WEBVTT NOTE 10. The American Presidency: Critical Episodes in Its Growth, Part II (video) 1 00:00:00.000 --> 00:00:05.000 Well, first of all, let me just say thank you very much for this week 2 00:00:05.000 --> 00:00:10.000 and thank you to the Mises Institute for having me and to Lew Rockwell and to everyone here. 3 00:00:10.000 --> 00:00:15.000 It's been a pleasure for me to renew some old acquaintances and to meet some new folks. 4 00:00:15.000 --> 00:00:19.000 You know, always wonderful to meet the great folks who are associated with the Institute. 5 00:00:19.000 --> 00:00:26.000 It does such important work. It's my favorite place to be, basically, in the world. 6 00:00:26.000 --> 00:00:35.000 Okay, well, returning to where we left off, I'm going to keep talking about presidents until the end. 7 00:00:35.000 --> 00:00:42.000 And this morning, my order of business was to say a few general words about the presidency, 8 00:00:42.000 --> 00:00:50.000 then to talk about it, give an example, give Theodore Roosevelt as an example of somebody who radically transformed the office, 9 00:00:50.000 --> 00:00:54.000 and then finally to discuss the evolution of presidential war powers, 10 00:00:54.000 --> 00:01:00.720 and what the original intent was and what has actually happened over the course of time. 11 00:01:00.720 --> 00:01:07.460 And among other things, I mentioned that, you know, explaining the president was thought 12 00:01:07.460 --> 00:01:13.440 to have largely, I don't want to say entirely a ceremonial office because he does have some 13 00:01:13.440 --> 00:01:19.240 important functions, but certainly much more so than the presidency that we have now. 14 00:01:19.240 --> 00:01:23.440 And that's, we can see that also, by the way, in the very fact that although the president 15 00:01:23.440 --> 00:01:29.360 in the Constitution does have the authority to veto legislation. 16 00:01:29.360 --> 00:01:34.080 Even that in early American history was viewed as a questionable exercise of presidential 17 00:01:34.080 --> 00:01:35.080 power. 18 00:01:35.080 --> 00:01:40.960 It was strictly legal, of course, but at one point the Whig Party actually, in effect, 19 00:01:40.960 --> 00:01:46.280 announced to people that if they elected the Whig candidate that he would not exercise 20 00:01:46.280 --> 00:01:47.280 the veto. 21 00:01:47.280 --> 00:01:49.460 So even that was viewed as questionable. 22 00:01:49.460 --> 00:01:53.040 The legislature should be deferred to. 23 00:01:53.040 --> 00:01:58.560 Now going over the question of presidential war powers, my intent was to show that the 24 00:01:58.560 --> 00:02:02.600 constitutional framework was one in which the overwhelming bulk of responsibility for 25 00:02:02.600 --> 00:02:08.200 foreign policy would reside in the legislative branch. 26 00:02:08.200 --> 00:02:12.440 And we can see that through the division of tasks pertaining to foreign policy. 27 00:02:12.440 --> 00:02:19.120 The vast bulk of them are either in Congress's court or jointly shared by Congress and the 28 00:02:19.120 --> 00:02:24.120 with the president having as exclusive powers only the power to receive ambassadors 29 00:02:24.120 --> 00:02:30.120 and to act as commander-in-chief carrying on a war declared by Congress. 30 00:02:30.120 --> 00:02:35.120 And this is the consensus, overwhelming consensus, that this is, 31 00:02:35.120 --> 00:02:38.120 by the people at the time, this was what the intent was. 32 00:02:38.120 --> 00:02:44.120 And then I tried to go through some early examples in American history of the use of presidential war power, 33 00:02:44.120 --> 00:03:05.120 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. 34 00:03:05.120 --> 00:03:19.120 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. 35 00:03:19.120 --> 00:03:23.120 Again, continuing with Wormuth, he says, 36 00:03:23.120 --> 00:03:27.520 The fact is that President John Adams took absolutely no independent action. 37 00:03:27.520 --> 00:03:37.160 Congress passed a series of acts that amounted, so the Supreme Court said, to a declaration of imperfect war, and Adams complied with these statutes. 38 00:03:37.160 --> 00:03:40.520 Okay, well, so now we'll just continue from there. 