Crisis And Command Part 6

Truman also used his power of removal to dramatic effect to reinforce his authority over the conduct of the war. After Chinese troops attacked and drove American forces back below the thirty-eighth parallel, Truman decided that the United States would no longer pursue reunification. General MacArthur publicly criticized the decision and called for a widening of the war into China itself, one of the most direct challenges to civilian control of the military since the Civil War. On April 11, 1951, Truman fired him. MacArthur had the support of 69 percent of the public and of the Congress, in which Republican gains in the 1950 midterm elections had reduced the Democratic majority in the Senate from 12 to 2. Truman later denied that he had demonstrated steadfastness in the face of public criticism. "Courage didn't have anything to do with it," he said. "General MacArthur was insubordinate, and I fired him. That's all there was to it."12 More critical to America's long-term security than the Korean conflict was the defense of Europe. Even before containment had become official U.S. policy, Truman had taken steps to resist Soviet moves in Germany. In June 1948, the Russians closed off all ground and water transportation into and out of Berlin. Stalin wanted to apply pressure to the United States and its allies, who had decided to unify their sectors of Germany into a sovereign state. While he rejected proposals to send an armed convoy through Russian-occupied East Germany, Truman approved an air bridge that would lift supplies to the beleaguered city. The flights of military transports through East German airs.p.a.ce could have triggered a direct superpower conflict if the Russians had decided to force them down.

Truman signaled his determination by deploying two squadrons of B-29 bombers to Germany, the planes that had dropped the atomic bombs on j.a.pan (though unbeknownst to the Russians, they were not equipped with nuclear weapons). After a year and a half, the Soviets backed down and restored access to West Berlin. Truman never sought congressional approval for the airlift, nor for the fundamental political decision that gave rise to the dispute in the first place: to turn the Allied sectors of Germany into a new sovereign state firmly attached to the West. Truman gave further guarantees, again without congressional consent, to Western Europe by announcing that American occupation troops would remain in Germany -- effectively creating a trip wire that would trigger an American defense of any Russian invasion.13 Once the Korean War began, Truman followed the logic of NSC-68 in Europe. Korea was just the manifestation, in American planners' eyes, of a general Communist effort to test the West after the loss of the U.S. monopoly on nuclear weapons. Truman and his advisors decided that the West would have to balance the Soviet advantage in conventional forces, and quickly. Western Europe would no longer be defended by a small force backed up with the implicit threat of nuclear retaliation for a Soviet invasion. In 1951, Truman deployed four combat divisions to Europe to signal American commitment and to rea.s.sure Europeans that the restoration of sovereignty to West Germany would be carefully watched. He also approved the rearming of Germany within the framework of NATO under the command of an American general. Military spending increased dramatically to support the new strategy. At the outset of the Korean War, military spending amounted to 4.4 percent of gross national product, but by the end of the Truman administration, the defense budget reached 13.2 percent of GNP, with only a small part devoted to the Korean fighting.14 Republican members of Congress loudly attacked Truman's unilateral deployment of troops to Europe. In January 1951, a member of the House introduced a resolution that prohibited sending troops abroad without prior congressional authorization. Senator Taft declared that Truman's decision to defend Korea without a declaration of war had "simply usurped authority" in violation of the Const.i.tution, and his European deployment similarly lacked authority. Truman defended his decision "under the President's const.i.tutional powers as Commander in Chief of the Armed Forces" and declared that he did not legally need the approval of Congress. "Not only has the President the authority to use the Armed Forces in carrying out the broad foreign policy of the United States and implementing treaties," Acheson testified before Congress, "but it is equally clear that this authority may not be interfered with by the Congress in the exercise of powers which it has under the Const.i.tution."15 Scholars such as Henry Steele Commager and Arthur M. Schlesinger attacked Taft, while Edward Corwin criticized Truman. The Senate, however, pa.s.sed nothing more than a non-binding resolution demanding congressional approval before any additional troops were sent abroad. The deployments went forward, and Presidents since have decided the location of American forces in Europe without any specific congressional authorization. Scholars such as Henry Steele Commager and Arthur M. Schlesinger attacked Taft, while Edward Corwin criticized Truman. The Senate, however, pa.s.sed nothing more than a non-binding resolution demanding congressional approval before any additional troops were sent abroad. The deployments went forward, and Presidents since have decided the location of American forces in Europe without any specific congressional authorization.

Truman made the fundamental decisions that gave American strategy its basic shape for decades to come. To say, as some scholars do, that Truman ruled as an imperial President is to confuse politics and const.i.tutional law. Congress could have blocked many of Truman's initiatives if only it had chosen to exercise the powers at its disposal. If it had disagreed with the Truman Doctrine's a.s.sistance to Greece and Turkey, it could have refused to appropriate any aid. If Congress had wanted to withdraw from Europe, as it had during the interwar years, the Senate could have rejected the NATO treaty and Congress could have refused to fund the Marshall Plan. Even if Truman had based troops in Western Europe, Congress could have cut off their funding and reduced the size of the military. Truman may have been able to send the first troops to Korea, but Congress could have ended the conflict by refusing to pay for the war. Congress could even have blocked the containment policy, which called for active American engagement throughout the world. Truman's symmetric version of containment depended on large, permanent increases in military spending as a share of a fast-growing economy. Only Congress could appropriate the funds needed to make containment a reality.

