CONSTITUTIONAL HISTORY, 1961–1977

An examination of nonjudicial constitutional development from the administration of President john f. kennedy to that of President gerald r. ford reveals at the outset an unusual amount of constitutional change through the process of constitutional amendment. Indeed, counting the adoption of the bill of rights in 1791 as only one episode of constitutional change via the amendment process, the period from 1961 to 1977 was characterized by an exceptionally high level of constitutional amending activity, with four amendments adopted during the period. In contrast, again counting the adoption of the Bill of Rights as one amendment episode, there were thirteen constitutional amendments adopted between 1789 and 1961.

Three of the constitutional amendments adopted during the 1961–1977 period were clear reflections of the expansion of egalitarianism that found expression in other fields in the policies of reapportionment, and the enlargement of the protection of civil rights. The twenty-third amendment, adopted on March 19, 1961, extended the right to vote in presidential elections to the residents of the district of columbia although restricting the District to the number of electoral votes allotted to the least populous state. The twenty-fourth amendment, ratified on January 23, 1964, outlawed the imposition of poll taxes in presidential and congressional elections and therefore removed a form of wealth discrimination in federal elections. The addition of this amendment to the Constitution was subsequently rendered superfluous by the Supreme Court's holding in harper v. virginia board of elections (1966) that poll taxes were a form of invidious discrimination prohibited by the Constitution. Further extension of voting rights occurred with the adoption of the twenty-sixth amendment on June 30, 1971, which extended the right to vote in both federal and state elections to eighteen-year-old citizens. The Twenty-Sixth Amendment was necessitated by the Supreme Court's holding in oregon v. mitchell (1974) that Congress lacked the constitutional power to legislate the eighteen-year-old vote in state and local elections.

In contrast with the Twenty-Third, Twenty-Fourth, and Twenty-Sixth Amendments, the Twenty-Fifth Amendment, relating to presidential succession and disability and adopted in 1967, was the result of years of debate with regard to the problems that might arise if an incumbent president were temporarily or permanently disabled. Serious consideration of such an amendment to the Constitution was prompted by the illnesses afflicting President dwight d. eisenhower during his term of office, and additional impetus for constitutional change in this area was created by the assassination of President Kennedy in 1963.

Under the provisions of the Twenty-Fifth Amendment, the President may declare his own disability to perform the duties of the office by informing the president pro tempore of the senate and the speaker of the house of representatives in writing of his own disability. Alternatively, the President's disability may be declared in writing to the same congressional officers by the vice-president and a majority of the Cabinet. In either instance, the vice-president assumes the duties of the presidency as acting President. A period of presidential disability may be ended either by the President's informing the congressional officers in writing of the termination of his disability, or if there is disagreement between the President and the vice-president and a majority of the Cabinet on the issue of the President's disability, the Congress may resolve the dispute. A two-thirds majority of both houses of Congress, however, is required to declare the President disabled; otherwise, the President resumes the duties of his office.

Although the disability provisions of the Twenty-Fifth Amendment have not been applied, Section 2 of the amendment had an important impact on the succession to the presidency during the administration of President richard m. nixon. Section 2 provides that whenever a vacancy in the office of vice-president occurs, the President shall appoint a new vice-president with the approval of a majority of both houses of Congress. These provisions of the Twenty-Fifth Amendment came into play when Vice-President Spiro T. Agnew resigned his office in 1973 under the threat of prosecution for income tax evasion. Pursuant to Section 2, President Nixon appointed Congressman Gerald R. Ford of Michigan as Agnew's successor, and the Congress confirmed Ford as vice-president. Subsequently, President Nixon resigned his office on August 9, 1974, when his impeachment for his involvement in the water-gate affair and other abuses of office seemed imminent, and Vice-President Ford succeeded Nixon in the office of President. Under the provisions of the Twenty-Fifth Amendment, Ford thus became the first appointed vice-president as well as the first unelected vice-president to assume the office of the presidency.

The Watergate affair that led to President Nixon's resignation involved not only charges of bugging the Democratic National Committee headquarters, and the obstruction by the executive of the subsequent investigation of that incident, but also more generalized abuses of power by the executive. In addition to the issue of the scope of executive privilege, which was ultimately resolved by the Supreme Court adversely to the President's claims in united states v. nixon (1974), the Watergate affair raised major constitutional issues concerning the nature of the impeachment process, as the impeachment of a President was seriously considered by the Congress for the first time since the impeachment of President andrew johnson in 1868. Because the Constitution provides that governmental officers including the President may be removed from office on impeachment for treason, bribery, or other high crimes and misdemeanors, the consideration of the impeachment of President Nixon by the Congress involved the determination of what constituted an impeachable offense, an issue that had also been at the heart of the debate over the Johnson impeachment.

