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FOREIGN AFFAIRS AND THE CONSTITUTION
Americans have been celebrating the bicentennial of their Constitution with visible pride and audible satisfaction. The national mood is one of appreciation of the wisdom and prescience of the framers.
Students of foreign affairs will have noted, however, that the bicentennial is the year in which Americans have breathed the Iran-contra miasma; followed with pained incomprehension the circlings of president and Congress over Nicaragua and its neighbors; heard the president and the Senate shouting disagreement over the meaning of the Anti-Ballistic Missile (ABM) Treaty; watched the United States slip into the Persian Gulf and the Iran-Iraq war, wondering who in Washington was in charge. If we have not verged on constitutional crisis, few have been moved to declare that the constitutional arrangements for conducting the foreign affairs of the United States are worthy of celebration.
"Foreign affairs" is not a term found in the Constitution, and what we characterize as foreign affairs is not a discrete constitutional category. Still, many of the provisions of the Constitution apply equally, and have had equal success, in foreign as in domestic affairs. Some particular constitutional dispositions for foreign affairs - for example, the grant to the federal government of virtually full authority, to the exclusion of the states - have surely proved their wisdom.
After 200 years the difficult constitutional issues of foreign affairs arise from the so-called separation of powers and the various checks and balances between Congress and the president. Some of the divisions of authority between the two political branches that apply generally have evoked special dissatisfaction as they operate in foreign affairs. Some of the allocations of authority that relate to foreign affairs in particular have at times left either the president or the Congress - or both - unhappy. Above all, the constitutional blueprint has proved to be unclear and incomplete as regards foreign affairs, and there is no agreed guiding principle to help make its provisions clear, or to fill the lacunae. National experience has provided some answers, but Congress and president continue to tug for more of the foreign policy blanket. In 1954, in a famous essay on the distribution of political authority under the Constitution, Justice Robert H. Jackson wrote:
There is a zone of twilight in which [the president] and Congress may have concurrent authority, or in which its distribution is uncertain.
Important foreign affairs powers lie in that twilight zone. Indeed, in few other respects is our constitutional system as troubled by uncertainty in principle and by conflict in practice between Congress and the president. The effect is to raise intractable issues of constitutional jurisprudence and constitutional politics.
Issues of power between Congress and the president in foreign affairs have not been resolved and are not soon likely to be. The courts, to which we look for constitutional resolution, promise little help. The Supreme Court has developed an armory of reasons for not hearing issues: a federal court will hear only a "case or controversy" (technically defined) at the behest of a petitioner with "standing" (technically defined) when the issue is "ripe" and not moot. These requirements are particularly difficult to meet in foreign affairs. In addition the courts have declared certain issues to be political questions (not meaningfully defined by the courts) and therefore not justiciable, and foreign affairs issues have been particularly vulnerable to being declared non-justiciable.
If our constitutional system for allocating authority to conduct foreign affairs gives little cause for celebration, the bicentennial nevertheless invites our taking stock and seeking understanding, if not answers. What did the framers dispose? What happened along the way? Where are we today? Where do we go from here?
As in the past, the end of the twentieth century witnesses voices calling for a return to constitutional text and the intent of the framers. Few have raised that call to resolve controversies of foreign affairs, but constitutional text and even original intent surely have their claims in this as in other areas of governance.
For the framers of the Constitution, the "separation of powers" was an article of faith. The principle that different and separate branches of government should exercise different and separate functions provided the outline which they followed in drafting the Constitution, though powers they separated in principle emerged substantially mixed in fact. During the subsequent 200 years, both the presidency and the Congress have been transformed. The founding fathers would not readily recognize the Congress they prescribed - now a body of over 500 members, with both houses directly elected, its business transacted by a complex of committees and powerful staffers. The framers would be incredulous at what has become of their original creation, the presidency, an office conceived in doubt and controversy, its powers seemingly strictly limited, yet commonly described today as the most powerful in the world. (It would, President Truman once said, make Genghis Khan green with envy.) "The president" has become "the presidency," a branch of government consisting of many departments, with a bureaucracy of millions. The president_s constitutional assignment to recommend to the consideration of Congress "from time to time . . . such measures as he shall judge necessary and expedient" has made him the principal author of the national legislative program and of a trillion-dollar budget. But the constitutional blueprint of 200 years ago has not been amended, and it continues to define the powers of Congress and the president and relations between them.
For the framers, Congress came first. In Congress they vested "all legislative powers herein granted;" the president was to exercise "the executive power." That division of authority and function applied generally, without distinction or exception for what we have come to call foreign affairs. In regard to foreign, as to domestic, affairs (our characterizations, not the Constitution_s), Congress was to legislate and the president was to take care that the laws be faithfully executed. Revenue would be raised and expenditures determined by Congress, and "no money shall be drawn from the Treasury, but in consequence of appropriations made by law." The president would appoint officials, but only with the advice and consent of the Senate. Both the power of the president to appoint and the requirement that the Senate consent applied equally to a secretary of state for foreign affairs or an ambassador to a foreign nation as to an attorney general or other officials in charge of domestic matters.