The Supreme Court imposed limits on the scope of presidential power in wartime, but in a way that has been dramatically over-read in the decades since. In the spring of 1951, at the height of the Korean War, a labor strike threatened to close production at most of the nation's steel mills. Following a similar action by FDR in World War II to end a strike at a critical aviation plant, Truman ordered the Department of Commerce to take possession of the mills because of their importance for arms production. The owners sued on the ground that the President was exercising lawmaking authority without delegation from Congress. Truman argued that the President's Commander-in-Chief and Chief Executive powers allowed him to take action to avert a national catastrophe during wartime. It would be "unthinkable," he said in a press conference, to allow a strike to undermine "our efforts to support our armed forces and to protect our national security."

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."16 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 const.i.tutional powers minus any const.i.tutional powers of Congress over the matter." 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 const.i.tutional powers minus any const.i.tutional powers of Congress over the matter."17 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 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 Youngstown to argue that Presidents must receive congressional authorization before making war, and that congressional policy takes precedence in foreign affairs. to argue that Presidents must receive congressional authorization before making war, and that congressional policy takes precedence in foreign affairs.18 Youngstown, however, stands for less. The majority reached the right outcome because the Const.i.tution 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 const.i.tutional 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 const.i.tutional 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 const.i.tutional powers. "I should indulge the widest lat.i.tude 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.19 President Dwight Eisenhower never had occasion to test Youngstown 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. 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.20 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. 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.21Eisenhower 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 G.o.dless terrorism."22 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 h.e.l.l out of them in a hurry if they start anything."23 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 compet.i.tion 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 partic.i.p.ants 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 sh.e.l.led 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 sh.e.l.ling 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 Const.i.tution 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 Const.i.tutional 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 const.i.tutional ones. "It would make clear the unified and serious intentions of our Government, our Congress, and our people."24 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. 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.25Congress pa.s.sed 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.26 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. 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 Na.s.ser's nationalization of the Suez Ca.n.a.l, Britain, France, and Israel launched a plan to seize the Sinai Peninsula and the Ca.n.a.l 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 const.i.tutional reasons. "I deem it necessary to seek the cooperation of the Congress. Only with that cooperation can we give the rea.s.surance 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 Const.i.tution 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 Const.i.tution a.s.sumes that our two branches of government should get along together."27 Congress obliged and pa.s.sed the authorization. Congress obliged and pa.s.sed the authorization.28 The following year, after Egypt and Syria joined to form the United Arab Republic, and pro-Na.s.ser forces overthrew the government of Iraq, the President dispatched 14,000 troops to protect the pro-Western government of Lebanon. The following year, after Egypt and Syria joined to form the United Arab Republic, and pro-Na.s.ser 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.

Despite these setbacks, Eisenhower's management of foreign policy and national security has won him high marks. In the years immediately after he left office, scholars ranked him as a below-average President, struck as they were by the contrast between Kennedy's image of energy and youth and Eisenhower's b.u.mbling public performances and moderate policies. History has since revised its opinion. With the opening of his papers, the image of Eisenhower as a detached, grandfatherly chairman of the board has given way to a "hidden-hand" Presidency in the words of Fred Greenstein.29Eisenhower was a shrewd politician who was fully in command of his administration and made almost all of the important policy decisions himself. Strategists credit Ike with pursuing the most sensible version of containment, one that matched the nation's ends with limited means. He achieved deterrence without actually going to war.

The exercise of presidential power did not become necessary only in crises, nor did it exert an inevitable pressure toward conflict. Eisenhower rejected the traditional isolationism of the Republican Party, but he also overruled the advice of his military and civilian advisers to seek a nuclear confrontation with the Soviet Union and China. Only the executive branch could successfully develop and pursue a coherent strategic policy that avoided sharp swings between isolationism and unnecessary war. Eisenhower presided over a stabilization of the Cold War that contained the Soviet Union, deterred incursions against core allies in Europe and Asia, and limited the defense burden on the economy.