In the deliberations of the Judiciary Committee of the House of Representatives regarding articles of impeachment against President Nixon, the President's supporters argued that the President could be impeached only within the meaning of the Constitution for an indictable criminal offense. The President's opponents, on the other hand, contended that articles of impeachment could embrace political offenses, such as the abuse of power by the President, which were not indictable under the criminal law. The latter position ultimately prevailed among a majority of the Judiciary Committee when the committee adopted three articles of impeachment against President Nixon that contained charges that were essentially political, abuse of power offenses which were not indictable.

Article one of the articles of impeachment charged the President with obstruction of justice and with violating his oath of office requiring him to see to it that the laws were faithfully executed, but the second and third articles charged him with violating the constitutional rights of citizens, impairing the administration of justice, misusing executive agencies, and ignoring the subpoenas of the Judiciary Committee through which it had sought evidence related to its impeachment inquiry. Although these charges included some indictable offenses, in adopting the articles the majority of the committee obviously construed the words "high crimes and misdemeanors" to include offenses that did not involve indictable crimes. In reaching this conclusion, the committee majority took a position that conformed with the view of the nature of the impeachment process that the House of Representatives had adopted in the Johnson impeachment proceedings in 1868.

Whether this broad view of the nature of impeachable offenses would have been sustained by a majority of the House of Representatives or the required two-thirds majority in the Senate remained an unanswered question because of President Nixon's resignation in August 1974. The Supreme Court rejected the President's claim of executive privilege and ordered the disclosure of the White House tape recordings relevant to the trial of those indicted in the Watergate affair. On the tapes thus released there appeared conversations clearly indicating President Nixon's participation in a conspiracy to obstruct justice, an indictable offense. In light of almost certain impeachment by the House of Representatives and likely conviction in the Senate, President Nixon resigned. With the impeachment process thus aborted, the answer to what properly could be considered an impeachable offense was left unresolved, as it had been in the proceedings against President Johnson over a hundred years earlier.

The Watergate affair and the abuses of presidential power associated with it, along with the involvement of the United States in the Vietnam War, had a profound impact upon the principal nonjudicial constitutional issue during the 1961–1977 period—the issue of the proper relation between the powers of the executive branch of the government and the powers of the Congress. Beginning at least as early as the administrations of franklin d. roosevelt in the 1930s and 1940s, the presidency had increasingly become the dominant political institution at the national level, and Roosevelt's successors refined and added to the assertions of presidential power that had characterized his administrations. By the late 1960s and early 1970s, therefore, the "Imperial Presidency" had become the focus of considerable attention and constitutional controversy, and a reassertion of congressional power against the aggrandizement of presidential power had clearly begun.

This reassertion of congressional power was to a great extent a reaction to the expansion of the powers of the presidency to new extremes during the administration of President Nixon. Although previous presidents had asserted the power to impound and to refuse to expend funds appropriated by Congress in limited areas, President Nixon asserted a much broadened impoundment power as a presidential prerogative. Instead of the relatively isolated instances of presidential refusals to spend congressionally appropriated monies that had occurred previously, during the 1970s the Nixon administration impounded billions of dollars in congressional appropriations and effectively asserted a presidential power to enforce only those congressionally authorized programs that received the president's approval.

The involvement of the United States in the war in vietnam and Southeast Asia contributed to further controversy regarding the scope of presidential power to commit the armed forces to foreign military conflicts in the absence of a declaration of war by the Congress. The involvement of the United States in Vietnam had begun under President Kennedy with the dispatch of military advisers to the South Vietnamese armed forces, but under Presidents lyndon b. johnson and Nixon the American military presence in Southeast Asia grew to hundreds of thousands of troops. The failure of the American military efforts in Southeast Asia and the high cost of those efforts in lives and resources bolstered the arguments of critics that the power of the President to commit the United States to foreign military conflicts must be reined in.