In its outlines the constitutional division of authority between Congress and president is reasonably clear, indisputable and therefore not often disputed, though presidents have chafed at the distribution, and both Congress and the president have sometimes tried to move or blur the line that divides their estates. After 200 years of the Constitution, although Congress and the presidency are transformed, their parts in our governance are recognizably those projected by the constitutional blueprint: Congress makes laws and the president executes them; Congress levies taxes to provide for the common defense and the general welfare, and the president spends as Congress directs. As regards domestic affairs, that constitutional division is established, and continues to provide the framework and context of government. Magnified presidential importance in domestic affairs today derives not from any new powers or functions granted to (or assumed by) him, but from the enlarged significance of the powers, privileges and duties originally conferred upon him, as well as from extraconstitutional factors, notably his political dominance-party leadership, patronage, popular appeal-and his consequent ability to persuade, move and sometimes compel Congress.
The division between recommending legislation and enacting it, between passing laws and executing them, between appropriating money and spending it, applies in foreign as in domestic affairs. In foreign affairs, however, that division does not exhaust constitutional authority: there is more to foreign relations than laws and expenditures. The Constitution itself confers and allocates important powers that do not conform to the division between making and executing law, notably the president's treaty power. Moreover, the constitutional blueprint for the governance of our foreign affairs has proved to be starkly incomplete, indeed skimpy.
The relevant prescriptions are few. Congress has the power to tax and spend for the common defense and the general welfare (including, no doubt, foreign affairs purposes), to regulate commerce with foreign nations, to define offenses against the law of nations, to declare war. The president has the power to appoint ambassadors and to make treaties (with the consent of the Senate). The Constitution provides that the president shall be the commander in chief.
The Constitution says nothing, surely nothing explicit and clear, about much else that has stirred controversy in our day: Does the president have the power, without congressional authorization or approval, to terminate a defense treaty with Taiwan, as President Carter did in the face of substantial congressional opposition? To send troops to Lebanon or Grenada, as President Reagan did, evoking significant criticism from Congress on constitutional grounds and some suits filed by citizens? To conclude military base agreements with various countries, as several presidents have done? Is there an "executive privilege" to withhold information from Congress, or a presidential right to impound and not spend funds appropriated by Congress? Could the president, some unthinkable day, on his own authority convert conventional war to nuclear war by "first use," retaliate against an enemy that had dropped nuclear bombs on an ally, or initiate a nuclear "first strike" to preempt an anticipated attack or for other reasons of perceived national interest?
If constitutional text is insufficient, the intent of the framers (however one defines the term, and whomever one includes among them) is also less than determinative. The record of the deliberations at various stages of the process is spare. Even the classic annotation, , adds and clarifies little for our purposes. In large measure what the framers intended can be inferred only from what they did; in some measure one might guess what they had in mind on the basis of what we know of their political ideas and commitments, insofar as there was a single or dominant cast to their thought.
The purpose of the Constitution was "to form a more perfect Union," and for the framers that meant, inter alia, a union better able to conduct relations with other nations. They hoped to achieve that purpose by giving the new federal government, to the exclusion of the states, the control of foreign relations. They divided the powers of the new government-to-be between Congress, a body they had known under the Articles of Confederation but which they transformed, and a new office they created, the presidency. That office had no model. It was to be like, yet unlike, the English Crown. Its powers were to be significant yet circumscribed; in the end details were determined not by principle but by compromise.
In general, for foreign as for domestic affairs, the text reflected the general conceptions and inclinations of the framers about the different functions of government and their allocation. In principle they divided legislative from executive power. But for them the conduct of foreign relations was "executive altogether." The presidency was to have some foreign affairs powers that under the Articles of Confederation had been exercised by Congress. But the framers were determined not to make the president a republican, elected facsimile of the king of England, with republican-royal powers and republican-royal prerogatives. Above all, the president was not to have the king's power to go to war; that power was given to Congress. The president was entrusted with the "royal" power to make treaties, but subject to the advice and consent of the Senate. Indeed, approval of a treaty required the consent of an extraordinary majority, two-thirds of the senators present. Another presidential foreign affairs function was not designated a power, but seems rather an assignment: that the president "shall receive foreign ambassadors."