Even Cold War Presidents who do not rank highly today found their greatest moments during times that demanded the exercise of const.i.tutional power. While John F. Kennedy's glamorous public image and premature death have won him a popularity that persists to this day, his historical reputation has steadily declined. Kennedy oversaw the Bay of Pigs fiasco, first sent American troops to Vietnam, risked nuclear war over Berlin and Cuba, engaged the United States in counterinsurgency wars, and failed in his efforts to reach an understanding with the Soviets. Kennedy pursued a strategy of "flexible response" that paralleled NSC-68's call for almost unlimited resources to pursue a more activist foreign policy.330 But JFK's finest hour did come in foreign affairs. He ordered a naval blockade of Cuba to prevent Soviet construction of intermediate-range nuclear ballistic missiles, which had the ability to reach most of the continental United States. Although styled a "quarantine," the blockade was an act of war under international law -- it required the use of naval force to block shipping from reaching Cuban ports. Kennedy could not justify the quarantine under any theory of self-defense or authorization by the United Nations. The Soviets and Cubans had not attacked the United States, and the nuclear missiles themselves were incomplete. Even if the missiles had been finished, a Soviet attack could not have been said to be imminent -- the traditional test under international law for the pre-emptive use of force. But JFK's finest hour did come in foreign affairs. He ordered a naval blockade of Cuba to prevent Soviet construction of intermediate-range nuclear ballistic missiles, which had the ability to reach most of the continental United States. Although styled a "quarantine," the blockade was an act of war under international law -- it required the use of naval force to block shipping from reaching Cuban ports. Kennedy could not justify the quarantine under any theory of self-defense or authorization by the United Nations. The Soviets and Cubans had not attacked the United States, and the nuclear missiles themselves were incomplete. Even if the missiles had been finished, a Soviet attack could not have been said to be imminent -- the traditional test under international law for the pre-emptive use of force.331Rather, Kennedy used force and the threat of a wider conflict to prevent a dramatic shift in the balance of power toward the Soviet Union, which at the time had only a limited force of intercontinental ballistic missiles.

As we now know, American forces came perilously close to a military conflict with Soviet and Cuban units, which could have escalated into a nuclear exchange -- the President had earlier served notice that any missile launch from Cuba would trigger a full retaliatory response on the Soviet Union. Kennedy never sought any formal authorization from Congress for his actions, though he did meet with congressional leaders to inform them. Several of the leaders recommended that Kennedy invade Cuba, advice he did not take. Rather, JFK carefully maintained the blockade until the Soviets agreed to dismantle the missiles, in exchange for U.S. removal of medium-range nuclear missiles from Turkey and a pledge not to invade Cuba.332 Critics of presidential power believe that the Const.i.tution must be read to require congressional approval of the use of force. They believe that a more difficult process will "'clog' the road to combat," in John Hart Ely's words, and so keep the United States out of war. Critics of presidential power believe that the Const.i.tution must be read to require congressional approval of the use of force. They believe that a more difficult process will "'clog' the road to combat," in John Hart Ely's words, and so keep the United States out of war.333 World War II shows that this go-slow approach can have a steep cost -- congressional delay can keep the United States out of wars that are in the national interest. Madison's acceptance of the War of 1812 demonstrates the opposite as well: Congress can force the nation into senseless wars. American involvement in Vietnam reveals a third dimension. Congressional partic.i.p.ation is no guarantee against poor judgment, ineffective tactics, or just bad luck. World War II shows that this go-slow approach can have a steep cost -- congressional delay can keep the United States out of wars that are in the national interest. Madison's acceptance of the War of 1812 demonstrates the opposite as well: Congress can force the nation into senseless wars. American involvement in Vietnam reveals a third dimension. Congressional partic.i.p.ation is no guarantee against poor judgment, ineffective tactics, or just bad luck.

President Lyndon Johnson sought and received the approval of Congress for the Vietnam War in the Tonkin Gulf Resolution, pa.s.sed in August 1964 after an alleged attack by North Vietnamese gunboats on U.S. Navy destroyers in international waters. Controversy continues over whether North Vietnamese forces truly attacked the warships and whether the vessels invited the attacks by supporting covert operations in northern territory. LBJ ordered retaliatory strikes and asked Congress for support, but informed the public only that the North's attacks represented deliberate and unprovoked aggression. In a resolution enacted unanimously in the House and by 88-2 in the Senate, Congress declared that it "approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression." The United States was prepared, "as the President determines, to take all necessary steps, including the use of armed force," to defend any SEATO nation "requesting a.s.sistance in defense of its freedom."34 Presidents received consistent support from Congress throughout most of the Vietnam War. Congress approved LBJ's 1965 decision to increase dramatically American military involvement with full financial support. The escalation began in the spring of 1965 with Operation Rolling Thunder, which launched a three-year bombing campaign of North Vietnamese targets. Ground deployments began with 4,000 marines in March but quickly reached 200,000 by the end of the year, and 500,000 within two years. Congress overwhelmingly approved the appropriations for the 1965 escalation and the expansion of the draft. Congressional and popular opinion did not fully turn against Johnson and the war until the Tet Offensive in January 1968, which turned a military defeat into a media victory for the North. Even so, Congress continued to provide the men and material for Nixon's new strategy of "Vietnamization" to take hold.35 Richard Nixon ranks among the below-average Presidents in American history, stuck between Herbert Hoover and Zachary Taylor. To the extent Nixon's Presidency benefited the United States, it came in foreign affairs. His administration introduced detente toward the Soviet Union and the historic opening to China, which created new fissures in the communist bloc. Henry Kissinger's surprise trip to China was carried out in secrecy, even from the State Department, and Nixon extricated the United States from Vietnam, albeit at a high cost (one-third of all American casualties in Vietnam occurred under his Presidency).

