Foreign Affairs (Update)

• Author: Phillip R. Trimble
• Pages: 1078-1081

Page 1078

In the last decade of the twentieth century there have been several important developments in the constitutional balance affecting U.S. foreign relations. The most conspicuous changes have involved the relative power of the Congress (especially the U.S. SENATE) and the President. The political weakness of President WILLIAM J. CLINTON has permitted a resurgence of the Senate Foreign Relations Committee and a significant expansion of the Senate's role under the TREATY POWER, with a corresponding diminution of executive authority with respect to that power. Congress has also continued to use its LEGISLATIVE POWER and appropriations

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power to specify details of foreign policy (maintaining a trend beginning with the Democratic Congress elected after WATERGATE). With respect to the WAR POWERS, Clinton has continued the past practice of executive-initiated uses of military force in limited engagements where the risk of American casualties was small. However, Clinton seems to have been especially cautious in this area. He has defended executive authority under the Constitution less vigorously than his immediate predecessor, GEORGE H. W. BUSH. Finally, the Supreme Court has revived judicial enforcement of principles of FEDERALISM, which in turn may call into question the virtually unlimited scope (subject to the BILL OF RIGHTS) of the federal treaty power. The basic lines of authority among the political branches, and the near total formal supremacy of the federal government over the states in foreign affairs, continued to be well established and uncontroversial. Political controversy affects issues at the margins, but the political weakness of the Clinton administration illustrates the vulnerability of EXECUTIVE POWER to the vicissitudes of domestic politics.

The Chair of the Senate Foreign Relations Committee, Senator Jesse Helms of North Carolina, has used his influence in recent years to block important ambassadorial appointments by Clinton, most predominantly when he blocked Clinton's nominee for Ambassador to Mexico. By declining to schedule hearings on important appointments and treaties, he also forced a reorganization (and diminution in stature) of that part of the executive branch dealing with arms control and foreign economic assistance. In 1999, the Senate rejected U.S. adherance to the Comprehensive Nuclear Test Ban Treaty, which had been a central part of the Clinton foreign policy program. In addition, the Senate has asserted its power in significantly expanded ways to attach conditions to its resolutions of ratification to arms control and INTERNATIONAL HUMAN RIGHTS treaties in ways unappealing to the executive branch. For example, the Senate has attempted to assure that no U.S. domestic law will be affected by human rights treaties. By attaching extensive and detailed conditions to arms control treaties the Senate has also successfully asserted its prerogative, albeit over protests by Clinton, in four distinct areas.

Historically, the executive branch has concluded treaty amendments of a technical, administrative, or minor substantive nature, on the basis of its own constitutional authority, and has likewise adjusted treaty relations to take account of the break-up of states and state succession. In addition, the executive branch has historically exercised the prerogative of determining whether to seek required legislative support for international agreements through the Article II procedure or, alternatively, through an act of Congress. In its interaction with the Senate over adjusting two major arms...