Because of the impoundment policy of the Nixon administration and the presidential war in Southeast Asia, a reassertion of congressional power occurred in the field of domestic as well as foreign affairs. The congressional response to the impoundment controversy was the enactment of the congressional budget and impoundment control act of 1974. This legislation provided that if the President resolved to eliminate the expenditure of funds appropriated by Congress, he was required to inform both houses of Congress of: the amounts involved; the agencies and programs affected; and the fiscal, budgetary, and economic effects of, and the reasons for, the proposed impoundment of funds. Both houses of Congress, the act provided, must approve the impoundment within forty-five days. If the President proposed instead to defer the spending of congressionally authorized appropriations, the act provided that he must similarly inform Congress of his intention to defer expenditures, and within forty-five days either house of Congress could require the expenditure of the funds by passing a resolution disapproving the President's proposed action. If the President refused to abide by congressional disapproval of impoundments, the act further authorized the Comptroller General to initiate legal action in the federal courts to force compliance with the will of the Congress.

In addition to addressing the problem of presidential impoundments, the Congressional Budget and Impoundment Control Act was directed at strengthening the powers of Congress over the budgetary process. To replace the practice of enacting appropriations without regard to the total amount that should be appropriated in a given fiscal year, the act provided that the Congress should agree upon a budget resolution at the outset of the appropriations process, setting the total amount of money to be appropriated during the fiscal year. The amount so specified would then govern the actions of Congress in considering individual appropriations bills.

Finally, the act created a new agency, the Congressional Budget Office, and authorized that agency to advise Congress regarding revenue estimates, the likely amount of deficits or revenue surpluses and other economic data important to the budgetary process. Congress thus created a congressional agency, beyond the control of the executive, which would be an independent source of economic and budgetary information in competition with the executive branch's Treasury Department and Office of Management and Budget.

This reassertion of congressional power over domestic policy was matched in the field of foreign policy by the war powers resolution of November 7, 1973, passed over the veto of President Nixon. In the War Powers Resolution, Congress sought to deal with the problem of presidential wars such as the military involvement of the United States in Southeast Asia. Congress therefore not only imposed restrictions upon the power of the President to commit the country's armed forces in foreign conflicts but also sought to define the war-making powers of both the President and the Congress.

With regard to the war-making power of the President, the War Powers Resolution declared that the President could introduce United States armed forces into hostilities, or into a situation in which imminent involvement in hostilities was clearly indicated by the circumstances, only pursuant to a declaration of war, or under specific statutory authorization, or in response to a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces. The language of the resolution thus clearly repudiated the argument, frequently asserted in the past, that the President was constitutionally authorized to take whatever action deemed necessary to protect the national interest. The impact of the resolution as an authoritative congressional interpretation of the President's constitutional war-making power was diluted, however, by the decision of Congress to include the interpretation of the President's war-making power in the "Purpose and Policy" section of the act, with the result that it did not purport to have legally binding effect.

The parts of the War Powers Resolution that did purport to be legally binding required the President to consult with Congress in every possible instance before committing the armed forces in hostilities or hostile situations. If the armed forces are introduced by the President into hostilities or hostile situations in the absence of a declared war, the resolution provided, the President must report the situation in writing to the presiding officers of the Congress within forty-eight hours and continue to report every six months thereafter. The resolution further required that in the absence of a declared war, the introduction of the armed forces must be terminated within sixty days, or ninety days if the military situation makes their safe withdrawal impossible within sixty days. Finally, in the absence of a declared war or congressional authorization, the President must withdraw the armed forces from hostilities occurring outside the territory of the United States if Congress directs him to do so by concurrent resolution, which is not subject to the President's veto power.

Although the War Powers Resolution was plainly an attempt by Congress to reassert its authority over presidential war-making and over the conduct of foreign affairs generally, its impact upon presidential power did not appear to have been so great as its supporters hoped or it critics feared at the time of its passage. During the administration of President Ford, American armed forces were introduced into hostile situations during the evacuation of Vietnam as well as during the recapture of the American merchantman Mayaguez and its crew from Cambodia. President Ford nevertheless did not feel bound in these actions by the terms of the War Powers Resolution but rather made plain his conviction that he was acting under his constitutional powers as commander-in-chief and as chief executive. The War Powers Resolution was thus subjected to early challenge as an authoritative construction of the President's war-making power. Given the ability of Presidents to marshal public support for their actions in foreign affairs, particularly in times of crisis, it was clear that the act could not be considered the last word regarding the relative power of Congress and the President in the field of foreign policy and war-making.

