10. The American Presidency: Critical Episodes in Its Growth, Part II (video)

0:00Well, first of all, let me just say thank you very much for this week and thank you to the Mises Institute for having me and to Lew Rockwell and to everyone here. It's been a pleasure for me to renew some old acquaintances and to meet some new folks. You know, always wonderful to meet the great folks who are associated with the Institute. It does such important work. It's my favorite place to be, basically, in the world. Okay, well, returning to where we left off, I'm going to keep talking about presidents until the end. And this morning, my order of business was to say a few general words about the presidency, then to talk about it, give an example, give Theodore Roosevelt as an example of somebody who radically transformed the office, and then finally to discuss the evolution of presidential war powers, and what the original intent was and what has actually happened over the course of time.

1:00And among other things, I mentioned that, you know, explaining the president was thought to have largely, I don't want to say entirely a ceremonial office because he does have some important functions, but certainly much more so than the presidency that we have now. And that's, we can see that also, by the way, in the very fact that although the president in the Constitution does have the authority to veto legislation. Even that in early American history was viewed as a questionable exercise of presidential power. It was strictly legal, of course, but at one point the Whig Party actually, in effect, announced to people that if they elected the Whig candidate that he would not exercise the veto.

1:47So even that was viewed as questionable. The legislature should be deferred to. Now going over the question of presidential war powers, my intent was to show that the constitutional framework was one in which the overwhelming bulk of responsibility for foreign policy would reside in the legislative branch. And we can see that through the division of tasks pertaining to foreign policy. The vast bulk of them are either in Congress's court or jointly shared by Congress and the with the president having as exclusive powers only the power to receive ambassadors and to act as commander-in-chief carrying on a war declared by Congress. And this is the consensus, overwhelming consensus, that this is, by the people at the time, this was what the intent was.

2:38And then I tried to go through some early examples in American history of the use of presidential war power, are particularly early examples that have at times been cited as forerunners of more modern examples of the exercise of presidential war power, such as the Quasi-War with France or the struggle against the Barbary Pirates, both of which I tried to show were in fact authorized by statute. In fact, a famous scholar of presidential war powers, on the particular point of the quasi-war with France, says that it's altogether false to argue that this was just a presidentially initiated, undeclared war. Again, continuing with Wormuth, he says, The fact is that President John Adams took absolutely no independent action.

3:27Congress passed a series of acts that amounted, so the Supreme Court said, to a declaration of imperfect war, and Adams complied with these statutes. Okay, well, so now we'll just continue from there. I had left off with a point pertaining to the Monroe Doctrine, and now there are still other things to discuss. The Mexican War is 1846-48 and on the eve of that war, there were a number of grievances that Mexico had against the United States and a number of unresolved issues that the United States had with Mexico involving unpaid debts to American citizens, involving the desire on the part of the U.S. administration The Mexican government also had a standing grievance, of course, over the issue of Texas. Texas had declared its independence as early as 1836, and the Mexican government was reluctant to part with territory.

4:38The Mexican government also had a standing grievance, of course, over the issue of Texas. Texas had declared its independence as early as 1836. Mexico had initially recognized that independence, but really only under duress. Almost literally, the Mexican ruler Santa Ana, in effect, practically had a knife to his throat at the hands of Texas independence fighters who said to him, And he said to him, do you recognize Texas independence? And of course he said yes, but then as soon as he got away, he said, of course I don't recognize it. So for nine years, the Republic of Texas considered itself to be an independent republic, but Mexico did not recognize that independence. So it was only in 1845 that you got the United States annexing Texas.

5:25Texas had applied for admission to the Union several times and been denied each time. by Andrew Jackson and I believe Van Buren and then initially there was an attempt by John Tyler that was not successful but then as practically the last thing that John Tyler did before he left office was that he managed by joint resolution to get Texas annexed. Tyler was obsessed, it seems, with securing a place for himself in history. And he thought that the annexation of Texas would do just that, so he managed to do that. And that was in the wake of the election of James Polk. Since Polk had been in favor of Texas annexation, Tyler could in effect go to Congress now, and he wouldn't have to say it in so many words, but we've now seen through a presidential election The Mexican government considers this yet another insult, but more specifically there was a dispute over what the precise southern boundary of Texas was.

6:33Was it the Rio Grande River that it is today, of course, or was it the Nueces River, which was much further north? So there was a disputed amount of territory, regardless of the overall disposition of Texas, and it's having declared independence and whether Mexico considered that legitimate or not, there was the more specific question of what is the southern border of Texas, even if it is a fait accompli that it's now part of the U.S., which border is the legitimate one. So there was a disputed area. There was an attempt by Polk's administration to resolve these outstanding issues through negotiation by sending John Slidell, a diplomat, down to Mexico to discuss them. But the Slidell mission was a complete failure. In effect, no Mexican government would really dare to meet with an American official at that point for fear of being overthrown by an angry population.

