The separation of powers in the United States has spawned a great deal of debate over the roles of the President and the Congress in foreign affairs, as well as over the limits on their respective authorities. In recent years, presidents have accumulated power at the expense of Congress as part of a pattern in which, during times of war or national emergency, the executive branch tends to eclipse the legislature.
By: Rana Shahzad Advocate
The US Constitution parcels out foreign affairs powers to both the executive and legislative branches. It grants some powers, like command of the military, exclusively to the president and others, like the regulation of foreign commerce, to Congress, while still others it divides among the two or simply does not assign.
Congressional Powers in Foreign Affairs
Article I of the US Constitution enumerates several of Congress’s foreign affairs powers, including those to “regulate commerce with foreign nations,” “declare war,” “raise and support armies,” “provide and maintain a navy,” and “make rules for the government and regulation of the land and naval forces.”
The Constitution also makes two of the president’s foreign affairs powers – making treaties and appointing diplomats – dependent on Senate approval.
A. General Powers
Congress has some general powers as well. They are: to “lay and collect taxes,” to “draw money from the Treasury,” and to “make all laws which shall be necessary and proper”. These powers, collectively, allow legislators to influence nearly all foreign policy issues. For example, the 114th Congress (2015–2017) passed laws on topics ranging from electronic surveillance to North Korea sanctions to border security to wildlife trafficking. In one noteworthy instance, lawmakers overrode President Barack Obama’s veto to enact a law allowing victims of international terrorist attacks to sue foreign governments.
B. Oversight Role
Congress also plays an oversight role. The annual appropriations process allows congressional committees to review in detail the budgets and programmes of the vast military and diplomatic bureaucracies. Lawmakers must sign off on more than a trillion dollars in federal spending every year, of which more than half is allocated to defence and international affairs. Lawmakers may also stipulate how that money is to be spent. For instance, Congress repeatedly barred the Obama administration from using funds to transfer detainees out of the military prison at Guantanamo Bay.
C. Investigation Powers
Congress has broad authority to conduct investigations into particular foreign policy or national security concerns. High-profile inquiries in recent years have centred on the 9/11 attacks, the Central Intelligence Agency’s detention and interrogation programmes, and the 2012 attack on US diplomatic facilities in Benghazi, Libya.
Furthermore, Congress has the power to create, eliminate, or restructure executive branch agencies, which it has often done after major conflicts or crises. In the wake of World War II, Congress passed the National Security Act of 1947, which established the CIA and National Security Council. Following the 9/11 attacks, Congress created the Department of Homeland Security.
Presidential Powers in Foreign Affairs
The president’s authority in foreign affairs, as in all areas, is rooted in Article II of the Constitution. The charter grants the office-holder the powers to make treaties and appoint ambassadors with the advice and consent of the Senate (Treaties require approval of two-thirds of senators present. Appointments require consent of a simple majority.)
A. Implied Powers
Presidents also rely on other clauses to support their foreign policy actions, particularly those that bestow “executive power” and the role of “Commander-in-Chief of the army and navy” on the office. From this language springs a wide array of associated or “implied” powers. For instance, from the explicit power to appoint and receive ambassadors flows the implicit authority to recognize foreign governments and conduct diplomacy with other countries generally. From the commander-in-chief clause flow powers to use military force and collect foreign intelligence.
B. Statutory Authorities
Presidents also draw on statutory authorities. Congress has passed legislation giving the executive additional authority to act on specific foreign policy issues. For instance, the International Emergency Economic Powers Act (1977) authorizes the president to impose economic sanctions on foreign entities.
C. Legal Backing
Presidents also cite case law to support their claims of authority. In particular, two US Supreme Court decisions — United States. vs. Curtiss-Wright Export Corporation (1936) and Youngstown Sheet & Tube Company v. Sawyer (1952) — are touchstones.
In the first, the court held that President Franklin D. Roosevelt acted within his constitutional authority when he brought charges against the Curtiss-Wright Export Corporation for selling arms to Paraguay and Bolivia in violation of federal law. Justice George Sutherland made expansive interpretation of the president’s foreign affairs powers. The president is “the sole organ of the federal government in the field of international relations,” he wrote on behalf of the court. “He, not Congress, has the better opportunity of knowing conditions which prevail in foreign countries and especially is this true in time of war,” he wrote.
In the second case, the court held that President Harry Truman ran afoul of the Constitution when he ordered the seizure of US steel mills during the Korean War. Youngstown is often described by legal scholars as a bookend to Curtiss-Wright since the latter recognizes broad executive authority, whereas the former describes limits on it. Youngstown is cited regularly for Justice Robert Jackson’s three-tiered framework for evaluating presidential power.
