A Constitutional Structure for Foreign Affairs

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 19 No. 4

A Constitutional Structure for Foreign Affairs

Louis Fisher

Introduction

It is conventional, and I suppose convenient, to divide scholars on the war power and foreign affairs into "pro-congressionalists" and "pro-presidentialists." Their writings may seem to demonstrate a sympathy for one branch over another. However, scholarship is shallow if it merely latches itself onto one branch of government while shooting holes in the other. Analysis of the war power and foreign affairs demands a higher standard: recognizing institutional weaknesses along with institutional strengths, appreciating that the democratic process requires deliberation and collective action, and promoting policies that can endure rather than attempting short-term, unilateral solutions that fail. Moreover, the important point is not which branch has the political power to prevail. If that were the standard, we would always side with autocratic and even totalitarian regimes, or perhaps, in the current United States, an elected monarch. More fundamental to the discussion are the principles and procedures that support and sustain constitutional government.

In his book, The President's Authority Over Foreign Affairs: An Essay in Constitutional Interpretation, Professor H. Jefferson Powell challenges us to think deeply and carefully about the allocation of foreign affairs that would best keep faith with constitutional principles.[1] Part I of this Article discusses the constitutional framework that guides my writing. Part II identifies what I consider to be the core values that define a republican form of government. Part III focuses on the location of the foreign affairs power, followed by Part IV, which concerns the President as "sole organ." Parts V and VI discuss the treaty-making power and the power to initiate war, respectively. I close with some observations about the way that Professor Powell's framework for foreign affairs and the war power has an impact on democratic, constitutional government.

I. Shouldn't We Be Constitutionalists?

Instead of placing scholars in rival camps and assuming there are only two communities to join and support, the focus should be on the overarching constitutional values that trump the needs of a particular branch. There is no purpose or virtue in reflexively championing one branch over another. While Professor Powell speaks about the "current impasse between the defenders of presidency supremacy and the advocates of congressional supremacy in foreign affairs,"[2] these camps exist more as a rhetorical tool than a reality. I do not believe he would defend presidential supremacy at every turn, and my record is hardly one that advocates congressional supremacy in foreign affairs. If we do our work conscientiously, those who emphasize legislative powers in foreign affairs will recognize the many practical limitations that exist within Congress, just as those who raise high the banner of presidential supremacy should draw the line on executive actions that are sheer folly.

I am not "pro-congressional" in the sense that I defend whatever Congress does, any more than Professor Powell, in the "pro-presidential" camp, would try to justify any and all actions by a President. If I were "pro-congressional," I would willy-nilly support the War Powers Resolution of 1973 because of its reputation for "reasserting" legislative authority and placing constraints on the President. Instead, along with David Gray Adler, I find the statute so offensive to the Constitution that I advocate its repeal.[3]

Even though I have worked for Congress for more than three decades, I feel no obligation to defend bills that Congress will soon pass. I am not a partisan for one side or the other. Committees expect me to testify on the merits, which means that I inevitably disappoint some lawmakers while I please others. They are accustomed to hearing different sides. Only once, in the course of testifying more than three dozen times, do I recall a committee that consciously stacked a hearing. The chairman asked me to be the lead witness, but when he saw that my analysis of the three constitutional issues he flagged was contrary to what he wanted, he withdrew the invitation and even omitted my statement from the published hearings. So it goes. One such experience in thirty-two years is clearly an exception to the rule.

Congressional hearings are generally serious explorations of public issues, with witnesses at liberty to state their views. I wonder if proposals in the executive branch get the same kind of full airing. How many punches are pulled to "stay within the fold?" Of course, executive officials disagree about constitutional issues and debate the merits of various positions, but some boundaries are not likely to be tested or challenged, particularly after the President or a department head has announced some core beliefs. Moreover, each department has precedents that will generally hold sway.

In testifying before congressional committees, I suspect that most of my presentations have been critical of bills and constitutional amendments that are under consideration. In several instances, I have advised committee members that the bill about to be reported to the floor represents an unconstitutional encroachment on presidential power,[4] or that it unconstitutionally weakens the independent judiciary.[5] How often does someone in the executive branch oppose a policy because it would weaken Congress or the judiciary? Why should I, a staff member of Congress, care about the other branches? Why not let them fend for themselves? The answer is that all of us have a stake in something greater than our particular institution. We need to defend the larger constitutional system because it is there to protect us and our fellow citizens.

What I describe here about myself is true for the agencies that Professor Powell has worked for, particularly the Office of Legal Counsel (OLC) in the U.S. Department of Justice. In the 1980s, at the urging of the Wall Street Journal, the Reagan and Bush administrations explored the existence of an inherent "item veto" that empowered the President to veto particular provisions in a bill without waiting for statutory or constitutional authority.[6] Some scholars spoke in favor of this power, while others found it nonexistent.[7]

One might have expected OLC attorneys to find a way (and have a reason) to justify this expansion of presidential power. However, Charles Cooper, as OLC head, authored a lengthy memo that found no legal or constitutional support for an inherent item veto.[8] The concept was not merely shallow. It was hollow. Empty. Despite Cooper's thorough analysis, several dozen members of Congress urged President George H. W. Bush to use the inherent item veto and test it in court.[9] However, in 1992, President Bush announced that his constitutional advisers had convinced him that there was no legal support for an inherent line-item veto: "our able Attorney General [William Barr], in whom I have full confidence, and my trusted White House Counsel [C. Boyden Gray], backed up by legal opinions from most of the legal scholars, feel that I do not have that line-item veto authority. And this opinion was shared by the Attorney General in the previous administration."[10] This was a victory for constitutional government.

II. Identifying Core Values

Just as I object to Congress weakening the other branches, so do I oppose other branches weakening Congress. Like the Framers, I recoil from seeing power packed in a single place. I believe that checks and balances are vital to individual liberty and stable government. I do not accept that the President is both Commander-in-Chief and War Initiator. The Framers wanted those two powers placed in separate branches, and so do I. That eighteenth-century value applies equally well, if not more so, to the twenty-first century.

Similar to my opposition to the concentration of power in the presidency, I oppose self-serving claims by the Supreme Court that it, and it alone, determines the meaning of the Constitution. These claims have never been true and never should be true.[11] A republic abhors finality in any branch. The Court is no more the "final voice" on constitutional matters than is the President the "sole organ" of foreign affairs. Yes, there are some "exclusive" powers allocated to the three branches. The Court alone decides what is a case or controversy. Congress alone decides whether to appropriate funds. The pardon power belongs solely to the President.[12] However, we cannot, in a constitutional republic, allow the President primacy in determining foreign policy or initiating war.

Professor Powell speaks about the importance of a republic: "American foreign policy should be constituted, not by lawyers' arguments, but by democratic debate over the interests, and the responsibilities, of the Republic."[13] Two important values should limit presidential primacy in foreign affairs: democratic debate and the maintenance of a republic. Without democratic debate, there is no republic and no Constitution. Unfortunately, we know the word "republic" but have probably forgotten its meaning. The word is familiar because it appears in our Pledge of Allegiance: "I pledge allegiance to the Flag of the United States, and to the Republic for which it stands . . . ."Notice the words. The important part of the pledge is not the flag. It is what the flag stands for-- a republic. If we lose the qualities associated with a republic, the flag and the Pledge also lose their meaning. They would stand for nothing.

In creating a republic, the framers broke decisively with the monarchical principles promoted by writers such as William Blackstone. In his Commentaries on the Laws of England, he gave all of foreign affairs and the war power to the Executive, who had the sole power to make war, send and receive ambassadors, make treaties, issue letters of marque and reprisal (authorizing...