Post by the Scribe on Mar 10, 2020 11:42:06 GMT
GOP (AND TRUMP) TALKING POINT: U.S. FOREIGN POLICY IS WHATEVER TRUMP SAYS IT IS
THE BATTLE FOR THE CONSTITUTION
Foreign Policy Isn't Just Up To Trump
The president’s defenders argue that U.S. foreign policy is whatever he says it is. Trouble is, that’s not what the Constitution says.
6:00 AM ET
Deborah Pearlstein
Professor of law at Yeshiva University
www.theatlantic.com/ideas/archive/2019/11/congresss-constitutional-role-us-foreign-policy/602485/
The U.S. capital surrounded by leaves
MOLLY RILEY / REUTERS
While House Republicans struggled all week to develop a coherent explanation for President Donald Trump’s conduct in the Ukraine affair, they coalesced around at least one message they seemed certain would bolster their case. As Representative Elise Stefanik put it: “The person who sets the policy of the United States is the president.” In her view—and that of others who made the same case—the Constitution gives the chief executive power over foreign affairs, end of story. The whole idea that the president had done something to undermine U.S. foreign policy, as Ambassador William Taylor, Lieutenant Colonel Alexander Vindman, and the former National Security Council official Fiona Hill had argued, was itself illogical.
This argument might have more bite if the Constitution actually gave the president sole authority to set all of U.S. foreign policy. It’s easy to see where this idea came from. Popular historical accounts describe an “imperial presidency” that regularly deploys military force with no regard for congressional preferences. Executive-branch lawyers regularly invoke memorable (if not legally meaningful) judicial rhetoric about the president’s signal role in foreign affairs. Perhaps, then, it follows quite naturally that only a third of American college students can correctly identify Congress as the branch of the U.S. government with the power to “declare war.”
Yet as the Supreme Court said pointedly just a few years back in rejecting the notion that the president is the “sole organ of the federal government in the field of international relations,” the Constitution recognizes no such “unbounded power.” On the contrary, the legislature’s power to influence and even control U.S. foreign policy decision-making is vast, and certainly vast enough to support the uniform view the witnesses expressed: U.S. support for Ukraine is a central pillar of U.S. foreign policy, and the president is undermining that policy, not legitimately setting a new one.
First principles first. The Constitution expressly allocates to Congress a lengthy list of foreign affairs-related powers, not only to declare war, but also to regulate commerce with foreign nations, define and punish offenses against the law of nations, make rules for the government and regulation of the armed forces, appropriate funds to provide for the common defense, and indeed make “all laws which shall be necessary and proper for carrying into execution” any of those powers, among others.
The list of foreign-affairs powers the Constitution allocates to the president is, in contrast, quite brief and—far more important, as the Supreme Court has long and repeatedly explained—dependent “upon their disjunction or conjunction with those of Congress.” While the scope of some of the president’s powers may be reasonably broad, the president is on the thinnest possible constitutional ice when he takes steps “incompatible with” views Congress has expressly or impliedly made known. As Justice Robert H. Jackson famously explained in the Steel Seizure case during the Korean War, our constitutional equilibrium is one that ensures the president is bound by the duly enacted laws of the United States.
Far from understanding these powers to be more constrained in the realm of foreign affairs or national security, the Constitution’s Framers recognized the power to appropriate money in particular as an especially important check on the executive’s ability to exercise U.S. military power. Determined to learn from the negative example of the British military—which had quartered soldiers in private homes and clashed repeatedly with colonists—the Framers thought it essential that control over the military not be vested in an executive alone. Thus, in addition to giving Congress the power to raise, support, and regulate armies, the Constitution expressly requires members of Congress to authorize military expenditures “in the face of their constituents” every two years, ensuring that the government’s most profound power remained squarely in the hands of “the representatives of the people.” Military leaders at the time favored this approach as well, as they feared being made the political scapegoat of civilian policy decisions. When it came to matters at the core of American national security, Congress was to play a central role.
Given this history, it should be unsurprising that Congress has repeatedly enacted legislation in the modern era prohibiting the use of funds to support various U.S. military activities abroad, or setting conditions on the distribution of security assistance to allies, effectively altering the course of U.S. foreign policy. And in response, presidents have complied.
