Congress and Foreign Policy
CONGRESS AND FOREIGN POLICY
Congress has three principal functions. As a forum for debate, it is a vital instrument for creating and crystallizing public opinion, the source of all legitimate governmental power and policy in a democratic society. Through the investigatory power of its committees, it is the grand inquest of the nation, watching society and government with an eye for new and emerging problems. And it has the sole power of legislation on certain subjects, qualified only by the President's veto. All three aspects of Congress's work are important to its activities in the field of foreign affairs. This article, however, will concentrate on Congress's role in legislation and its attempt to become a major participant in administration, the only area of its foreign policy agenda currently generating serious constitutional problems.
The Constitution divides the task of making and carrying out foreign policy in accordance with the rule that except where the Constitution provides otherwise, Congress is vested with the legislative part of American foreign policy and the President with the executive portion. Articles I and II mention certain subjects that illustrate the distinction between "legislative" and "executive" functions, and Article I, section 6, paragraph 2, provides that "no person holding any office under the United States shall be member of either House during his continuance in office." In a sentence focused on safeguards against corruption of the governmental process by either Congress or the President, paragraph 2 reveals the clear expectation that the new American constitutional order was not to be a cabinet government, but that Congress and the executive were to be separated institutionally as well as by function. During the period of drafting the Constitution, the presidency was deliberately made unitary rather than plural. And much was said and written about an executive capable of "energy, secrecy, and dispatch," as contrasted with a deliberative legislature not directly involved in the execution of the laws.
Drawing a line between the legislative and executive spheres has been conspicuously difficult in the area of foreign policy, however. One reason why this should be so is that foreign policy includes much more than the passage of statutes and the negotiation of international agreements and their subsequent execution. Much foreign policy is necessarily made in the ordinary course of diplomacy. And from the beginnings under the Constitution of 1787, the President has been recognized as the sole agent of the nation in its dealings with other states. He alone receives ambassadors and, from time to time, declares them unacceptable and sends them away. The power to recognize nations and to withhold recognition was accepted early as entirely presidential. The President is the chief diplomat of the nation; he smiles and frowns, speaks or remains silent, warns, praises, protests, and negotiates.
Even when diplomacy results in treaties that require approval by the Senate before ratification or in executive agreements, which the President may or may not submit for a congressional vote, the process of making foreign policy is more heavily influenced by the President than is the passage of most statutes, which make policy in advance of action. The President can shape the circumstances in which issues of foreign policy come before Congress more often and more effectively than he can in dealing with issues of domestic policy. On the other hand, the negotiating process has its own constitutional pitfalls. If the Senate has to consent to the ratification of a major treaty or if Congress must pass enabling legislation in support of a treaty or executive agreement, members of Congress may be surly and uncooperative if they have not somehow participated in the negotiations themselves within or even beyond the limits of Article I, section 6, of the Constitution. Since the failure of the Versailles Treaty in 1919, every President has sought to anticipate the problem through briefings, consultations, or even membership or observer status for senators on negotiating delegations. If, on the other hand, members of Congress are suitably consulted about the instructions given to the negotiators and the ultimate bargain falls short of the goals specified in the instructions, pitfalls of another kind appear. The relation of Congress and the President in the making and ratification of treaties and executive agreements has therefore been a major political and constitutional irritant at least since 1795, when jay ' streaty was barely ratified.
alexander hamilton took the view that the executive, legislative, and judicial powers were to be distinguished by their "nature." The executive power, he said, is all governmental power that is neither judicial nor legislative in character. From this somewhat circular eighteenth-century axiom, Hamilton, thomas jefferson, and john marshall drew a conclusion that has been of critical importance to constitutional interpretation ever since. Where a power is executive in character, Hamilton wrote, it is deemed to be presidential unless that conclusion is excluded by the constitutional text. In such cases, presidential supremacy is the rule and congressional authority the exception, and exceptions are to be strictly construed. The same rule of construction applies when powers are characterized as legislative or judicial. Here, too, the granted power is to be construed broadly, and the exceptions narrowly.
This rule is not without its modern critics. A few recent writers have urged that Congress be considered the supreme institution of government in all realms, and not only in the legislative sphere. They forget that the Constitution of 1787 was composed and adopted by men who found congressional supremacy under the articles of confederation an unsatisfactory mode of government. The only reason such critics offer for their conclusion is that the United States is "a republic which has become a democracy" and that the imperious rise of modern democracy makes presidential and perhaps even judicial independence an anachronism.