39 00:03:40.520 --> 00:03:48.020 I had left off with a point pertaining to the Monroe Doctrine, and now there are still other things to discuss. 40 00:03:48.020 --> 00:04:18.020 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 41 00:04:18.020 --> 00:04:38.020 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. 42 00:04:38.020 --> 00:04:43.020 The Mexican government also had a standing grievance, of course, over the issue of Texas. 43 00:04:43.020 --> 00:04:48.020 Texas had declared its independence as early as 1836. 44 00:04:48.020 --> 00:04:53.020 Mexico had initially recognized that independence, but really only under duress. 45 00:04:53.020 --> 00:04:59.020 Almost literally, the Mexican ruler Santa Ana, in effect, practically had a knife to his throat 46 00:04:59.020 --> 00:05:03.020 at the hands of Texas independence fighters who said to him, 47 00:05:03.020 --> 00:05:05.420 And he said to him, do you recognize Texas independence? 48 00:05:05.420 --> 00:05:08.760 And of course he said yes, but then as soon as he got away, 49 00:05:08.760 --> 00:05:10.680 he said, of course I don't recognize it. 50 00:05:10.680 --> 00:05:17.320 So for nine years, the Republic of Texas considered itself to be an independent republic, 51 00:05:17.320 --> 00:05:20.160 but Mexico did not recognize that independence. 52 00:05:20.160 --> 00:05:25.620 So it was only in 1845 that you got the United States annexing Texas. 53 00:05:25.620 --> 00:05:31.260 Texas had applied for admission to the Union several times and been denied each time. 54 00:05:31.260 --> 00:05:49.260 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. 55 00:05:49.260 --> 00:05:56.260 Tyler was obsessed, it seems, with securing a place for himself in history. 56 00:05:56.260 --> 00:06:01.260 And he thought that the annexation of Texas would do just that, so he managed to do that. 57 00:06:01.260 --> 00:06:04.260 And that was in the wake of the election of James Polk. 58 00:06:04.260 --> 00:06:09.260 Since Polk had been in favor of Texas annexation, Tyler could in effect go to Congress now, 59 00:06:09.260 --> 00:06:14.260 and he wouldn't have to say it in so many words, but we've now seen through a presidential election 60 00:06:14.260 --> 00:06:33.260 The Mexican government considers this yet another insult, but more specifically there was a dispute over what the precise southern boundary of Texas was. 61 00:06:33.260 --> 00:06:41.260 Was it the Rio Grande River that it is today, of course, or was it the Nueces River, which was much further north? 62 00:06:41.260 --> 00:06:46.660 So there was a disputed amount of territory, regardless of the overall disposition of Texas, 63 00:06:46.660 --> 00:06:49.440 and it's having declared independence and whether Mexico considered that legitimate 64 00:06:49.440 --> 00:06:54.180 or not, there was the more specific question of what is the southern border of Texas, even 65 00:06:54.180 --> 00:06:58.100 if it is a fait accompli that it's now part of the U.S., which border is the legitimate 66 00:06:58.100 --> 00:06:59.100 one. 67 00:06:59.100 --> 00:07:02.220 So there was a disputed area. 68 00:07:02.220 --> 00:07:05.840 There was an attempt by Polk's administration to resolve these outstanding issues through 69 00:07:05.840 --> 00:07:12.080 negotiation by sending John Slidell, a diplomat, down to Mexico to discuss them. 70 00:07:12.080 --> 00:07:14.680 But the Slidell mission was a complete failure. 71 00:07:14.680 --> 00:07:19.080 In effect, no Mexican government would really dare to meet with an American official at 72 00:07:19.080 --> 00:07:22.980 that point for fear of being overthrown by an angry population. 73 00:07:22.980 --> 00:07:26.960 So Slidell had to return empty-handed. 74 00:07:26.960 --> 00:07:34.480 And it seems quite clear the Polk administration wanted the Mexican government or Mexican soldiers 75 00:07:34.480 --> 00:07:41.400 to initiate war, to carry out an act of aggression, so that the United States decision to counter 76 00:07:41.400 --> 00:07:44.600 that aggression would be perceived as an act of self-defense. 77 00:07:44.600 --> 00:07:48.040 I know this is a very familiar story, of course. 