Understanding the Conflict
The political branches often cross swords over foreign policy, particularly when the president is of a different party than the leadership of at least one chamber of Congress. The following issues often spur conflict between them:
1. Military Operations
War powers are divided between the two branches. Only Congress can declare war, but presidents have ordered US forces into hostilities without congressional authorization. While there is general agreement that presidents can use military force to repel an attack, there is much debate over when they may initiate the use of military force on their own authority. Toward the end of the Vietnam War, Congress sought to regulate the use of military force by enacting the War Powers Resolution over President Richard Nixon’s veto. In 2001, Congress authorized President George W. Bush to use military force against those responsible for the 9/11 attacks; and, in 2002, it approved US military action against Iraq. However, in recent years, legal experts from both parties have opined that the president should have obtained additional authorities to use military force in Libya, Iraq and Syria.
Congress can also use its “power of the purse” to rein in the president’s military ambitions, but legislators do not typically take action until near the end of a conflict. During the Vietnam War, lawmakers passed several amendments prohibiting the use of funds for combat operations in Vietnam and neighbouring countries. Congress took similar measures in the 1980s with regard to Nicaragua, and in the 1990s with Somalia.
2. Foreign Aid
Presidents have also balked at congressional attempts to withhold economic or security assistance from governments or entities with poor human rights records. For instance, during the Obama administration, senior US military commanders said that, well-intentioned, restrictions on US aid complicated other foreign policy objectives, like counter-terrorism or counter-narcotics.
Congress began to claim a larger role in intelligence oversight in the 1970s, particularly after the Church Committee uncovered privacy abuses committed by the CIA, Federal Bureau of Investigation, and National Security Agency. Congress passed several laws regulating intelligence-gathering and established committees to supervise the executive branch’s activities in areas including covert operations.
4. International Agreements
The Senate has approved more than 1,600 treaties over the years, but it has also rejected or refused to consider many agreements. After World War I, senators famously rebuffed the Treaty of Versailles, which had been negotiated by President Woodrow Wilson. More recently, a small coalition in the upper chamber blocked ratification of the UN Convention on the Law of the Sea despite the support of both Republican and Democratic administrations. Political hurdles associated with treaties have at times led presidents to forge major multinational accords without Senate consent. For instance, the Paris Agreement on Climate Change and the Iran Nuclear Agreement, both negotiated by President Obama, are not treaties.
The Constitution expressly grants Congress the power to regulate foreign commerce, but lawmakers have for decades provided presidents special authority to negotiate trade deals within established parameters. Renewal of this “fast track” trade promotion authority has become more controversial in recent years as trade deals have become more complex and the debates over them more partisan.
Presidents are constitutionally bound to execute federal immigration laws, but there is considerable debate over how much latitude they have in doing so. More recently, many Democratic lawmakers opined that President Donald Trump overstepped his constitutional and statutory authority when he attempted to block travellers from seven Muslim-majority countries from entering the United States.
Role of Courts
Federal courts, including the Supreme Court, weigh in from time to time on questions involving foreign affairs powers, but there are strict limits on when they may do so. Courts can only hear cases in which a plaintiff can prove that he was injured by the alleged actions of another and can demonstrate the likelihood that the court can provide them relief. For instance, in 2013, the Supreme Court threw out a lawsuit challenging the constitutionality of an electronic surveillance programme, ruling that the lawyers, journalists and others who brought the suit did not have standing.
Another form of judicial restraint turns on the “political question” doctrine, in which courts decline to take sides on a major constitutional question if the judges say its resolution is best left to the president or Congress. For instance, in 1979, the Supreme Court debated whether to hear a case brought by members of Congress against the administration of President Jimmy Carter. The lawmakers claimed that the president could not terminate a defence pact with Taiwan without congressional approval. The court dismissed the case after a majority of justices found the underlying issue to be a political question, and thus outside the scope of their review.
However, the Supreme Court has weighed in on several cases related to the detention of terrorism suspects at the US military prison in Guantanamo Bay. More recently, the court took on a dispute between the Obama administration and Congress over the recognition of Israeli sovereignty over Jerusalem. “It is for the president alone to make the specific decision of what foreign power he will recognize as legitimate,” the court held.
Presidents have accumulated foreign policy powers at the expense of Congress in recent years, particularly since the 9/11 attacks. The trend conforms to a historical pattern in which, during times of war or national emergency, the White House has tended to overshadow Capitol Hill.
Presidents have many natural advantages over lawmakers with regard to leading on foreign policy. These include the unity of office, capacity for secrecy and speed, and superior information.
Meanwhile, beyond legislation, there are a number of ways Congress shapes US foreign policy. For instance, policymakers can significantly alter executive branch behaviour simply by threatening to oppose a president on a given foreign policy issue.
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