During the ensuing 200 years presidents have prominently and frequently invoked powers as commander in chief. Strictly, the designation that "the President shall be Commander-in-Chief of the Army and Navy" is not a grant of power (though some powers are necessarily implied in the function). Having learned a lesson in the Revolutionary War, the framers determined that there should be a single, civilian commander in chief, rather than command by Congress or congressional committee. The evidence is that in the contemplation of the framers the armed forces would be under the command of the president but at the disposition of Congress. Principally, the president would command the forces in wars declared by Congress. As an exception, the framers agreed to leave to "the executive the power to repel sudden attacks": authorization by Congress might not be possible to obtain promptly, or at all, and could be assumed. There is no evidence that the framers contemplated any significant independent role - or authority - for the president as commander in chief when there was no war. Congress would decide whether "to raise and support Armies," or "to provide and maintain a Navy," and would "make rules for the Government and Regulation" of such forces; it was Congress that would even "provide for calling forth the Militia." There was to be no standing army for the president to command in time of peace, and no army or navy at all unless Congress wished it. The president's designation as commander in chief, then, appears to have implied no substantive authority to use the armed forces, whether for war (unless the United States were suddenly attacked) or for peacetime purposes, except as Congress directed.
Such, I think, was the framers' original conception. No doubt, there was more which they did not articulate, and much they did not anticipate, perhaps some things they purposely did not provide for. The framers, I am persuaded, had a reasonably clear idea of the powers they were conferring upon Congress: in general, they saw Congress as the principal "policymaking" (our term, not theirs) organ in foreign as in domestic affairs, and in their conception Congress was to dominate the political process. They had a much less clear view about the presidency. They allocated to the president particular functions, but these did not add up to a comprehensive, coherent conception of the office, or of the division of authority between Congress and president, in the mind of any of the framers; surely there was no consensus about it. Except as they expressly provided, many of the framers were content, I suspect, to leave the office undefined in the good hands of the man all expected would be the first president. George Washington would shape the office.
Constitutional history has supplied answers to some of the questions that constitutional text and "original intent" left unanswered. George Washington did indeed begin to shape the office, not in accordance with principle or plan but in response to events. The major developments in the conception and scope of the presidential office concerned matters that were not on the face of the Constitution. The president's place in the configuration of government combined with the character of foreign relations to shape the presidency, as well as to launch it on the paths of uncertainty and controversy. The president appointed ambassadors; they were his ambassadors, and they received instructions from him and reported to him. They did so in secret, the way of diplomacy even in the eighteenth century. Through his ambassadors the president communicated with other governments as seemed appropriate to him. The president told Congress what his judgment and his sense of diplomatic and constitutional propriety required.
Foreign policy, then as now, consisted of much more than making treaties or legislating tariffs. The conduct of foreign relations was a day-to-day process, continuous and informal. Unlike Congress, dispersed during most of our history in the distances of the country, the presidency was always "in session." Unlike Congress, which can act only formally, by statute or resolution (and in effect only publicly and sometimes dramatically), the president can act quickly and informally, often discreetly or secretly: only President Washington could decide to send Citizen Genêt home when he abused his post as minister of France; only Washington could effectively pursue the deliberations and negotiations that led to a decision to proclaim neutrality in the wars between England and France. In many circumstances, unless the president acted, the United States could not act at all. Major agreements were made as treaties with the consent of the Senate, but the practice of the president acting alone to make informal agreements was inevitable and began early.
From the start the president was the eyes and ears and voice of the United States; slowly he became also its sturdy arms. Congress maintained a small navy and occasionally raised and supported a modest army; as the Constitution provided, the president was their commander. In response to events, presidents asserted authority to use those forces: early on, as all know, Jefferson ordered the navy to defend U.S. vessels against the Barbary pirates. As their "foreign relations power" took root and grew, presidents found themselves wearing two hats. In limited, uncertain steps the president as commander in chief began to carry out what the president as foreign affairs executive determined. In time, precedents accumulated and presidents gained confidence and claimed more authority. Beginning early and continuing to this day, in several hundred instances of varying scope and significance, presidents have deployed the armed forces of the United States for foreign policy purposes determined by the president on his own authority.
Congress contributed to the steady growth of presidential power. Congress early recognized and confirmed the president's control of day-to-day foreign intercourse, and the resulting monopoly of information and experience promoted presidential claims of expertise and a congressional sense of inadequacy. Congress generally acquiesced in the president's deployments of forces and in his executive agreements. Later, a growing practice of informal consultations between the president and congressional leaders disarmed them as well as members of Congress generally, and helped confirm presidential authority to act without formal congressional participation. Often, Congress quickly ratified or confirmed what the president had already done, such as, in our day, the decision in 1950 to fight in Korea. And repeatedly Congress delegated its own huge powers to the president in broad terms so that he could later claim to have acted under Congress' authority as well as his own, as in the Tonkin Gulf Resolution of 1964, which in effect legitimated the Vietnam War.