78 00:07:48.040 --> 00:07:53.240 Well, Polk didn't have to worry about it, because apparently at a cabinet meeting there 79 00:07:53.240 --> 00:07:58.600 was talk in the White House of, you know, what can we do to manipulate the Mexicans 80 00:07:58.600 --> 00:08:01.760 into firing the first shot, but they found out that the Mexicans had already fired a 81 00:08:01.760 --> 00:08:14.760 and President Polk said to the country that Mexico has shed American blood upon American soil. 82 00:08:14.760 --> 00:08:23.760 Well, it so happens that this was the term of office in which Abraham Lincoln was in the Congress. 83 00:08:23.760 --> 00:08:28.760 And Lincoln, during his term, introduced something called the spot resolution into Congress. 84 00:08:28.760 --> 00:08:58.760 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 85 00:08:58.760 --> 00:09:07.760 So what was the spot Lincoln wanted to know? Where were those shots fired on Americans? 86 00:09:07.760 --> 00:09:13.760 Well, eventually it became clear that the shot was fired in the disputed territory, 87 00:09:13.760 --> 00:09:19.760 and that Polk, in effect, had sent troops into territory where it must have been foreseen 88 00:09:19.760 --> 00:09:24.760 that the consequence would be at least some kind of battle, if not war. 89 00:09:24.760 --> 00:09:34.760 Well, Polk, in effect, said to Congress, war exists. But nevertheless, Congress, two days later, officially declared war. 90 00:09:34.760 --> 00:09:46.760 But in 1848, the war ends in 1848, Congress voted 85 to 81 to censure President Polk and declared that the war had been 91 00:09:46.760 --> 00:09:52.200 and quote, unnecessarily and unconstitutionally begun by the President of the United States 92 00:09:52.200 --> 00:09:54.920 because of the results of that spot resolution. 93 00:09:54.920 --> 00:10:00.480 Now that is significant because again there are people in American history who aren't 94 00:10:00.480 --> 00:10:06.960 afraid to say obvious things to a president and who censure presidents for things other 95 00:10:06.960 --> 00:10:15.000 than things we've seen them be censured for in recent years. 96 00:10:15.000 --> 00:10:20.520 Now following the Mexican War, we have an incident of, to my mind, rather great significance 97 00:10:20.520 --> 00:10:23.680 in Nicaragua in the 1850s. 98 00:10:23.680 --> 00:10:27.320 Now there's nothing in the Constitution that gives the president the authority to protect 99 00:10:27.320 --> 00:10:31.080 American lives and property abroad. 100 00:10:31.080 --> 00:10:37.440 But on many occasions, presidents have exercised authority for that purpose. 101 00:10:37.440 --> 00:10:42.440 And they haven't typically cited, you know, they haven't said that, you know, Congress 102 00:10:42.440 --> 00:10:44.720 has authorized me to do this. 103 00:10:44.720 --> 00:10:57.720 In 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. 104 00:10:57.720 --> 00:11:12.720 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. 105 00:11:12.720 --> 00:11:20.720 Now, an American ship was ordered to that port because local authorities in the town of Grey Town, which is a small town, 106 00:11:20.720 --> 00:11:34.720 had, number one, insulted an American diplomat down there and, number two, had carried out really quite inexcusable acts of aggression against American property. 107 00:11:34.720 --> 00:11:38.720 They had destroyed some buildings of an American firm, for example. 108 00:11:38.720 --> 00:11:44.720 and all these complaints about property losses and this affront to an American diplomat 109 00:11:44.720 --> 00:11:49.720 led to this call for an American ship to go to this port 110 00:11:49.720 --> 00:11:55.720 and in effect demand some kind of restitution from the locals. 111 00:11:55.720 --> 00:12:00.720 Well, when the American commander decided that these local folks 112 00:12:00.720 --> 00:12:04.720 had not made appropriate amends for their misdeeds, 113 00:12:04.720 --> 00:12:18.720 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. 114 00:12:18.720 --> 00:12:25.720 The people, since they'd been warned, the people themselves had been evacuated, so thankfully no one was killed. 