To force the North Vietnamese to the bargaining table, Nixon secretly ordered U.S. ground and air intervention into neutral Cambodia, which the North Vietnamese had been using to transport reinforcements into the South. When announced to the public, protests erupted domestically, but efforts in Congress to cut off funds failed. In December 1972, Nixon ordered bombings of Hanoi and other North Vietnamese cities to press for a peace agreement, which was reached in Paris the following month. The Justice Department, relying on a speech by then-a.s.sistant Attorney General William Rehnquist, defended Nixon's Cambodian bombings and his other Vietnam War decisions as an exercise of the Commander-in-Chief power.36 On a different front, the United States threatened the use of force in the Middle East during the 1973 Yom Kippur War in order to ensure the survival of Israel and prevent the conflict from escalating beyond the region. On a different front, the United States threatened the use of force in the Middle East during the 1973 Yom Kippur War in order to ensure the survival of Israel and prevent the conflict from escalating beyond the region.

Watergate weakened the Presidency to the point where Congress changed the balance of powers in its favor. In the 1973 War Powers Resolution (WPR), Congress authorized the President to introduce the American military into hostilities, whether actual or imminent, only with a declaration of war, specific statutory authorization, or an attack on the United States or its forces. The WPR requires that the President "in every possible instant shall consult with Congress" before sending the armed forces into hostilities (or imminent hostilities) and that he must report to Congress within 48 hours afterward. It requires the President to terminate the intervention 60 days after the report unless Congress authorizes the use of force. Nixon vetoed the act on the ground that it violated the President's war authorities, but two-thirds of Congress overrode him. Every President since has refused to acknowledge the WPR's const.i.tutionality, and several have undertaken action in violation of its terms. In these conflicts, Congress chose to allow the President to take the initiative in war-making but also to suffer the political consequences alone.37 Like Eisenhower, President Reagan received little respect from scholars and pundits, who had always dismissed him as little more than an actor, and when he left office, Reagan was considered a below-average President. The pa.s.sage of time has given scholars a newfound appreciation, and he now ranks along with Truman and Eisenhower, among the top Presidents in our history. Reagan came to office when the United States seemed to be in retreat on the world stage, and left it with the Soviet Union on its way to collapse under the weight of its economic inefficiencies and military spending. Critics have suggested that Reagan turned out to be lucky, as he had been all his life, and just happened to be in the Oval Office when internal problems caused the Soviet Union to crumble. Yet, the United States was back on its heels when he took office in 1981. Watergate had led to congressional restrictions on executive power in foreign affairs, the Soviets had achieved superiority in nuclear as well as conventional arms, and the aftermath of Vietnam and the Iranian hostage crisis had given rise to the idea that America was an over-muscled Gulliver whose great military strength was of little use.38 No one would have predicted in 1981 that eight years later the Soviet Union would disappear, and the Warsaw Pact along with it. Few scholars thought that the West's liberal const.i.tutionalism and market economics would prevail, and our nation's preeminent Cold War historian, John Lewis Gaddis, concludes that Reagan contributed to the victory of the United States and its allies in the Cold War. Reagan adopted a national security strategy that would place high demands on the economy for resources and a large buildup of the military. Unlike NSC-68 and Flexible Response, however, the Reagan Doctrine did not aim to react in the same manner and place to block the Soviets. It built up forces in order to challenge the Soviets to a compet.i.tive arms race that would bankrupt their economy, while pursuing rollback in the Third World.

Reagan also introduced a strong element of moral values into containment. Under detente, as practiced by Nixon, Ford, and Carter, the superpower struggle had lost its moral content. Reagan, however, had no difficulty declaring the Soviet Union an "evil empire," one that would be consigned to the "ash heap of history." In 1987, Reagan gave a speech in front of the Berlin Wall, demanding, "Mr. Gorbachev, open this gate! Mr. Gorbachev, tear down this wall!" Historians today believe that Reagan's decision to challenge the legitimacy of the Soviet Union, which was heavily criticized by congressional leaders, was an essential element of America's victory in the Cold War.39 In the developed world, the Reagan administration pursued a strategy of expanding American conventional and nuclear forces to force the Soviets to strain their economy to keep pace. Central to his plan was the Strategic Defense Initiative (SDI), announced in March 1983, which aimed to develop a s.p.a.ce-based weapons system that could shoot down Soviet missiles in flight. Despite opposition from many congressional leaders, the legislature eventually provided $60 billion for SDI research. Reagan supplemented SDI with an upgrade of America's nuclear forces, including the B-1 bomber, the MX nuclear missile, and the Pershing II medium-range nuclear missile in Europe.