In making and carrying out foreign policy, Congress and the President are forced to work together: neither Congress nor the President can conduct foreign policy alone for long. Sooner or later, a President will need money, new statutes, or both. And, as presently constituted, Congress is incapable of conducting diplomacy or commanding the armed forces, save by sporadic intervention in highly charged episodes. The history of American foreign policy is therefore necessarily the history of a rivalrous and uneasy partnership between Congress and the President, with occasional intervals of harmony and a few of utter frustration, such as woodrow wilson's tragic final days.
The normal congressional impulse to nibble at the President's executive authority has gained momentum in recent years from four major sources. The first and perhaps the most important has been the growth in congressional staff, which goes back to the Legislative Reorganization Act of 1946. Before that fateful reform was adopted, Congress and its committees relied largely on the administration of the day for assistance in research and drafting. The Congressional Research Service of the Library of Congress provided some supplemental help, but until the recent past, that service was extremely small. Today, congressional staffs include 35,000 people, and the Congressional Research Service, several hundred more.
The influence of an able young congressional staff on the relations between Congress and the President has been reinforced by a second source of congressional ascendency: the modern habit of electing a Democratic Congress and a Republican President. The habit has been rather popular with the voters, but has decidedly negative features. For example, it encourages partisan irresponsibility on the part of Congress even on major national issues, especially in the field of foreign affairs.
These two tendencies together produce a third: the practice of writing long and elaborate statutes intended to control the President and the courts in detail as they apply statutes and treaties to new situations. As an astute observer recently noted, one of the most influential statutes ever enacted by Congress, the sherman antitrust act, consists of six brief paragraphs occupying less than half a page, whereas statutes now tend to be hundreds, if not thousands, of pages long.
Fourth and finally, congressional attacks on the President's prerogatives in the field of foreign affairs draw strength from widespread protest against the foreign policy the United States has pursued since 1945. That protest is based on a nostalgic yearning for the neutrality and comparative isolation of the United States during the century between 1815 and 1914.
These flows of change were suddenly accelerated in the late 1960s and early 1970s by the growing unpopularity of the vietnam war and the watergate scandal. Protest movements against the war in Vietnam became ominous. In turn, this phenomenon led Congress to move decisively both to stop "Johnson's War" and to alter the traditional constitutional balance between Congress and the President so that such "presidential" wars could never happen again. Thomas M. Franck and Edward Weisbard call this vague and many-sided movement a congressional revolution that has radically redistributed the foreign affairs powers in favor of Congress at the expense of the presidency. Foreign policy, they proclaim, will now be made by "co-determination," without regard to the distinction between legislative and executive functions. The Bastille Day of the congressional revolution, they say, was June 29, 1973, the day when President richard m. nixon surrendered to a congressional effort to end the American military involvement in Indochina and promised to stop bombing in Cambodia. "With that sullen concession, power over foreign policy shifted: from the imperial President and his discreet and decorous professional relations managers to the undisciplined, rambunctious rabble of the House and Senate."
The power to end wars by armistice and cease-fire agreements had always been regarded as part of the President's authority as commander-in-chief. In the case of the Vietnam War, however, the explosion of opinion against the war and the coincidence of the Watergate scandal and the revulsion it produced against President Nixon led to the success of Congress's attempt to end the war independently by using its power over appropriations and forcing a gravely wounded President to acquiesce in its action. This extraordinary conjuncture of political forces also permitted Congress to override President Nixon's veto of the war powers act.
Actually, the revolt of Congress against the Hamiltonian conception of the presidency began long before the explosion of opinion against the Vietnam War and President Nixon. A key weapon of Congress in that battle was, and remains, the legislative veto in all its forms. The legislative veto was invented in 1932. It allows Congress to overrule presidential constructions and applications of existing law by concurrent resolution, that is, to reverse purely executive actions without having to confront the President's veto power. Since that time, the practice had spread throughout the statute books, but particularly in the realm of foreign policy. The Lend-Lease Act of 1941, for example, contained a legislative veto provision, stipulating that Congress could terminate the act by concurrent resolution. President franklin d. roosevelt thought the provision unconstitutional, but acquiesced in it silently because the act was of transcendent importance, and it was by no means clear that it would have passed without the legislative veto.
During the prolonged struggle between Congress and the President over foreign policy during the 1960s and 1970s, legislation of this kind became a flood. That legislation attempted to control presidential discretion in interpreting and applying statutes and treaties not only by concurrent resolutions passed by both houses but also by veto-free delegations of executive power to one house and even to particular committees of either house.