115 00:12:25.720 --> 00:12:33.720 But when finally, after several times of pausing to see if anyone was going to make any kind of official surrender 116 00:12:33.720 --> 00:12:39.720 or any kind of official statement that they would make amends now, after all of that came to naught, 117 00:12:39.720 --> 00:12:47.720 American forces finally went ashore and burned down every remaining building in the whole town. 118 00:12:47.720 --> 00:12:54.720 Now, President Franklin Pierce reported this to Congress 119 00:12:54.720 --> 00:12:59.320 And he spoke very highly of what the American commander had done in this incident. 120 00:12:59.320 --> 00:13:03.220 He said, the commander warned them by a public proclamation 121 00:13:03.220 --> 00:13:09.020 that if they did not give satisfaction within a time specified, he would bombard the town. 122 00:13:09.020 --> 00:13:14.120 By this procedure, he afforded them opportunity to provide for their personal safety. 123 00:13:14.120 --> 00:13:16.820 To those also who desired to avoid loss of property 124 00:13:16.820 --> 00:13:20.120 and the punishment about to be inflicted on the offending town, 125 00:13:20.120 --> 00:13:24.220 he furnished the means of removing their effects to boats of his own ship 126 00:13:24.220 --> 00:13:29.220 and of a steamer which he procured and tendered to them for that purpose. 127 00:13:29.220 --> 00:13:32.220 So you see, that's not so bad. 128 00:13:32.220 --> 00:13:38.220 You can bombard the town as long as you evacuate the people and three or four of their belongings. 129 00:13:38.220 --> 00:13:45.220 Well, later on, a resident of Grey Town tried to sue for damages to his property during the bombardment. 130 00:13:45.220 --> 00:13:53.220 But in 1860, a Federal Circuit Court declared that the commander's actions were in fact defensible 131 00:13:53.220 --> 00:14:01.220 and they were an extension of the executive branch's authority to protect lives and property in foreign countries. 132 00:14:01.220 --> 00:14:03.220 The court said, 133 00:14:23.220 --> 00:14:29.500 to be effectual or of any avail may not infrequently require the most prompt and decided action. 134 00:14:29.500 --> 00:14:34.340 So that if American property is to be protected, then not infrequently that may require the 135 00:14:34.340 --> 00:14:36.280 most prompt and decided action. 136 00:14:36.280 --> 00:14:40.540 So in other words, the destruction of Grey Town. 137 00:14:40.540 --> 00:14:46.280 Now what's interesting is that James Buchanan at that time was an American diplomat who 138 00:14:46.280 --> 00:14:51.240 was speaking to the British government about this incident and he assured them, he was 139 00:14:51.240 --> 00:14:56.040 He's absolutely certain that this must just have been the action of a rogue commander 140 00:14:56.040 --> 00:15:00.880 and that the U.S. government would certainly disavow this behavior. 141 00:15:00.880 --> 00:15:04.280 But then he found out from the Secretary of State that no, in fact, the U.S. government 142 00:15:04.280 --> 00:15:08.020 was going to defend what this commander had done to that town. 143 00:15:08.020 --> 00:15:11.560 And so poor James Buchanan has to turn around to the British government and say, oh, all 144 00:15:11.560 --> 00:15:13.320 right, well, remember what I said yesterday? 145 00:15:13.320 --> 00:15:14.560 Forget that. 146 00:15:14.560 --> 00:15:16.560 We are defending this position. 147 00:15:16.560 --> 00:15:20.000 So it's sort of an embarrassing situation for poor Buchanan to be in. 148 00:15:20.000 --> 00:15:28.360 Well, once James Buchanan himself became president, you know, was inaugurated in 1857, he himself 149 00:15:28.360 --> 00:15:34.320 spoke about what had happened at Grey Town and what exactly the powers of the president 150 00:15:34.320 --> 00:15:38.320 were in regard to the protection of American property abroad. 151 00:15:38.320 --> 00:15:44.000 And he said that the executive branch, quote, in its intercourse with foreign nations is 152 00:15:44.000 --> 00:15:47.040 limited to the employment of diplomacy alone. 153 00:15:47.040 --> 00:15:50.200 When this fails, it can proceed no further. 154 00:15:50.200 --> 00:15:54.560 You would want to say that the President cannot legitimately resort to force without the 155 00:15:54.560 --> 00:15:56.440 direct authority of Congress.