In our legalist-constitutionalist political culture, practice was early undergirded by doctrine. In support of his argument that President Washington had authority to declare the United States neutral in the war between England and France, Alexander Hamilton (writing as "Pacificus") read the clause in the Constitution, "The Executive Power shall be vested in a President," as a grant to him of all the executive power of the United States - which for Hamilton included all foreign affairs power - except as otherwise expressly provided. James Madison ("Helvidius") reacted sharply, with Thomas Jefferson's encouragement. Power was in Congress, he wrote, except as the Constitution expressly and specifically granted modest amounts of it to the president. Madison, I think, had the better of the argument from text and intent; history has tilted toward Hamilton.
Other constitutional principles developed. In addition to his famous imprints on constitutional jurisprudence made as chief justice, John Marshall, in an insufficiently heralded contribution while he was still a member of the House of Representatives, declared that the president was the "sole organ of the nation in its external relations, and its sole representative with foreign nations." That characterization was expressly approved by the Supreme Court in United States v. Curtiss-Wright Export Corp. (1936), which referred to the "very delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations."
Others have blended Hamilton's "executive power" and Marshall's "sole organ" and built on them. In our century Theodore Roosevelt claimed to be the "steward of the people," and insisted that his "executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers." Franklin Roosevelt in time of war also claimed authority from "the people" and even threatened to repeal an act of Congress (or to treat it as repealed). More recent presidents have avoided having to justify, and inviting reaction to, extravagant conceptions of the presidential office by simply asserting far-reaching authority "under the Constitution and the laws of the United States." The constitutional pretensions of the Roosevelts have not been invoked or imitated recently, but it has sometimes been asserted, and often assumed, that the president himself can determine the foreign policy of the United States, communicate that policy as "sole organ," implement it as "the executive," and enforce it as commander in chief.
What I have described developed slowly and not without resistance and occasional retreat. Congress has never formally adopted or approved the large conception of the presidential office as it developed, though it generally acquiesced in that conception. Early presidents did not press their claims too far and, even with growing partisanship, Congress did not feel a need to challenge many presidential assertions. To cite a familiar early example, Congress did not feel obliged to challenge President Monroe's authority to proclaim his doctrine or to make the decisions and the threats it implied; for long, Congress was content to treat the Monroe Doctrine with cautious, even skeptical, neglect, surely not as a promise binding the United States to go to war or to spend money.
As presidents claimed more, congressmen - and not only those of an opposing political party - sometimes objected. Our constitutional-political history is punctuated by exchanges between Congress and the executive, and between spokesmen for their respective claims. Against Hamilton, members of Congress and its supporters have cited Madison (and Jefferson), insisting that the president has only the few specific powers expressly granted him, narrowly construed, and that in foreign as in domestic affairs Congress is primary and supreme. The president, they were prepared to agree, is the sole organ of communication, but it is Congress that largely decides the policies to be communicated. The president's authority to make agreements without the consent of the Senate or the approval of Congress is limited. The president is the commander in chief of the armed forces, but it is Congress that decides what forces he shall command, whether the United States shall go to war, whether the arms and armies of the United States shall otherwise be deployed, and, if so, where and for what purpose.
Sometimes congressional spokesmen have claimed that constitutional uncertainties were intended to be resolved, and omissions supplied, by applying the principle of division between legislative and executive power expressed in the Constitution: Congress makes foreign policy, and the president executes congressional policy and conducts foreign relations in accordance with that policy. But clearly that is not an accurate description, either of the constitutional blueprint or of our government during the past 200 years. In foreign affairs the president does not merely execute what Congress prescribes. The president makes foreign policy - and legislates, makes law - when he makes a treaty (with the consent of the Senate). He makes foreign policy (and sometimes law) by executive agreements concluded on his own authority (without the consent of the Senate). The president makes foreign policy when he establishes diplomatic relations with the People's Republic of China and terminates such relations with Taiwan. There is inevitably some policymaking authority in the constitutional designation of the president as commander in chief. What is more, the distinction between making foreign policy and conducting foreign relations is essentially empty: the president makes foreign policy by conducting foreign relations, by the way he conducts them and the content and tone he gives them.
Congress has been more successful when it has argued, not constitutional limits on the president's initiatives, but rather the breadth of its own powers, and their supremacy. Congress has insisted that, whatever the president may do on his own initiative when Congress is silent, he may not act contrary to the wishes of Congress when they are expressed by law in the exercise of the legislature's broad powers over war and commerce with foreign nations and its power to spend for the common defense and general welfare. Both Hamilton and Marshall, it has been stressed, made only limited claims for presidential power. Marshall asserted only that the president was the sole organ of communication with foreign nations; he did not claim for the president authority to determine the substance of what was to be communicated. Hamilton asserted power for the president to initiate foreign policy in some areas not within the express powers of Congress, when Congress was silent; he did not claim any authority for the president to exclude Congress, or to act contrary to direction by Congress.