Read: House Democrats want to investigate Trump’s foreign policy www.theatlantic.com/international/archive/2018/11/house-democrats-investigate-trump-foreign-policy/575401/
This is in part why the current president’s critical—and apparently unlawful—delay in delivering congressional authorized security assistance to Ukraine is so extraordinary. As it has done in countless other statutes, Congress insisted in the Ukraine security-assistance law that the Pentagon certify that the aid could be appropriately delivered, and the Pentagon had so certified. The Office of Management and Budget nonetheless held the delivery of those funds past the time during which there might have been any legally permissible reason to hold them, and provided no statement to Congress (as the law also required) explaining why the funds could not now be expended. In this respect, the Administration violated the law. And in this respect, witness after witness has been more than justified in describing the White House conduct as, likewise, a violation of the foreign policy of the United States.
And the witnesses were not only right in this technical sense. They were right in a more fundamental sense as well. The president has never been the sole agent in charge of U.S. foreign policy, and perpetuating this fiction only heightens the dangers of constitutional harm. It enables Congress to pretend it bears less responsibility than it does for keeping the ship of state on an even keel. And it makes it easier for presidents to undertake foreign adventures in America’s name that bear no relationship to America’s foreign policy interests at all.
This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.
We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.
DEBORAH PEARLSTEIN is a professor of law and co-director of the Floersheimer Center for Constitutional Democracy at Cardozo School of Law, Yeshiva University.
THE BATTLE FOR THE CONSTITUTION
Foreign Policy Isn't Just Up To Trump
The president’s defenders argue that U.S. foreign policy is whatever he says it is. Trouble is, that’s not what the Constitution says.
6:00 AM ET
Deborah Pearlstein
Professor of law at Yeshiva University
www.theatlantic.com/ideas/archive/2019/11/congresss-constitutional-role-us-foreign-policy/602485/
The U.S. capital surrounded by leaves
MOLLY RILEY / REUTERS
While House Republicans struggled all week to develop a coherent explanation for President Donald Trump’s conduct in the Ukraine affair, they coalesced around at least one message they seemed certain would bolster their case. As Representative Elise Stefanik put it: “The person who sets the policy of the United States is the president.” In her view—and that of others who made the same case—the Constitution gives the chief executive power over foreign affairs, end of story. The whole idea that the president had done something to undermine U.S. foreign policy, as Ambassador William Taylor, Lieutenant Colonel Alexander Vindman, and the former National Security Council official Fiona Hill had argued, was itself illogical.
This argument might have more bite if the Constitution actually gave the president sole authority to set all of U.S. foreign policy. It’s easy to see where this idea came from. Popular historical accounts describe an “imperial presidency” that regularly deploys military force with no regard for congressional preferences. Executive-branch lawyers regularly invoke memorable (if not legally meaningful) judicial rhetoric about the president’s signal role in foreign affairs. Perhaps, then, it follows quite naturally that only a third of American college students can correctly identify Congress as the branch of the U.S. government with the power to “declare war.”
MORE IN THIS SERIES
The Battle for the Constitution www.theatlantic.com/projects/battle-constitution/
A special project on the constitutional debates in American life, in partnership with the National Constitution Center
Bribery Is Right There in the Constitution www.theatlantic.com/ideas/archive/2019/11/understanding-bribery-grounds-impeachment/602353/
CARISSA BYRNE HESSICK
The Weird Scenario That Pits President Pelosi Against Citizen Trump in 2020 www.theatlantic.com/ideas/archive/2019/11/2020-election-could-pit-pelosi-against-trump/602308/
JOSH BLACKMAN SETH BARRETT TILLMAN
How Conservatives Turned the ‘Color-Blind Constitution’ Against Racial Progress www.theatlantic.com/ideas/archive/2019/11/colorblind-constitution/602221/
THEODORE R. JOHNSON
Read: Who controls foreign policy: The president on Congress? www.theatlantic.com/politics/archive/2014/10/who-controls-foreign-policy-the-president-or-congress/382181/
The Battle for the Constitution www.theatlantic.com/projects/battle-constitution/
A special project on the constitutional debates in American life, in partnership with the National Constitution Center
Bribery Is Right There in the Constitution www.theatlantic.com/ideas/archive/2019/11/understanding-bribery-grounds-impeachment/602353/
CARISSA BYRNE HESSICK
The Weird Scenario That Pits President Pelosi Against Citizen Trump in 2020 www.theatlantic.com/ideas/archive/2019/11/2020-election-could-pit-pelosi-against-trump/602308/
JOSH BLACKMAN SETH BARRETT TILLMAN
How Conservatives Turned the ‘Color-Blind Constitution’ Against Racial Progress www.theatlantic.com/ideas/archive/2019/11/colorblind-constitution/602221/
THEODORE R. JOHNSON
Read: Who controls foreign policy: The president on Congress? www.theatlantic.com/politics/archive/2014/10/who-controls-foreign-policy-the-president-or-congress/382181/
Yet as the Supreme Court said pointedly just a few years back in rejecting the notion that the president is the “sole organ of the federal government in the field of international relations,” the Constitution recognizes no such “unbounded power.” On the contrary, the legislature’s power to influence and even control U.S. foreign policy decision-making is vast, and certainly vast enough to support the uniform view the witnesses expressed: U.S. support for Ukraine is a central pillar of U.S. foreign policy, and the president is undermining that policy, not legitimately setting a new one.
