the executive branch makes,”45 new institutionalists count the Hughes-Ryan Amendment of 1974, which required the CIA to report on all covert operations to the new select intelligence committees.46 While the Iran/Contra affair is generally viewed as testimony for failed restraints imposed by Congress, Loch Johnson argued that “the very requirement of reporting on these operations serves as a strong deterrent against madcap proposals like those that surfaced within the intelligence bureaucracy more easily in the past.”47 In 1987, Assistant CIA Director Robert Gates described his agency as “involuntarily poised equidistant between the executive and legislative branches.”48
Others are more skeptical of Congress’s ability to hold agencies accountable and correct statutory (mis)interpretations, noting that “given the size and reach of federal programs … the legislature’s capacity to overlook exceeds its ability to oversee.”49 Cosy relationships with executive departments further impede lawmakers’ oversight duties.50 Worse, Congress is necessarily