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...