And so Congress has sometimes directed the president to do something, or not to do something, or to do something else, or to do something differently; sometimes Congress has undone what the president had done. Congress has not attempted to define or to regulate the content of executive agreements, but, in the Case Act of 1972, Congress insisted that it be informed of all such agreements. (The executive branch has apparently complied.) In the principal continuing controversy, the War Powers Resolution adopted by Congress in 1973 declared that the president has constitutional power to introduce U.S. forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated, only in the case of an attack on the United States or its armed forces. After declaring the president's own constitutional authority to be narrow, Congress asserted authority to regulate strictly the president's use of force in hostilities.
Where has this debate left us today? Emphasis on unresolved issues should not obscure the fact that large dispositions in the Constitution are not disputed in principle (though presidents, and occasionally Congress, sometimes resent and resist them). Presidents have not made and do not make laws relating to foreign affairs. They do not appropriate money or spend funds without congressional appropriation. They do not make treaties without Senate consent. They have not asserted the power to declare war or to go into full-scale war without congressional authorization.
For its part, Congress has not presumed to make treaties or appoint ambassadors. And by extrapolation from the presidency's express powers, supported by references to Hamilton and Marshall, presidents have established beyond dispute an additional area of exclusive authority: Congress cannot tell the president to recognize or not to recognize, or to maintain or not to maintain diplomatic relations with, a foreign government; whom to appoint as ambassador; whether to negotiate a treaty, or whether to make or not to make a treaty or an executive agreement intimately related to the diplomatic function; or how to conduct a campaign in a war that Congress has authorized.
For the rest, we are in Justice Jackson's twilight zone, in which president and Congress "may have concurrent authority or in which its distribution is uncertain." Short of formal treaties, presidents make important executive agreements on their own authority on an undefined variety of subjects; occasionally the Senate, or a portion of its members, asserts limits on the president's power to make executive agreements or challenges his power to conclude a particular agreement. "Short of war," a president may use the armed forces for foreign policy purposes determined by him; Congress, or some congressmen, frequently challenge particular presidential deployments. Presidents have continued to assert executive privilege to deny Congress documents or information, and Congress has continued to object and threaten; frequently the executive will provide such material subject to an injunction of secrecy. Until recently presidents asserted the right to impound and not to spend funds appropriated by Congress, including spending for defense or foreign policy purposes.
In the twilight zone, then, whether because authority is uncertain or concurrent, both Congress and the president have sometimes claimed authority to act when the other is silent. Congress and president sometimes race for the initiative, though in general the initiative is with the president, and presidents have pressed their claims far. But even when the president has acted Congress has sometimes asserted authority to regulate what he has done or might do. When Congress acts, its claims for supremacy are strong. Following his identification of the twilight zone, Justice Jackson wrote, in Youngstown Sheet & Tube Co. v. Sawyer:
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
It is commonly accepted by students of the Constitution, if not always by presidents, that except in the small zone of exclusive presidential authority, Congress acting under its broad powers can prohibit or regulate what the president does, and the president (and all the president's men) may not flout congressional directives. Presidents, in fact, have rarely asserted power to act when Congress has directed them not to, or to disregard conditions imposed by Congress on their actions. If the president presses his resistance, Congress can usually prevail, in constitutional principle and in governmental practice, if only because it holds the purse strings - provided it has the will to pull them.
The significance of Congress' power of the purse should not be misconceived. Under the Constitution the president cannot spend a dollar unless Congress has authorized and appropriated the money. But where the president has independent constitutional authority to act, Congress, I believe, is constitutionally bound to implement his actions, notably by appropriating the necessary funds: for example, Congress may not properly refuse to appropriate funds, as reasonably necessary, to pay for an embassy to a government the president has recognized. But when Congress is of the view that a presidential act is outside his constitutional authority, it may challenge his action and may refuse to appropriate funds to implement it. Similarly, when Congress reasonably believes that the president's authority to act is not exclusive, but is subject to regulation by Congress, it may prohibit or limit the president's activity directly by legislation or indirectly by denying him funds. The president has no constitutional power, in any circumstances, to expend funds or transfer U.S. property contrary to congressional instructions.
Consider the consequences of these constitutional developments in our day. The president has firmly established exclusive control of diplomacy and the diplomatic process: President Carter determined, over significant congressional opposition, to recognize the mainland Chinese regime and to terminate recognition, diplomatic relations and the defense treaty with the regime in Taiwan. He settled the Iran hostage crisis by executive agreement. The president determines the intelligence-gathering activities of the intelligence agencies. For much else, the executive has been dependent on Congress (or on the Senate). Congress makes all laws and decides all expenditures. Congress determines foreign assistance - to which countries, in what amounts. The president sometimes promises financial or military aid, but he - and the proposed recipients - are aware that Congress will determine whether that promise will be kept, within what limits and on what terms and conditions. Congress has exercised authority to regulate and oversee "covert activities" (for purposes other than gathering intelligence); in the Iran-contra mess, there apparently were gross violations of the law, but no serious challenge has been raised to the constitutionality of those laws. Some presidents have not liked congressional human rights policies, whether sanctions against South Africa on account of apartheid, or restrictions on aid to other gross violators of human rights, but no president has seriously questioned the constitutional authority of Congress to determine that policy.
