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Many of you probably recognize H.W. Brands as a history professor at University of Texas - in fact the Jack C. Blanton Sr. Chair in History.  Unfortunately, I never took one of his classes, but I have followed him for many years.  He has written several biographies of U.S. Presidents along with other books.  For the last several years, he has published A User's Guide to History on Substack - hwbrands@substack.com.  I subscribed and get several emails a week.  His range of topics is endless, but most touch on the historical relevance or foundation of a modern issue.

I mainly wanted illuminate his writings to those who are interested.  I will probably post a few of his articles - at least some that I find interesting. 

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Posted

These are generally fair long, so I'll use spoiler tags to keep the thread manageable.

The incredible vanishing Congress:

Spoiler
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  United States Capitol - Wikipedia  

It began with George Washington’s declaration of American neutrality in the 1790s war between Britain and France. The Constitution explicitly gives Congress the authority to declare war. From this a reasonable person would assume Congress has the authority to withhold a declaration of war, which would amount to a declaration of neutrality.

Yet Washington took it upon himself to declare neutrality. No one objected to the substance of his decree, none really wanting war. And though sticklers like James Madison grumbled that the executive was intruding on a legislative prerogative, no major protest was mounted. Score one for the president. Score a minus one for Congress.

Washington’s successors lacked his stature, and for decades Congress held the line against additional erosion of its powers. If anything, under the leadership of Henry Clay the House of Representatives and the Senate elevated their standing vis a vis the presidency. The Senate in the 1830s censured Andrew Jackson for his treatment of the Bank of the United States and his firing of the secretary of the treasury. Just after the Civil War the House impeached Andrew Johnson for firing the secretary of war, and the Senate came within a vote of convicting him. Meanwhile Congress wrested control of Reconstruction from Johnson and imposed its own political blueprint on the defeated South.

All the great debates in American politics in the 19th century took place in Congress. The Missouri Compromise and the Compromise of 1850 were compromises between parties and factions in the legislature. The tariff – the most consistently contentious topic in American politics from the 1810s to the 1930s – remained squarely where the Constitution placed it, in the purview of Congress. Several tariffs had names – the McKinley tariff, the Underwood tariff, the Fordney-McCumber tariff, the Smoot-Hawley tariff - and every named sponsor was a member of Congress.

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Things began to change about the start of the 20th century. America developed a full-time foreign policy. Part of this was due to the acquisition of the Philippines and other offshore territories, which were administered by the executive. Part reflected the complications with Japan and other countries the new possessions created, complications that fell most naturally to the president. And part reflected the outsized ambition of Theodore Roosevelt, who seized the Panama Canal Zone and unilaterally declared an American protectorate over Latin America.

Further erosion occurred amid the depression of the 1930s. The economic emergency fostered dictatorships in several countries around the world, and though the United States stopped well short of giving the president dictatorial powers, Congress collaborated in a dramatic expansion of presidential power by the creation of numerous new executive agencies that answered to the president rather than to Congress.

World War II and its sequel, the Cold War, shifted the balance of power still further toward the White House. The president and his assistants designed the institutional framework that shaped international affairs in the aftermath of the war. At crucial moments Congress still played its constitutional role. The Senate ratified the North Atlantic Treaty. The House and Senate voted funding for the Marshall Plan.

But when North Korea invaded South Korea in 1950, Harry Truman committed American troops to the defense of the latter without asking congressional approval. He explained after the fact that the threat to America’s defensive perimeter didn’t allow time for the traditional declaration of war by Congress. He contended that the war in Korea was not really a war but a police action under the aegis of the United Nations.

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As in the case of George Washington’s neutrality declaration a century and a half before, Truman’s usurpation of the warmaking authority of Congress wasn’t seriously challenged. Amid the red scare inflamed by Joseph McCarthy, no member wished to be seen as opposing anything anticommunist. And as in the case of Washington and neutrality, the failure to challenge Truman on warmaking produced a permanent cession of power to the president. America has fought five regular wars since World War II, and not one has been declared by Congress.

Congress ceded still other powers in the subsequent decades. While nominally retaining its constitutional grip on tariffs and trade policy in general, the legislature allowed the president to impose tariffs and regulations in the event of emergency or in response to unfair trade practices. And it allowed the president to determine when such conditions existed. In 1970 Congress approved the Economic Stabilization Act, which authorized the president to impose wage and price controls when he thought them necessary. Nixon did just that the next year. Congress set broad guidelines on immigration but allowed the president to modify them in the interest of national security – again as defined by the president.

The abdication by Congress continues. Since Donald Trump took the oath of office on January 20, the news from Washington has been dominated by what the president has done or is about to do. Will there be a trade war? Trump will decide. Will ten million immigrants be deported? Trump will decide. Will millions of federal workers be fired? Trump will decide. Will federal grants already appropriated be disbursed to their recipients? Trump will decide. Will American aid to Ukraine continue? Trump will decide.

In each of these and other areas, decisions intended by the framers of the Constitution to be made by Congress are being made in the White House. Congress could reclaim its authority if it chose to. But the Republicans don’t dare to cross Trump lest he unleash his supporters at the next primary, and the Democrats lack the numbers to protest effectively.

Neither party is willing to take a principled position on the relationship between Congress and the president. As much as Democrats dislike Trump’s unchecked authority, they were happy when Barack Obama and Joe Biden wielded the presidential hammer. Neither party wants to roll back presidential power per se, for fear that their party’s disarmament will prove unilateral.

The Capitol still sits at the east end of the national mall. It used to be bigger.