The Supreme Court held the legislative veto unconstitutional in immigration and naturalization service v. chadha (1983), but Congress has not yet seriously undertaken to comply with the decision by removing from the books more than 200 statutes directly affected by it. Indeed, Congress is still defying the Court by passing or seriously considering bills that would openly violate the rule of the decision.
How far can Congress go in using its power of the purse as a sword in its struggle to seize executive power? In the past, both political usage and Supreme Court opinions made clear that the appropriations power had constitutional limits. Several congressional conditions on the spending of appropriated funds have been ruled or declared to be unconstitutional in cases that include united states v. lovett (1946), myers v. united states (1926), United States v. Klein (1872), and flast v. cohen (1968). Congress's recent experiments with expanded uses of its appropriations power have stimulated original and provocative law review articles suggesting that the President now has the power to use a line item veto and a limited power to spend in emergencies without prior appropriations and that Congress cannot use its appropriations power to prevent the President from carrying out his constitutional duties. Future constitutional development along some of these lines would be a normal response to perceptions of a congressional thrust for excessive power.
Twelve years after Franck proclaimed the success of what he regarded as Congress's wholesome and cleansing revolution, it is clear that while much has changed, his optimism was premature. Whether the congressional attempt to transform the constitutional relationship between Congress and the President in the field of foreign affairs will prevail in the end remains to be seen. Institutions 200 years old normally reflect the necessities of function. As Franck remarks, if Congress demonstrates that it cannot in fact use its new powers or if its key members are unwilling or unable to devote the necessary time and attention to their new foreign policy responsibilities, "power will run off Capitol Hill."
What is clear, however, is that the historical conflict between Congress and the President about the making and implementation of foreign policy has changed fundamentally. It is no longer the push and pull of a natural tug of war between the legislative and executive branches, operating within the framework of well-understood rules and habits. Congress has been pressing with new determination to take over executive functions in many areas of government, and particularly in foreign affairs. The constitutional balance between Congress and the President has shifted so radically that "the inevitable friction" about which Justice louis d. brandeis wrote in Myers v. United States has become war, marked both by episodes of bitter hostility and by a slow presidential retreat that is transforming the President into a prime minister or constitutional monarch, ceremoniously presiding over an increasingly strong Congress. Whether we describe this transformation as a glorious revolution or as a constitutional crisis is immaterial. What is at stake in the battle is far more than constitutional piety or even the effectiveness of government, important as it is. What is at stake is the future of liberty. The accumulation of the legislative and executive powers in the same hands, as Jefferson, james madison, and others have said over the years, is "the very definition of tyranny."
The powers of the presidency have not been formally annulled. They are still latent in the bloodstream of the government. But they encounter more and more resistance each time a President tries to use them. As a result, the presidency is being stripped of some of its more important prerogatives.
If the present trends are not reversed by the courts, the President will soon be wrapped like Gulliver in a web of regulatory statutes and hopelessly weakened. Although the President has the sole constitutional authority to conduct foreign relations, congressional leaders sometimes negotiate independently with foreign governments, as they have done recently with Nicaragua, for example. Substantive riders on appropriations bills and other devices to evade the President's veto power are more popular than ever. Congress has already put the President under the control of a congressional cabinet in the exercise of his responsibilities for intelligence and is actively considering applying that model to the process of making "presidential" decisions about the use of force and foreign policy more generally. If that possibility should materialize, the presidency the nation has known since 1789, the presidency of abraham lincoln and Franklin D. Roosevelt, would be no more.
The Persian Gulf crisis of 1990–1991, however, demonstrated once again the functional necessity for the historic powers of the President. The abject failure of Congress to manage that episode should do much to restore the constitutional balance.
Eugene V. Rostow
Crabb, Cecil V., Jr. and Holt, Pat 1989 Invitation to Struggle: Congress, the President, and Foreign Policy, 3rd ed. Washington, D.C.: Congressional Quarterly Press.
Fisher, Louis 1985 Constitutional Conflicts Between Congress and the President. Princeton, N.J.: Princeton University Press.
Rostow, Eugene V. 1989 President, Prime Minister, or Constitutional Monarch? Washington, D.C.: National Defense University Press.
Wilson, Woodrow (1885) 1967 Congressional Government. Cleveland, Ohio: Meridan Books.