The president plans military policy and strategy, but only Congress can appropriate funds for research and development of weapons, and for the acquisition of weapons and their deployment. When Congress appropriates funds for particular weapons, it approves or acquiesces in the strategy which those weapons imply. Congress has not yet worked out the proper balance between its responsibility to legislate and to provide for the common defense, and its need to delegate and its desire to maintain "oversight" but under the Constitution it is for Congress to decide.
The power to make treaties is the president's, but he cannot dispense with the Senate. Forty years ago the president negotiated the U.N. Charter and the North Atlantic Treaty, but he had to involve the Senate intimately in those negotiations and he was able to conclude those treaties only when the Senate consented. Later other presidents concluded an ABM treaty, the Panama Canal Treaties and a Strategic Arms Limitation Treaty, but they were only ratified after Senate scrutiny and consent, and only subject to conditions which the Senate imposed.
Important matters, however, remain in the twilight zone. Members of Congress continue to question every new presidential deployment of armed forces and to assert the applicability of the War Powers Resolution; presidents continue to challenge the constitutionality of this resolution and to circumvent it in fact. There are recurrent demands that Congress examine untested assumptions about the president's authority to act in unthinkable ways in unthinkable circumstances - if nuclear deterrence fails. The Senate periodically questions the president's power to conclude an international agreement without Senate consent. In the twilight zone, too, are general issues between president and Congress that have important applications in foreign affairs, notably claims of executive privilege which Congress challenges, and congressional strings attached to laws or appropriations which presidents resent and sometimes resist.
I have emphasized what the Constitution makes explicit, and adumbrated powers whose allocation as between Congress and president is uncertain, or perhaps jointly held. Students of constitutional law and politics might add that the foreign affairs issues that agitate congressional-presidential relations in the bicentennial year reflect more than the uncertainties of the twilight zone. There are issues of constitutional interpretation as to the scope of the powers that are explicitly allocated to one branch or the other. Some tensions between Congress and the president are not strictly constitutional issues but are the inevitable (and perhaps desirable) consequences of the separation of powers - frictions and inefficiencies which separation engenders, failures in the cooperation which separation demands but which is not easy to achieve. Acute tensions in constitutional politics, including those reflected in the Iran-contra shame, derive not from constitutional uncertainties but from unhappiness with, even resistance to, what the Constitution prescribes. Presidents in particular, I think, often see the constitutional blueprint as being out of date for the country we have become, in the world in which we live.
In the wake of Watergate and Vietnam there were stray suggestions that we consider abandoning or radically modifying the separation of powers, and even that we replace our "presidential system" with some variation of the "Westminster model." But there have been no serious moves in this direction, and even less radical constitutional amendments are not likely. (And I, for my part, would not favor any that have been suggested.) Short of constitutional amendments we can only hope to clarify and improve the interpretation of the Constitution we have. Some of the issues and tensions can be alleviated, I think, by the paying of greater attention, principally by Congress, to the use of the powers intended for the legislature by the framers.
The war power. In the War Powers Resolution, Congress declared its view that the constitutional authority of the president to use the armed forces in "hostilities" is strictly limited: he can do so only when there is an attack on the United States or its armed forces. In addition, Congress commanded advance consultation and prompt reporting of any engagement of U.S. forces, and automatic termination after 60 (or 90) days, or at any time when Congress so directs by resolution (not subject to presidential veto). Presidents have challenged the resolution in principle, have sometimes made gestures of acquiescence, and have generally disregarded it.
I think that the War Powers Resolution is sound in constitutional principle but that it demands rethinking and rewriting. The resolution does not make clear whether the regulatory provisions apply when the president is acting within his sole constitutional authority (as Congress sees it), or only when the president has exceeded his constitutional authority. The resolution seems to require advance formal consultation with both houses of Congress, not merely with leaders, committee chairmen or specially designated agents of Congress. It requires such consultation "in every possible instance," but there is no indication as to what is meant by "possible."
Above all, the resolution suffers gravely from a lack of any definition of "hostilities;" yet the accuracy of Congress' statement of presidential power and the constitutionality of the regulatory provisions and their practical application may hang on how that term is defined. It is late in the day for Congress to challenge any deployment of troops whatsoever by the commander in chief, and in today's world any unit of U.S. armed forces anywhere may be an object of hostility and become involved in "hostilities." On the other hand, in invading Grenada, in putting the navy into the Persian Gulf, perhaps even in sending advisers to El Salvador and Honduras (to give some contemporary examples), the president has engaged in or risked war and placed himself, I think, within the purview of the war powers of Congress. If the resolution is to survive and flourish, Congress will have to redefine its scope as well as some of its regulations, and establish institutions and procedures to make it work.
