Five posts ago I bemoaned the gain of power by the Executive Branch, which I find inconsistent with the original intent of separation of powers under the Constitution. One of the major efforts to limit executive power on foreign policy was the Bricker Amendment, introduced by Senator John W. Bricker of Ohio, an ultra-conservative who had been Thomas E. Dewey’s running mate in 1944. The amendment was proposed in response to the executive agreements made at the Yalta Conference with Stalin that gave away Eastern Europe. Bricker was also concerned due to the decision Missouri v. Holland (1920), in which the Supreme Court ruled that a treaty for migratory birds with Canada superseded the Tenth Amendment. The Bricker Amendment, if adopted, would declare any treaties that contravened the Constitution to be null and void and would require that executive agreements only be effective after approval of both chambers of Congress (Woods).
With a Republican Congress plus Southern Democrats on board with this proposal in 1954, it seemed destined for ratification. Enter Minority Leader Lyndon B. Johnson. Johnson had presidential ambitions and saw the Bricker Amendment as something that could hamstring him in the future, and thus took up common cause with President Dwight Eisenhower in opposition. He considered it “the worst bill I can think of”, and that it would be “the bane of every president we elect” (Caro, 528). Johnson, however, had a dilemma: the Bricker Amendment was popular in an increasingly conservative Texas. He had two goals: 1. Defeat the Bricker Amendment, 2. Do so without appearing opposed. To do so, he had to recruit a respected senator to his side, one with conservative bona fides. Johnson found the perfect man in Georgia’s Walter George. Having served in office since 1922, he had survived an effort by FDR to purge him from the party in the 1938 primary, gaining hero status among Senate conservatives. Johnson convinced George to propose an alternative amendment to the Bricker Amendment that while in character was the amendment, it was also somewhat toned down. After the Bricker Amendment was rejected 42-50, the George substitute was passed 61-30. While it looked for the moment this version was going to pass, LBJ managed to successfully lobby behind the scenes for a reversal, thus the amendment failed by one vote at 60-31. Johnson himself had voted strategically here: he voted against the Bricker Amendment but for the George substitute, when in truth he supported neither version. As Johnson’s aide, Bobby Baker stated, “Had Lyndon Johnson not been the leader of the Senate, the Bricker Amendment would be part of your Constitution today” (Woods, 317). The Supreme Court put some fears to rest in Reid v. Covert (1957), when they ruled that executive agreements cannot contradict federal law or the Constitution. Bricker was embittered by this defeat and he was defeated for reelection in 1958 due to the economy and his unpopular support for a “right to work” law in Ohio.
Relation to the Present
Bringing this example of LBJ’s political prowess back to today, consider the unwillingness of Democrats to attack the fact that Trump has the level of power he currently possesses. Although they will criticize President Trump’s exercise of his power, they don’t want to take any actions that will end up reducing the power of a future Democratic president, which is possible as early as January 20, 2021. Perhaps the Democrats have become wary of changing institutional powers in general. Their most recent experience with this was the invoking of the Nuclear Option on the Senate filibuster, which while it sped up the ability of President Obama to shift the federal judiciary to the left, it also meant that President Trump’s nominees couldn’t be filibustered and opened the door for such option to be extended to the Supreme Court as well. The Imperial Presidency, on questions foreign and domestic, shall continue unabated for the foreseeable future.
Bricker Treaty Amendment Debate. CQ Almanac 1954.
Caro, R. (2002). The years of Lyndon B. Johnson: Master of the Senate. New York: Alfred A. Knopf.
Woods, R.B. (2006). LBJ: Architect of American ambition. Cambridge, MA: Harvard University Press.