Congress cooperated by voting for substantial increases in American military spending. Under the Carter administration, defense-related spending ranged between $244-247 billion, about 4.6 percent of GNP. By the end of Reagan's first term, Congress approved a buildup that reached $358 billion annually. Defense spending would peak at $380 billion in 1986 and level out to $374 billion by the end of the second term. Under Reagan, the military spent more in constant dollars than it did during the Vietnam or Korean Wars, though as a portion of GNP it was on a par with spending between 1972 and 1974.40 Despite the large buildup, Reagan's approach to containment bore more resemblance to Eisenhower's New Look than to Kennedy's Flexible Response. Rejecting detente, the Reagan Doctrine supported anti-communist insurgents in the Third World with the goal of reversing Soviet gains. In National Security Decision Directive 75, the administration declared its policy "to contain and over time reverse Soviet expansionism." As approved by President Reagan, American national security policy declared: "The U.S. must rebuild the credibility of its commitment to resist Soviet encroachment on U.S. interests and those of its Allies and friends, and to support effectively those Third World states that are willing to resist Soviet pressures or oppose Soviet initiatives hostile to the United States." The Reagan administration sent covert a.s.sistance to the contras in Nicaragua, to the mujahedeen in Afghanistan, and to rebels in Angola. While these projects met with success in pressuring Soviet military and economic resources, they involved no U.S. ground troops. American involvement was limited to intelligence support, covert operations, and military and technical aid, while the local forces conducted the fighting on the ground.41 While the Reagan administration's policies helped end the greatest national security threat of the twentieth century, they were marked by const.i.tutional struggles between the executive and legislative branches. Reagan, for one, clearly rejected the const.i.tutionality of the War Powers Resolution and believed that he held the authority to commit troops abroad. In 1983, he launched a quick invasion of the Caribbean island of Grenada to remove a Cuban-supported Marxist regime, an operation that required only 1,900 combat troops. In 1986, Reagan ordered the aerial bombing of military and civilian targets in Libya, including the headquarters of leader Muammar Gaddafi, in response to an attack on American servicemen in Germany. In 1987, Reagan directed the U.S. Navy to protect Kuwaiti oil tankers traveling through the Persian Gulf from Iranian threats. In all of these cases, Reagan claimed the authority to deploy troops under the President's "const.i.tutional authority with respect to the conduct of foreign relations and as Commander-in-Chief of the United States Armed Forces." He did not seek congressional approval, though he usually notified Congress in a manner consistent with the War Power Resolution's reporting requirements.42 Neither Congress nor the courts acted to counter Reagan's interventions. The closest Congress came to enforcing the War Powers Resolution was in 1983 in Lebanon, when the United States and its allies sent troops to Beirut to end a civil war. Congress pa.s.sed a law requiring the withdrawal of troops 18 months later, and Reagan signed the bill in order to gain funding for the operation, though he refused to concede the const.i.tutional point. No confrontation over the Lebanon deployment occurred after the killing of 241 Marines in a terrorist bombing of their Beirut barracks, which caused the administration to withdraw the troops well before the deadline.43 Instead of cutting off funds, some Congressmen sued the President in federal court. They sued Reagan twice to block aid to the contras and once to stop the escort of Kuwaiti tankers. In all three cases, the federal courts refused to hear the cases because they presented political questions outside the scope of judicial review.44 Disputes over war powers, the courts suggested, were to be resolved politically between the President and Congress. Since Congress took no action as a body, the Reagan administration was left with the initiative and the responsibility for success or failure. Disputes over war powers, the courts suggested, were to be resolved politically between the President and Congress. Since Congress took no action as a body, the Reagan administration was left with the initiative and the responsibility for success or failure.

When Congress chose to flex its own inst.i.tutional muscles, it could effectively bring the executive branch to a virtual standstill. This truth was vividly displayed during the Iran-contra affair, which began with congressional efforts to stop U.S. covert activities against Nicaragua. In 1982, Congress prohibited funds for the aid of groups seeking to overthrow the government of Nicaragua. In 1984, news of the CIA's mining of Nicaragua's harbors became public, leading to a funding ban on such operations. Later in the year, Congress enacted the "Boland amendment," which cut off all defense and intelligence funds, for one year, to support any covert or insurgent activity in Nicaragua. National security advisors Robert McFarlane and John Poindexter, and NSC staffer Colonel Oliver North, sought to evade the Boland amendment and also achieve the goal of freeing American hostages held in Lebanon. Using shady arms dealers, they sold weapons to Iran, which controlled the terrorist groups in Lebanon, in exchange for the hostages. They then transferred the proceeds of the arms sales (about $4 million) to the contras, without the money ever reaching the U.S. Treasury.45 What started out as a dispute over foreign affairs turned into yet another Washington, D.C., scandal. Congress conducted lengthy, nationally televised hearings, and an independent counsel undertook criminal investigations. Reagan's public defense -- that he did not remember approving any arms-for-hostages deal -- undermined his image as a Chief Executive in full control of his administration. The independent counsel convicted several of the players in the controversy, including McFarlane, North, and Poindexter for withholding information or making false statements to Congress, but an appeals court overturned the convictions of the latter two. After losing the 1992 election, President George H. W. Bush pardoned five others, including former Secretary of Defense Caspar Weinberger and McFarlane.