Nuclear strategy. It seems to be commonly assumed that under the Constitution the issues of deterrence and of what to do if deterrence fails are "executive altogether." Congress has not challenged that assumption; a few citizens have, making claims on Congress' behalf. There has been little discussion of these issues in constitutional terms either in Congress, in scholarly circles or in the public domain.
The framers gave the powers over war and peace to Congress. It may seem hopelessly anachronistic to attempt to squeeze the issue of response to a first strike, or of the possibility of an anticipatory strike by the United States, into a constitutional framework designed for eighteenth-century wars. But the original framework and its allocations of authority are all we have to work with and live by.
If we take the Constitution seriously, it is not unreasonable to conclude that the original reasons for leaving the powers of war to Congress apply, a fortiori, to nuclear exchange.Assumptions of presidential authority (other than by delegation by Congress), then, must derive from the accepted "exception," in which the framers contemplated that the president could act to "repel sudden attacks" on the United States. A first strike or a strike in response to action other than an attack on the United States (or its armed forces) is not within the authority of the president under the framers' exception, and not within Congress' statement of the president's constitutional authority in the War Powers Resolution. Moreover, the framers' acceptance of such exceptional presidential authority, I am satisfied, assumed the need to act promptly, took congressional consent for granted and thought of presidential action as an emergency measure providing Congress the opportunity to act. But the assumption that Congress necessarily approves of a nuclear strike to defend an ally, or even in retaliation for an attack on the United States (as distinguished from "defense" of the United States), may not be obvious to all - not, say, to the Catholic bishops who reluctantly accepted deterrence but not the use of nuclear weapons if deterrence fails. In any event, that question, as an issue of principle, is not an emergency issue, but one that Congress could address in advance.
The assumption of the need for instant response, moreover, may apply to certain scenarios but not to some others. One can readily suggest situations in which there would be no need to respond instantly, and which are therefore not subject to the assumptions that might justify response by the executive without congressional authorization. In some circumstances, surely, there is both opportunity and justification for the operation of the original constitutional conception: consideration and decision by Congress. Should not Congress be exploring and planning for different contingencies, distinguishing those in which decision must be left to the president from those in which doing so contradicts the constitutional conception, and provide for congressional decision in some form wherever possible?
A constitutional issue of different dimension is raised by scenarios in which there would be no presidential finger available to press "the button." As applied in such circumstances, the authority contemplated by the framers for emergency response by the president would become authority not for presidential judgment but for virtually automatic response, and not by the president but by lower-ranking levels of civilian or military authority, unnamed and unknown even to the president. Such dispositions raise grave constitutional issues of delegation of power and of presidential succession. Again, if there is to be a process of automatic response in a particular contingency, if there are to be dispositions as to delegation, or as to presidential succession (other than those contemplated by the 25th Amendment), should they not be designed by Congress?
Congress has not explicitly made such dispositions. There is perhaps some level of congressional involvement in strategic planning when the Senate consents to treaty arrangements such as the North Atlantic Treaty, including the institutions for strategic planning implied in NATO. When Congress approves and appropriates funds for development of particular weapons, there is some degree of congressional involvement in determining the strategies which different weapons systems might imply. Perhaps it is assumed that by providing the weapons Congress in effect approves the different strategies they make possible, and delegates to the president the authority to implement them. But there is an important - and constitutionally critical - difference between congressional authorization of weapons systems and of their deployment, and decisions as to their use. It is far from obvious that the power to make war can be delegated, especially without guidelines, especially to unknown persons.
Reluctance to consider and discuss issues of nuclear strategy may be due in part to unwillingness to alarm the people, and in part to a fear that public discussion of the issue might weaken deterrence, but even the question whether those consequences are inevitable has not been responsibly discussed or considered. And is it clear that Congress could not discharge its constitutional responsibility without publicity?
Have nuclear weapons effectively eliminated any meaningful role for Congress in decisions as to nuclear strategy? If so, our celebrated Constitution is no longer relevant for our most compelling concerns.
The spending power. Issues of defense spending and foreign aid are essentially not differences as to what the Constitution provides, but unhappinesses with what is provided. The Constitution expressly gives Congress the power to tax and provide for the common defense and the general welfare. The president can only "recommend" to the Congress "such measures as he shall judge necessary and expedient;" the president can propose, Congress disposes (subject to presidential veto, which it can override). Spending for the common defense, for "raising and supporting" the armed forces, allows the president's experts, military and civilian, to develop weapons and plan deployments and strategies - but Congress has to be persuaded to enact and implement them. Congress, for its part, is unhappy being a mere rubber stamp, particularly for spending huge sums requiring high taxes and competing with other societal demands. To provide itself some minimal role, Congress has had to develop its own experts and expertise. Inevitably, however, the role of Congress is often marginal, hardly what the framers contemplated. Presidents resent even that marginal restraint.