Just as the War Powers Resolution and the Congressional Budget and Impoundment Control Act symbolized the reassertion of congressional power in relation to the executive, both also embodied the device which Congress increasingly used in reasserting power over executive policymaking—the legislative veto. The legislative veto first emerged as a congressional device for controlling the executive during the 1930s when Congress reserved the right to veto presidential proposals to reorganize the executive branch, but by the 1970s the legislative veto in various forms had proliferated and had been embodied in almost two hundred statutes enacted by Congress. The increased use of the legislative veto reflected Congress's dissatisfaction with its relationship with the executive and a desire to reassert policymaking power that had been eroded during the previous decades of heightened executive power.

Congress employed the legislative veto to disapprove proposed presidential actions, to disapprove rules and regulations proposed by the executive branch or administrative agencies, and to order the termination of presidential actions. The device took several forms, with some statutes requiring a resolution of approval or disapproval by only one house of Congress, others requiring both houses to act through a concurrent resolution, and still others conferring upon congressional committees the power to exercise the legislative veto.

Despite its increased use by Congress, the legislative veto was frequently opposed by the executive branch since its introduction in the 1930s on the grounds that the practice violates the Constitution. The executive and other critics of the legislative veto argued that the practice violated the principle of separation of powers, ignored the principle of bicameralism in the exercise of legislative power, and allowed Congress to avoid the President's veto power which is normally applicable to legislation passed by Congress.

The constitutional principle of separation of powers, critics of the legislative veto noted, permits Congress to shape national policy by passing statutes, but, properly construed, does not permit Congress to interfere in the enforcement or administration of policy—a power properly belonging to the executive branch. The legislative veto, it was argued, thus violated a fundamental constitutional principle, especially insofar as it was used to allow Congress to veto rules and regulations proposed by executive or administrative agencies under delegations of power from the Congress.

Opponents also argued that the Constitution contemplates that Congress's policy-making role ordinarily requires the passage of statutes by both houses of Congress with the presentation of the statutes to the President for his approval or disapproval. By allowing the approval or disapproval of national policy through single house resolutions, joint resolutions, or decisions of congressional committees, it was argued, the legislative veto ignored the bicameral legislative process contemplated by the Constitution and in addition permitted congressional policymaking through mechanisms not subject to the President's veto power, as the Constitution also contemplated.

Congress, on the other hand, clearly viewed the legislative veto as a useful weapon in exercising oversight over the executive and the bureaucracy, both of which were recipients of massive delegations of legislative power since the 1930s. Striking at another source of the imperial presidency, Congress thus embodied the legislative veto in the National Emergencies Act of 1976, which terminated national emergencies declared by the President in 1933, 1950, 1970, and 1971, and required the President to inform the Congress of the existence of national emergencies and the powers the executive intends to use in managing the emergency. Such emergencies, the act provided, could be terminated at any time by Congress via a concurrent resolution. (See emergency powers.)

Despite the long-standing controversy regarding the constitutional legitimacy of the legislative veto, the Supreme Court did not pass upon the validity of the device until 1983. In immigration and naturalization service v. chadha (1983), however, the Court declared the legislative veto invalid on the ground that it violated the constitutional principles requiring legislative enactments to be passed by both houses of Congress and to be subject to the veto powers of the President.

Just as the period from the administration of President Kennedy to that of President Ford witnessed significant readjustments of presidential-congressional relations, dramatic changes also occurred during the period in the nature of the political party system and the electoral process. Perhaps the most significant development was the decline in the power and influence of the major political parties. The decline in the percentage of the public who identified with the Republican and Democratic parties that began in the 1950s continued during the 1960s and 1970s. In 1952 twenty-two percent of the voters indicated a strong identification with the Democratic party, while thirteen percent indicated such an identification with the Republican party. By 1976, these percentages had declined to fifteen and nine percent, respectively, while the number of voters identifying themselves as independents had risen significantly.

This decline in voter identification with the two major political parties was accompanied by a decline in the importance of the national conventions of the two parties in the selection of presidential candidates. In 1960, only sixteen states selected their delegations to the national party conventions through presidential primaries, but by 1976 thirty states used the primary system for the selection of national party convention delegates, with the result that almost three-quarters of the Democratic national convention delegates and well over sixty percent of the Republican delegates were selected through the presidential primary process. Nominations of presidential candidates were consequently no longer the products of negotiations among party leaders at the national conventions; rather the national conventions merely ratified the selection of a presidential candidate as determined in the presidential primaries. And this decline in the significance of the national conventions was furthered, in the Democratic party, by the adoption of rules during the 1970s diminishing the power of party leaders and requiring proportional representation of women, minority groups, and other constituent groups within the party.