7:22So Slidell had to return empty-handed. And it seems quite clear the Polk administration wanted the Mexican government or Mexican soldiers to initiate war, to carry out an act of aggression, so that the United States decision to counter that aggression would be perceived as an act of self-defense. I know this is a very familiar story, of course. Well, Polk didn't have to worry about it, because apparently at a cabinet meeting there was talk in the White House of, you know, what can we do to manipulate the Mexicans into firing the first shot, but they found out that the Mexicans had already fired a and President Polk said to the country that Mexico has shed American blood upon American soil.

8:14Well, it so happens that this was the term of office in which Abraham Lincoln was in the Congress. And Lincoln, during his term, introduced something called the spot resolution into Congress. The spot resolution consisted of a demand that Polk clarify for the country the exact spot on which American forces had been fired upon because Lincoln and others suspected that in fact what had happened was that American troops had been placed not along the Nueces River but in fact in the disputed area in which it was if not a certainty then a very great likelihood that they could provoke an attack because Mexico did not acknowledge So what was the spot Lincoln wanted to know? Where were those shots fired on Americans?

9:07Well, eventually it became clear that the shot was fired in the disputed territory, and that Polk, in effect, had sent troops into territory where it must have been foreseen that the consequence would be at least some kind of battle, if not war. Well, Polk, in effect, said to Congress, war exists. But nevertheless, Congress, two days later, officially declared war. But in 1848, the war ends in 1848, Congress voted 85 to 81 to censure President Polk and declared that the war had been and quote, unnecessarily and unconstitutionally begun by the President of the United States because of the results of that spot resolution.

9:54Now that is significant because again there are people in American history who aren't afraid to say obvious things to a president and who censure presidents for things other than things we've seen them be censured for in recent years. Now following the Mexican War, we have an incident of, to my mind, rather great significance in Nicaragua in the 1850s. Now there's nothing in the Constitution that gives the president the authority to protect American lives and property abroad. But on many occasions, presidents have exercised authority for that purpose. And they haven't typically cited, you know, they haven't said that, you know, Congress has authorized me to do this.

10:44In 1854, they claimed that there are certain executive powers that are implied in the very nature of the executive, and one of those powers is the power to protect American lives and property, including business property, abroad. Well, one example of a president carrying out this power occurs in 1854 in the Nicaraguan port of Grey Town, which is no longer called Grey Town, it's called San Juan del Norte, but at that time it was called Grey Town. Now, an American ship was ordered to that port because local authorities in the town of Grey Town, which is a small town, had, number one, insulted an American diplomat down there and, number two, had carried out really quite inexcusable acts of aggression against American property.

11:34They had destroyed some buildings of an American firm, for example. and all these complaints about property losses and this affront to an American diplomat led to this call for an American ship to go to this port and in effect demand some kind of restitution from the locals. Well, when the American commander decided that these local folks had not made appropriate amends for their misdeeds, So he went ahead and bombarded the town, and he bombarded it for 45 minutes, then he'd stop and wait to see, are your people going to give in? No. Then he bombarded it again. Then he'd wait a while. Are your people going to give in? No. Then he bombarded it again. The people, since they'd been warned, the people themselves had been evacuated, so thankfully no one was killed.

12:25But when finally, after several times of pausing to see if anyone was going to make any kind of official surrender or any kind of official statement that they would make amends now, after all of that came to naught, American forces finally went ashore and burned down every remaining building in the whole town. Now, President Franklin Pierce reported this to Congress And he spoke very highly of what the American commander had done in this incident. He said, the commander warned them by a public proclamation that if they did not give satisfaction within a time specified, he would bombard the town. By this procedure, he afforded them opportunity to provide for their personal safety.

13:14To those also who desired to avoid loss of property and the punishment about to be inflicted on the offending town, he furnished the means of removing their effects to boats of his own ship and of a steamer which he procured and tendered to them for that purpose. So you see, that's not so bad. You can bombard the town as long as you evacuate the people and three or four of their belongings. Well, later on, a resident of Grey Town tried to sue for damages to his property during the bombardment. But in 1860, a Federal Circuit Court declared that the commander's actions were in fact defensible and they were an extension of the executive branch's authority to protect lives and property in foreign countries.

14:01The court said,

14:23to be effectual or of any avail may not infrequently require the most prompt and decided action. So that if American property is to be protected, then not infrequently that may require the most prompt and decided action. So in other words, the destruction of Grey Town. Now what's interesting is that James Buchanan at that time was an American diplomat who was speaking to the British government about this incident and he assured them, he was He's absolutely certain that this must just have been the action of a rogue commander and that the U.S. government would certainly disavow this behavior. But then he found out from the Secretary of State that no, in fact, the U.S. government was going to defend what this commander had done to that town. And so poor James Buchanan has to turn around to the British government and say, oh, all right, well, remember what I said yesterday?

15:13Forget that. We are defending this position. So it's sort of an embarrassing situation for poor Buchanan to be in. Well, once James Buchanan himself became president, you know, was inaugurated in 1857, he himself spoke about what had happened at Grey Town and what exactly the powers of the president were in regard to the protection of American property abroad. And he said that the executive branch, quote, in its intercourse with foreign nations is limited to the employment of diplomacy alone. When this fails, it can proceed no further. You would want to say that the President cannot legitimately resort to force without the direct authority of Congress.