First principles first. The Constitution expressly allocates to Congress a lengthy list of foreign affairs-related powers, not only to declare war, but also to regulate commerce with foreign nations, define and punish offenses against the law of nations, make rules for the government and regulation of the armed forces, appropriate funds to provide for the common defense, and indeed make “all laws which shall be necessary and proper for carrying into execution” any of those powers, among others.
The list of foreign-affairs powers the Constitution allocates to the president is, in contrast, quite brief and—far more important, as the Supreme Court has long and repeatedly explained—dependent “upon their disjunction or conjunction with those of Congress.” While the scope of some of the president’s powers may be reasonably broad, the president is on the thinnest possible constitutional ice when he takes steps “incompatible with” views Congress has expressly or impliedly made known. As Justice Robert H. Jackson famously explained in the Steel Seizure case during the Korean War, our constitutional equilibrium is one that ensures the president is bound by the duly enacted laws of the United States.
Far from understanding these powers to be more constrained in the realm of foreign affairs or national security, the Constitution’s Framers recognized the power to appropriate money in particular as an especially important check on the executive’s ability to exercise U.S. military power. Determined to learn from the negative example of the British military—which had quartered soldiers in private homes and clashed repeatedly with colonists—the Framers thought it essential that control over the military not be vested in an executive alone. Thus, in addition to giving Congress the power to raise, support, and regulate armies, the Constitution expressly requires members of Congress to authorize military expenditures “in the face of their constituents” every two years, ensuring that the government’s most profound power remained squarely in the hands of “the representatives of the people.” Military leaders at the time favored this approach as well, as they feared being made the political scapegoat of civilian policy decisions. When it came to matters at the core of American national security, Congress was to play a central role.
Given this history, it should be unsurprising that Congress has repeatedly enacted legislation in the modern era prohibiting the use of funds to support various U.S. military activities abroad, or setting conditions on the distribution of security assistance to allies, effectively altering the course of U.S. foreign policy. And in response, presidents have complied.
Read: House Democrats want to investigate Trump’s foreign policy www.theatlantic.com/international/archive/2018/11/house-democrats-investigate-trump-foreign-policy/575401/
This is in part why the current president’s critical—and apparently unlawful—delay in delivering congressional authorized security assistance to Ukraine is so extraordinary. As it has done in countless other statutes, Congress insisted in the Ukraine security-assistance law that the Pentagon certify that the aid could be appropriately delivered, and the Pentagon had so certified. The Office of Management and Budget nonetheless held the delivery of those funds past the time during which there might have been any legally permissible reason to hold them, and provided no statement to Congress (as the law also required) explaining why the funds could not now be expended. In this respect, the Administration violated the law. And in this respect, witness after witness has been more than justified in describing the White House conduct as, likewise, a violation of the foreign policy of the United States.
And the witnesses were not only right in this technical sense. They were right in a more fundamental sense as well. The president has never been the sole agent in charge of U.S. foreign policy, and perpetuating this fiction only heightens the dangers of constitutional harm. It enables Congress to pretend it bears less responsibility than it does for keeping the ship of state on an even keel. And it makes it easier for presidents to undertake foreign adventures in America’s name that bear no relationship to America’s foreign policy interests at all.
This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.
We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.
DEBORAH PEARLSTEIN is a professor of law and co-director of the Floersheimer Center for Constitutional Democracy at Cardozo School of Law, Yeshiva University.