Are We Changing The Law Governing The Presidency?

Must we acknowledge that previous presidents over the course of American history abided practices, strategies and customs similar to those of Presidents in the modern era? And, similarly, if these principles and practices are centuries old, must we acknowledge that we are imposing a revision of the legal standards governing the presidency if we sanction modern presidents for ages old conduct?

One example of the foregoing would be the foreign policy of President John Tyler, the 10th president from 1841 until 1845. President Tyler confronted the issue of possession by the United States of only part of the Northern American continent and not the Pacific Northwest which was occupied by Britain and Mexico. President Tyler sought these territories, Oregon from Britain and California from Mexico.

Initially, President Tyler proposed a tripartite treaty wherein America would forego 2 million dollars of its claims against Mexico in exchange for California, north of the thirty-second parallel. Britain would be asked to support these terms in exchange for a favorable determination of the Oregon boundary without warfare, one at the Columbia River. Yet, this treaty proposal was not successful. Mexico sought to retain California, and British officials did not wish to unduly pressure Mexico to accept America’s terms.

President Tyler still wished to resolve the issue of ownership of the Northern American continent without warfare. He proposed a tripartite commercial treaty involving the lowering of tariffs. President Tyler sent a private citizen, Duff Green, at government expense to Britain. He informed the American Ambassador to Britain, Edward Everett, that it would be Green’s role to be of substantial service in negotiations.

Even earlier, President Tyler and his Secretary of State, Daniel Webster, contracted with a private entrepreneur, Alfred Benson, to transport Americans seeking residence in Oregon. They were transported with government funds.

In sum, President Tyler engaged in significant acts of foreign relations without Congressional approval or oversight. If we in the 21st century, rather than those of Tyler’s 19th century, are to assert that these types of entreaties into formal resolution of policy issues and disputes are improper, we should have an understanding that we are imposing a new legal standard upon existing custom.

Lori Gayle Nuckolls

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