Congress had the Const.i.tution on its side. While the President controls foreign affairs and the use of military force abroad, only Congress appropriates federal funds and governs federal property. The legislature should not use criminal law to get its way in a struggle with the President over foreign affairs and national security, but there is no doubt that it can, just as there is no doubt that the President can use his control over the enforcement of the law to preclude any prosecutions -- as Jefferson had with the Alien and Sedition Acts. If Congress believed that the President or his subordinates had violated the Const.i.tution, it should have placed pressure on the executive branch to fire the officials, cut off funds and held oversight hearings, refused to confirm nominees, and even considered impeachment. Using independent counsels transforms policy disputes into criminal cases, which undermines the very flexibility and initiative in government for which the executive branch exists.

At the start of the Iran-contra affair, Reagan's approval ratings fell from 67 to 46 percent in a single month, but by the time he left office, Reagan's popularity had recovered to reach the highest approval ratings of any Cold War President (68 percent).46 Much of this was due to the rise of Mikhail Gorbachev as the leader of the Soviet Union. Gorbachev sought to prop up the Soviet economy by introducing Western-style market reforms (perestroika), and opening up the government (glasnost). Needing to reduce the huge Soviet military budget, Gorbachev was willing to reach deals to freeze or cut conventional and nuclear arms. Two summit meetings in 1985 and 1986 failed to produce any results, but the next conference produced the first-ever reduction in nuclear arms, the Intermediate-Nuclear Forces Treaty banning short- and medium-range nuclear missiles in Europe. Negotiations began for the Strategic Arms Reduction Treaties and the Conventional Forces in Europe Treaty. When completed under the administration of George H. W. Bush, the agreements sharply reduced the nuclear a.r.s.enals of the two superpowers and their conventional weapons in the European theater. While he controlled policy toward the Soviet Union and arms control, Reagan needed the cooperation of the Senate to ratify the treaties and the House to fund the destruction of weapons systems. Nonetheless, it was presidential initiative in foreign affairs, supported by the executive's const.i.tutional primacy in the area that was critical to Reagan's success. Much of this was due to the rise of Mikhail Gorbachev as the leader of the Soviet Union. Gorbachev sought to prop up the Soviet economy by introducing Western-style market reforms (perestroika), and opening up the government (glasnost). Needing to reduce the huge Soviet military budget, Gorbachev was willing to reach deals to freeze or cut conventional and nuclear arms. Two summit meetings in 1985 and 1986 failed to produce any results, but the next conference produced the first-ever reduction in nuclear arms, the Intermediate-Nuclear Forces Treaty banning short- and medium-range nuclear missiles in Europe. Negotiations began for the Strategic Arms Reduction Treaties and the Conventional Forces in Europe Treaty. When completed under the administration of George H. W. Bush, the agreements sharply reduced the nuclear a.r.s.enals of the two superpowers and their conventional weapons in the European theater. While he controlled policy toward the Soviet Union and arms control, Reagan needed the cooperation of the Senate to ratify the treaties and the House to fund the destruction of weapons systems. Nonetheless, it was presidential initiative in foreign affairs, supported by the executive's const.i.tutional primacy in the area that was critical to Reagan's success.

A similar story holds true for the more average Presidents of the Cold War. Scholars consider George H. W. Bush's defining moment to be the 1991 Persian Gulf War. After Saddam Hussein's forces invaded Kuwait on August 2, 1990, President Bush ordered a buildup of American forces along the border of Saudi Arabia with more than 400,000 troops deployed over the course of four months. The administration ultimately sought congressional authorization for the use of force in January 1991 and prevailed in the Senate by a mere five votes. The administration made clear it wanted legislative approval only for political, not const.i.tutional, reasons. Secretary of Defense d.i.c.k Cheney testified before Congress, and the Department of Justice argued in court, that the President could order an invasion without congressional approval. After the war, President Bush said, "I felt after studying the question that I had the inherent power to commit our forces to battle."47 Bush made his more lasting, though less noticed, contribution to the national security in managing the peaceful end of the Soviet empire. Bush successfully pressed for the reunification of Germany, the enlargement of NATO to include former Warsaw Pact nations, and the recognition of Russia and the former Soviet republics. These diplomatic initiatives were conceived and executed by the executive branch. Treaties requiring Senate consent eventually formalized German reunification and NATO expansion, but the underlying changes were achieved by the Bush administration's control over foreign policy.48 What did not happen in the Cold War is even more important than what did. For the three centuries after the recognition of the nation-state system in the Peace of Westphalia, great power wars were commonplace. Just as the twentieth century had its World Wars I and II, the nineteenth had the Napoleonic Wars, and the seventeenth had the Thirty Years' War, to name but a few. These wars took an enormous toll on humanity -- military deaths in World War I reached about 10 million for all nations, and 25 million in World War II, with estimates ranging from double to triple those numbers in civilian deaths.