The decline of power of the political parties was furthered by the adoption of federal campaign financing laws in 1971, 1974, and 1976 which limited the amounts that could be contributed to election campaigns by individuals and groups and provided for federal financing of presidential elections. The result was a further diminution of the importance of traditional party organizations to presidential candidates, who increasingly relied upon personal campaign organizations both to win nomination and to conduct their national election campaigns. In a governmental system based upon the separation of powers, the decline of the party system, which traditionally had served to bridge the gap between the executive and legislative branches, could only have profound effects upon the capacity of Presidents to lead as well as upon the formation of national policy.

The period between 1961 and 1977 witnessed an acceleration of a long-term trend toward the centralization of power in the national government, although by the end of the period a significant reaction to this trend had become apparent. Two primary factors contributed to this centralizing trend: increased subsidization by the national government of programs at the state and local levels, and the assumption of responsibility by the national government over vast areas that had traditionally been left to state and local governments.

When John F. Kennedy was elected in 1960, for example, federal grants-in-aid to state and local governments stood at just over seven billion dollars and accounted for approximately fifteen percent of the total expenditures of state and local governments. By 1976, these federal grants-in-aid had mushroomed to almost sixty billion dollars and constituted almost twenty-five percent of total state and local expenditures.

Not only did state and local governments become increasingly dependent financially upon federal largess during this period but the character of federal grant-in-aid programs was also significantly altered. Before the 1960s, federal aid was primarily directed at subsidizing programs identified by state and local governments, but during the 1960s the identification of program needs increasingly shifted to the national government, with federal funds allocated according to national priorities. In addition, many federal grants, especially during President Johnson's War on Poverty program, were distributed at the local community level, by-passing state governors and officials who had traditionally had a voice in the administration of federal grants. As a result of the ensuing outcry from state and local officials, during the late 1960s and 1970s the federal government resorted to the device of block grants to state and local governments, grants involving fewer nationally imposed restrictions on their use and thus allowing the exercise of greater discretionary power by state and local officials. In 1972, Congress also adopted the State and Local Fiscal Assistance Act, which embraced the principle of federal revenue sharing with state and local governments. Despite the greater flexibility allowed state and local decision makers under revenue sharing and block grants, the financial dependence of state and local governments on the national government in 1976 was eight times what it had been in 1960.

During the same period, the federal government's power was significantly expanded through congressional passage of a host of new statutes that expanded the regulatory role of the federal government in numerous new fields. Civil rights, the environment, occupational safety, consumer protection, and many other fields for the first time were subjected to extensive federal regulation. Since almost all of the new regulatory statutes involved extensive delegation of legislative power by Congress to the bureaucracy, the new expansion of federal regulatory authority involved a massive increase in administrative rules and regulations, as the bureaucracy exercised the legislative powers that had been delegated to it.

This increased intrusion of the federal government into the lives and affairs of the public ultimately produced a backlash of hostility toward the federal bureaucracy. John F. Kennedy had campaigned for the presidency in 1960 with the promise to get the country moving again, a promise suggesting an activist role for the national government. Because of the backlash against the expansion of the regulatory role of the federal government, however, presidential candidates in 1976 found that attacks on the federal bureaucracy and the national government as a whole hit a responsive chord with the public and proved to be popular campaign rhetoric.

This unpopularity of the bureaucracy, however, was only one symptom of the American public's shaken confidence in its major political institutions that had become manifest by the mid-1970s. Between 1961 and 1976, one President had been assassinated, one had resigned in disgrace, the long and costly war in Vietnam had concluded in disaster, and the Watergate affair had revealed the betrayal of the public trust at the highest levels of the government as well as abuses of power with sinister implications for the liberties of the American people. Such traumatic events not only undermined public confidence in political institutions but also profoundly affected the course of constitutional development. The office of the presidency, which since the 1930s had evolved into the dominant political institution at the national level, was consequently diminished considerably by 1976 in both power and prestige. Although a resurgence of congressional power had occurred in the 1970s, there was little evidence that Congress was institutionally capable of assuming the role of national leadership previously performed by the presidency, and effective national leadership had been made even more difficult by the decline of the political party system.

The most basic problem confronting the American polity by 1976 was nevertheless the problem of the loss of public confidence in governmental institutions. And the restoration of that confidence was the most profoundly difficult and fundamentally important task American public leadership faced as this period of constitutional development came to a close.

Richard C. Cortner
(1986)

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