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Posted
6 minutes ago, Jerry Callo said:

Many of you probably recognize H.W. Brands as a history professor at University of Texas - in fact the Jack C. Blanton Sr. Chair in History.  Unfortunately, I never took one of his classes, but I have followed him for many years.  He has written several biographies of U.S. Presidents along with other books.  For the last several years, he has published A User's Guide to History on Substack - hwbrands@substack.com.  I subscribed and get several emails a week.  His range of topics is endless, but most touch on the historical relevance or foundation of a modern issue.

I mainly wanted illuminate his writings to those who are interested.  I will probably post a few of his articles - at least some that I find interesting. 

I was fortunate to take a course from him, focusing on the 1890's through the lens of his book The Reckless Decade. Hands-down one of my favorite courses I took in my time at Texas

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Posted

An army in the streets

Spoiler
An army in the streets

Troops as cops?

Feb 7
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Americans who lived through the Revolutionary War had a deep aversion to the use of the army in civilian affairs. They remembered how the stationing of British troops in Massachusetts had led to the Boston massacre and the battles of Lexington and Concord.

The memories persisted in 1787 when delegates gathered in Philadelphia to write a new constitution. The charter they produced increased the powers of the central government and of the executive in particular. But it reserved to the legislature the authority to declare war, to raise and support armies, and “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.”

The delegates didn't expect the Congress to actually command the army. That power was granted to the president, who would be “commander in chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States.”

The delegates expected domestic law to be almost exclusively the responsibility of the states. Yet it allowed an oversight role for the central government. “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion, and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

As for federal law which applied to individuals, in the early days there was almost none. The first important exception was an excise tax approved by Congress in 1791. Its stated purpose was to provide revenues to pay off debt from the Revolutionary War. A secondary purpose, in the minds of advocates of greater centralization such as Alexander Hamilton, was to make federal power real in the lives of individuals.

The taxed items included whiskey, the production of which was a staple of the economies of the western parts of states like Pennsylvania, where bad roads and long distances prohibited the profitable export of commodities like grain to the markets of the East. Conversion of the grain into whiskey enormously increased its value per pound and made such export feasible.

The whiskey distillers of the region around Pittsburgh were no more pleased by the new tax on whiskey than American colonists had been pleased by the new tax on stamps in 1765. Their response was much the same. They refused to pay. And when federal tax men came to collect the tax, they were threatened and assaulted by the tax resisters.

Hamilton had been waiting for just such a response. He urged President George Washington to use military force to crush the whiskey rebellion. Washington wasn't as trigger-happy as Hamilton. At first he sent special envoys to talk to the whiskey rebels. But to lend weight to the government's side of the negotiations, he called on the governors of nearby states to send militia to Pennsylvania. Washington himself got out his old military uniform, saddled up his warhorse, and rode to rendezvous with the arriving militias.

By this time the president’s authority had been bolstered by the 1792 Militia Act. The measure allowed the president, on the request of a state legislature or governor, to summon militia from the several states to suppress an insurrection against the government of the requesting state. It also permitted the president, on his own authority, to mobilize militias to enforce federal law when federal marshals were unable to do so. The second permission applied to the whiskey rebellion.

Washington’s show of force persuaded the rebels to scatter. Washington was pleased at having avoided a pitched battle. Hamilton was disappointed

Soldiers in the service of the United States were employed to enforce the law on subsequent occasions. The Civil War was the most spectacular case, lasting four years and involving millions of troops. During the war, Union troops were dispatched to New York to suppress anti-conscription riots in 1863. During Reconstruction, Union soldiers embodied military rule in the former Confederate states. Ulysses Grant sent the army against the Ku Klux Klan in South Carolina in the early 1870s. Grover Cleveland dispatched federal troops against rioters during the Pullman railroad strike of 1894. Dwight Eisenhower sent troops to secure school desegregation in Little Rock, Arkansas. George H. W. Bush deployed federal troops during riots in Los Angeles after the 1992 beating of Rodney King.

The use of the army to enforce law during Reconstruction prompted Congress in 1878 to narrow the circumstances under which federal troops could be used. The Posse Comitatus Act declared, “It shall not be lawful to employ any part of the Army of the United States, as a posse comitatus” – a concept from English history with a label meaning “power of the county” and referring to citizens deputized to assist in law enforcement – “or otherwise for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress.” The constitutional authorization came from the passage cited above. An act of Congress would be specific to a particular case.

The deployments of troops after passage of the act followed requests from the state governments for help in suppressing domestic violence, per the Constitution. The exception was Eisenhower’s dispatch of troops to Arkansas, over the objections of the state government. Eisenhower cited federal civil rights laws from the 1870s as triggering the “act of Congress” language of the Posse Comitatus Act.

President Trump has indicated his intention to use federal troops to assist in the enforcement of immigration law. He hasn’t specified the legal authority for his action, which would appear to violate the Posse Comitatus Act. He might cite his sworn duty to “preserve, protect and defend the Constitution.” He has frequently described illegal immigration and the other crimes he associates with it as an invasion. On his first day in office he declared a national emergency at the border with Mexico. “America’s sovereignty is under attack,” Trump’s declaration said. “This assault on the American people and the integrity of America’s sovereign borders represents a grave threat to our Nation.” Therefore: "It is necessary for the Armed Forces to take all appropriate action to assist the Department of Homeland Security in obtaining full operational control of the southern border.”

Trump might cite a series of insurrection laws dating to the 1790s and including the measure under which Lincoln waged the Civil War. Trump’s order characterized the situation on the southern border as “widespread chaos.” From chaos to insurrection might be a short interpretive step.

Or he might simply break new ground in presidential authority. He is doing so in other areas. In this area as in some of those, he’s likely to face lawsuits challenging his authority.

How such lawsuits will turn out is, at this point, anyone’s guess. As is how the president might respond to adverse rulings in them. And how — most crucially — the army would respond to presidential orders given in defiance of the Supreme Court.

 

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