By the twentieth century, the United States could no longer isolate itself from the struggles in Europe. World War I cost the United States 116,000 soldiers and sailors killed and 204,000 wounded. In World War II, the U.S. armed forces had 405,000 killed and 672,000 wounded. In World War I, the Wilson administration spent about $310 billion on the military. In World War II, the military consumed about $3.5 trillion (both figures in 2008 dollars). With the development of tactical and strategic nuclear weapons, military conflict between the United States and the Soviet Union would have been far worse in terms of casualties and financial costs than both World Wars -- and probably all U.S. wars -- put together.

That the United States avoided another great power conflict from 1945-92 is a testament to the stewardship of Presidents from Truman through George H. W. Bush. Nine American Presidents from different parties, over half a century, patiently pursued a policy that contained, and ultimately exhausted, an enemy that outmatched the United States in land power. They had to follow a moderate course that sometimes required active challenges to the Soviets, at other times, restraint. It was not produced by a system where Congress generally controls foreign and national security policy.

Many academics a.s.sume that congressional dominance would lead to less war, because Congress is slower to move at home and less adventuresome abroad. In effect, this approach finds a virtue in the internal transaction costs within Congress, which make it difficult for a large number of people to reach agreement.49 But there is no historical reason why Congress should be less warlike than Presidents. It was the war hawks in Congress, not President Madison, who pushed the United States into the War of 1812, for example. A Congress eager for territorial expansion sought war in 1846 and 1898. But there is no historical reason why Congress should be less warlike than Presidents. It was the war hawks in Congress, not President Madison, who pushed the United States into the War of 1812, for example. A Congress eager for territorial expansion sought war in 1846 and 1898.

Putting aside whether their a.s.sumptions about Congress are accurate, the critics' reading of the Const.i.tution could have placed the nation in a straitjacket as it rose to confront the challenges of the Cold War. It is true that a high level of cooperation among the branches was necessary to prevail, but containing the Soviet Union called for a wide range of instruments of national power, ranging from covert action, to crisis management, to shorter conflicts, to long-term national security planning. Congress could not have conducted successful policy along these dimensions. The unpredictability, suddenness, and high stakes of foreign affairs were the very reasons for the Framers' creation of an independent executive branch.

Presidential leadership during the Cold War did not just advance American interests in the short term, but benefited human welfare in the West and Asia. At the end of World War II, the economies and populations of the Axis powers were ruined. Germany's population had fallen to its 1910 level, 68 million, and its economy had collapsed. j.a.pan was similarly devastated; its population in 1950 was estimated to be roughly 84 million, and the war destroyed about 40 percent of its industrial capacity. Today, Germany's population is 82 million, and its GDP is $2.9 trillion, third in the world. j.a.pan's population today is 127 million, and its GDP is $4.34 trillion, second in the world. Italy's GNP today is $1.84 trillion, seventh in the world. Although Presidents had demanded unconditional surrender, once the war was over they reintegrated our former enemies into the political and economic systems of the West. Presidents supported a system of market-based economies and const.i.tutional democracy -- with the financial support of Congress at times -- primarily through their control over foreign policy.50 We can also see the effects in the countries that witnessed the most direct American intervention. South Korea, a small agrarian nation with a population of 21 million in 1955, today has a population of 48 million and is the 13th largest economy in the world with a GNP of $888 billion. (Nominal GNP in 1962 was only $2.3 billion.) North Korea's population, by contrast, has stagnated for the past decade at around 21-22 million, with annual economic growth of less than half of one percent; its economy is barely functional, with a GNP of no more than $40 billion (which ranks it at the very bottom in the world), and its society is governed by the most extreme Communist dictatorship left on earth.

Vietnam, too, took its toll on the lives and treasury of the United States and arguably destroyed two Presidencies, but the effects of American withdrawal may have been even steeper -- millions of Vietnamese were killed or sent to concentration camps, or fled as boat people. Wars in both Korea and Vietnam sent important signals to the Soviet Union and China that the United States would continue to resist Communist expansion forcefully. It is impossible to answer counterfactual questions, but if Congress had held the upper const.i.tutional hand in war and had refused to send troops to Korea and Vietnam, the Cold War may have ended very differently. The costs of congressional paralysis during the Cold War could well have been higher than the costs of executive action, even taking into account these setbacks.

PRESIDENTS AND THE ADMINISTRATIVE STATE.

