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The President’s Foreign Affairs Power

Published online by Cambridge University Press:  27 February 2017

Phillip R. Trimble
Phillip R. Trimble*
Affiliation:
University of California, Los Angeles
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Extract

In the wake of Vietnam and Watergate, Congress set out to attack the imperial Presidency and to recapture its “historic constitutional role” in foreign policy. The tools of congressional activism included the National Commitments Resolution, the War Powers Resolution, the Case Act, the legislative veto over arms sales and nuclear exports, trade restrictions aimed at the Soviet Union and regulation of intelligence activities. In response, Presidents Carter and Reagan charged that Congress was invading presidential prerogatives. Joined by former executive branch officials and academic commentators, they saw an imperial Congress and believed the solution was a strengthened Presidency.

Type
Distribution of Constitutional Authority
Information
American Journal of International Law , Volume 83 , Issue 4 , October 1989 , pp. 750 - 757
Copyright
Copyright © American Society of International Law 1989

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References

1 See generally The President, The Congress and Foreign Policy (E. Muskie, K. Rush & K. Thompson eds. 1986) [hereinafter Muskie, Rush & Thompson]; L. Berman, The American Presidency (1987); J. Sundquist, Constitutional Reform and Effective Government (1986). For the historical background, see generally L. Fisher, Constitutional Conflicts Between Congress and the President (1985); J. Sundquist, The Decline and Resurgence of Congress (1981) [hereinafter Decline and Resurgence]; and T. Franck & E. Weisband, Foreign Policy by Congress (1979).

2 Ely, Suppose Congress Wanted a War Powers Act That Worked?, 88 Colum. L. Rev. 1379 (1988).

3 Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J. 1255, 1258 (1988).

4 See generally J. Rourke, Congress and the Presidency in U.S. Foreign Policymaking—A Study of Interaction and Influence, 1945–1982 (1982). See also J. Gaddis, The United States and the Origins of the Cold War, 1941–1947 (1972); Johnson, Japanese-Chinese Relations, 1952-1982, in Japan and the Pacific Quadrille 107, 108–09 (H. Ellison ed. 1987); Oksenberg, Congress, Executive-Legislative Relations and American China Policy, in Muskie, Rush & Thompson, supra note 1, at 227 (“The influence of Congress on China policy has been much greater than is ordinarily thought,” recalling Chinese Exclusion Act, McCarthy and Fulbright hearings, “sense” resolutions, personal pleas and influence over appointments).

5 See C. Rossiter, The American Presidency 36–40 (2d ed. 1960; issued with new introduction 1987).

6 J. Sundquist, Decline and Resurgence, supra note 1, at 155.

7 See generally C. Rossiter, supra note 5; L. Fisher, Presidential Spending Power (1975).

8 See Ely, supra note 2.

9 See generally D. Mayhew, Congress: The Electoral Connection (1974).

10 The comment was made to the author when he served on the staff of the committee.

11 Cf. Barton, Formulating and Implementing America’s Foreign Policy: What Role for Congress? (Book Review), 58 Tex. L. Rev. 1015 (1980) (calling attention to Congress’s tendency to logroll on behalf of special constituencies, without calculating the overall national interest, and to appear to be taking action while avoiding responsibility).

12 See generally T. Franck & E. Weisband, supra note 1.

13 The courts should still be prepared to intervene in cases threatening individual constitutional rights. See J. Choper, Judicial Review and the National Political Process (1980).

14 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–37 (1952) (Jackson, J., concurring).

15 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

16 See, e.g., Ely, Democracy and Distrust (1980).

17 To elaborate this point, it is necessary to grapple with several issues beyond the scope of this essay, including the unusually conspicuous relationship of law and politics in this context, the extent to which members of Congress follow principles of constitutional law in their decisions, the role of original intent in whatever method of constitutional interpretation seems appropriate and whether there is any meaningful pattern to the congressional-presidential decisions taken since World War II. The judgments expressed in this essay are based on secondary sources, congressional studies, hearings, reports and other documents, and executive branch sources, but not on a day-to-day reading of the Congressional Record.

18 See, e.g., 42 Op. Att’y Gen. 3 (1960) (President may conclude agreement waiving U.S. sovereign immunity in foreign courts, but cannot subject United States to liability in excess of amounts authorized by Congress); 42 Op. Att’y Gen. 421 (1970) (may reschedule debt unless prohibited by Congress).

19 S. Res. 99, 93d Cong., 1st Sess., 119 Cong. Rec. 12,102–03 (1973). The Department of State opposed the resolution, citing historical practice against using the Senate as a “council of advice.” See 1973 Digest of United States Practice in International Law 172–76 (A. Rovine ed.).

20 1975 Digest of United States Practice in International Law 436–38 (A. Rovine ed.). The Department stated that the amendment would not be a proper subject for congressional action, quoting Curtiss-Wright. The House-Senate conference substituted a provision dealing with the proposed treaty instead of the negotiation. The House at first rejected the conference report, but then reversed itself.

21 See, e.g., 41 Op. Att’y Gen. 507 (1960) (Congress rejected amendment purporting to deny appropriations when Secretaries of State declined to give Congress information regarding communications with foreign governments); 43 Op. Att’y Gen., No. 4 (Sept. 4, 1975) (Senate Banking Committee declined to adopt amendments requiring Commerce Department to give Congress confidential information relating to trade with Communist nations, noting two similar examples); Agreement on Trade Relations between the United States and the People’s Republic of China: Hearing Before the Subcomm. on International Trade of the Senate Comm. on Finance, 96th Cong., 1st Sess. 30–32 (1979); Resolution of Inquiry Concerning the U.S. Vote in the U.N. Security Council on Israeli Settlements in the Occupied Territories: Hearings Before the House Comm. on Foreign Affairs, 96th Cong., 2d Sess. 52–53, 60, 81 (1980). But see H. Rep. No. 597, 98th Cong., 2d Sess. (1984) (Reagan apparently sent up information dealing with diplomatic communications regarding Grenada).

22 See Congressional Oversight of Executive Agreements: Hearings Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 94th Cong., 1st Sess. (1975). Even executive opponent Sen. Abourezk conceded that the President “has the sole authority, but not to implement the agreement.” Id. at 223.

23 See Taiwan: Hearings Before the Senate Comm. on Foreign Relations, 96th Cong., 1st Sess. 85 (1979).

24 See Dames & Moore v. Regan, 453 U.S. 654 (1981).