PRESIDENTS DURING the Cold War period complemented their activist foreign policy with consistent efforts to establish tighter control over the administrative state. This was a natural response to fundamental changes in American government. The Court's removal of the limits on federal power allowed economic regulation on a truly national scale. In the 20 years after the New Deal, Congress -- often at the behest of Presidents -- enacted laws setting national standards for working conditions, labor unions, and wages and hours, among other subjects. Another burst of federal regulation followed in the 1960s and 1970s; federal rules spread to cover crime, voting, housing, race, consumer rights, and the environment. The New Deal had taught Americans to expect their national government to do more to cure everyday problems, and Presidents and Congresses together responded with a mixture of direct rules, criminal laws, tax benefits, and spending. Even Republican Presidents like Eisenhower, Nixon, and Reagan never seriously tried to undo the New Deal's paradigm shift in the role of the federal government.

Congress delegated sweeping powers over these new objects of federal attention to the agencies. It is fair to say that the administrative state, rather than Congress, makes the majority of the federal rules that affect individual citizens today. Delegation gives Presidents more power, but at a price. It allows Congress to escape responsibility for difficult public policy choices, usually ones that will spark high levels of opposition no matter what option is chosen. Congress can avoid decisions that are risky or unpredictable, or that require scientific or technical judgment. Better to have the executive branch, for example, balance safety, air quality, industrial growth, and fuel costs in setting minimum mileage requirements for automobiles. Individual legislators can criticize almost any agency decision without having to face the difficult trade-offs themselves. They can focus instead on funneling benefits to discrete groups that will support them with votes or campaign contributions.51 FDR set the example of the Presidency, not Congress, as the energetic force responsible for solving the nation's domestic problems. Presidents are now held accountable for the nation's economic performance, over which they have little real power (in contrast to the Chairman of the Federal Reserve Board). They are expected to submit annual budgets to Congress, even though it is the legislature that commands the power of the purse. They launch comprehensive reform proposals to deal with every imaginable national problem, even though the Const.i.tution gives Congress almost all of the national government's powers over domestic affairs.

Presidents today are expected to have solutions at hand for problems big and small: natural disasters (Hurricane Katrina relief), local crime (midnight basketball for teens), and poor borrowing decisions (lowering mortgage rates). As Richard Neustadt wrote five decades ago, "everybody now expects the man inside the White House to do something about everything." Presidential proposals for legislation, managed by White House lobbyists and backed up by the veto, are now a central feature of national politics. As a const.i.tutional matter, the President can only block (a.s.suming he has one-third of the Senate or House with him) Congress's initiatives, not force it to pa.s.s his own. This gap between high public expectations and weak const.i.tutional powers is one of the sharpest paradoxes of the American Presidency today.52 While these developments had their historical antecedents, they emerged during the New Deal on a ma.s.sive scale. Like FDR, the Cold War Presidents responded by seeking to impose order and rationality over the executive branch. Originally, delegation was driven by the idea that the executive branch would bring greater technical expertise. Rules would come from neutral administrators, rather than the political process and its susceptibility for temporary pa.s.sions or interest-group biases.

During the later New Deal and postwar period, however, it became evident that politics were inseparable from administration, especially as the delegations became broader. The Clean Air Act, for example, orders the Environmental Protection Agency to set air-quality standards the attainment of which "are requisite to protect the public health." Deciding how much air pollutant to allow goes beyond technical expertise and requires trade-offs among competing values, such as economic growth, improved health, and feasibility of reductions. As an original matter, it is doubtful that the Framers believed the legislature could grant such sweeping power absent the necessities of wartime emergency. But after losing the New Deal confrontations, the courts no longer policed the amount of delegation from Congress to the executive branch.53 All of the Cold War Presidents struggled to increase their control over the vast swaths of bureaucracy inside the Beltway -- both to inject more expertise into decisions and to make themselves the voice of electoral accountability within the administrative state. They wanted to make sure that the thousands of decisions made by the agencies every day were moving in the same direction. If the President had just been elected in the midst of a recession, for example, his White House could press each major agency decision to strike its regulatory balance toward pro-growth policies and private-market ordering. The primary method became direct presidential control over agencies' decisions through a larger and more specialized White House staff.

The Bureau of the Budget, located inside the Executive Office of the President, became "OMB," the Office of Management and Budget, and its authority expanded beyond supervision of the agency budget process to include the review of proposed legislation and congressional testimony by executive branch officials. Under the Nixon, Ford, Carter, and Reagan administrations, OMB imposed cost-benefit a.n.a.lysis on executive rule-making without any clear statutory mandate. Under Director George Shultz, OMB began to review environmental regulations to determine whether their economic benefits outweighed their costs. Presidents Ford and Carter gradually expanded the scope of cost-benefit review until President Reagan, in Executive Order 12291, broadened it to all executive branch regulations and allowed OMB to stall any regulation for failing cost-benefit review.

Cost-benefit a.n.a.lysis put in sharp relief the President's powers of management and administration. Critics of Executive Order 12291 correctly noted that many statutes did not impose a standard that a regulation's economic benefits exceed its costs. Congress had codified the basic p