Similar, though less acute, is presidential impatience with the power of Congress to spend for the general welfare. In foreign relations, it is accepted that providing for the general welfare includes the appropriation of large sums for foreign aid. Again, presidents plan and promise, but Congress has to be persuaded, in general or in particular cases. Again, the roles are substantially reversed from what I think the framers intended.
Tensions as to the applications of the spending power are the inevitable consequences of the separation of powers, as it impinges on complex government in today's world. The tensions may even be desirable. I see no "remedy" other than more authentic consultation by improved procedures, at earlier as well as later stages.
Covert activities. The framers recognized the need to seek intelligence information, and doubtless saw it as an aspect of maintaining diplomatic relations. They may even have understood and contemplated other "covert activities," even some kinds of "dirty tricks," but these would have been questions of policy to be determined by Congress, then to be executed by the president.
The distinction between intelligence-gathering activities and "covert actions" having other purposes is recognized by Congress, which has regulated the latter only. Presidents have been less willing to accept the distinction. As regards covert activities for purposes other than intelligence-gathering, presidents have resisted even the requirement to inform Congress, in part from the principle of executive privilege, but even more because presidents know that knowledge is power, that the need to report and inform deters and circumscribes, that requests for information are a form of congressional regulation, and that information will engender further regulation. The executive branch has acquiesced in requirements to report to Congress or congressional committees, especially if Congress provides loopholes for special circumstances. In practice, we have learned, the president has been less acquiescent when Congress regulates his power by forbidding the use of funds for certain kinds of covert activities or the sale of weapons to certain governments, such as states supporting terrorism.
From a constitutional perspective, it is difficult to make a persuasive argument that Congress cannot regulate these covert activities, whether under its power to regulate commerce with foreign nations, to deal with the issues of war and peace, or to define offenses against the law of nations - or under the unarticulated "foreign affairs power" which the Supreme Court found implied for Congress in the notion of the national sovereignty of the United States. In my view, the president has not made a case for "liberating" the intelligence agencies from restraints such as those Congress has imposed.
The treaty power. The president cannot make a treaty without Senate consent; the Senate has sometimes sold that consent dear. Increasingly - since the disasters of the Versailles Treaty and other interwar agreements - the executive branch has learned to attempt to determine in advance what the Senate will buy, to consult particular senators, to involve them in negotiations. But the Senate's perspectives on world affairs and the national interest are often different from those of the executive. The constitutional bifurcation of the treaty power is inefficient, and often frustrating to presidents and to the foreign governments with which we deal. That is not an issue of the interpretation of the Constitution, but a complaint against it. More, better, earlier consultation with the Senate will surely improve the treaty-making process. I do not see an answer to these tensions in an expansion of the use of executive agreements.
The Senate's consent to a treaty is constitutionally necessary, and for that purpose the Senate is entitled to know what the treaty means; often it will insist on articulating explicit understandings as to what it means. When, as has recently happened in respect of the ABM treaty, the executive branch later seeks to interpret a treaty to an effect different from what it had told the Senate in seeking its consent, the executive would seem to be violating the constitutional conception. Surely such attempts by the executive invite the Senate in the future to probe ambiguities and to express understandings with nearly paranoid scrupulousness, from fear not only of what other states may make of a treaty but of what a future executive branch will make of it. The president must be candid; the Senate must restrain itself.
Fear of circumvention of the Senate by presidential resort to executive agreements on his own authority is currently quiescent. The president has not challenged the demand of Congress to be fully informed of executive agreements after they are made, and there has been no recent challenge by the Senate to the constitutional propriety of any particular agreement that has been made. But the issue is always in the wings. The Senate has resolved that the president cannot agree to commit the forces or the financial resources of the United States on his own authority; presidents have purported to make such commitments only when Congress had delegated to them large authority, or only by nonbinding promises. But Congress can terminate or restrict its delegation of these powers, and there is always the possibility that Congress may deem a presidential promise to have been beyond his authority to make.
Thirty-five years ago Senator John W. Bricker (R-Ohio) led a campaign to amend the Constitution so as to limit the treaty power as well as the president's power to make agreements on his own authority. As regards executive agreements, that attempt, and others before and since, evoked sympathetic response; they foundered, I believe, because it proved impossible to draw the line between those agreements that require Senate consent and those the president ought to be able to make on his own authority. A new attempt at such definition is not likely to be more successful. Moreover, the need for formal regulation by Congress has not been obvious. Congress now has information about executive agreements and can arrange to scrutinize them to determine whether the president has gone too far. If he does, the Senate (and Congress as a whole) have the political weapons to frustrate presidential usurpation and reaffirm the Senate's constitutional claims.
We have come a long way under the constitutional blueprint which the framers ordained and established. As they intended, Congress possesses, and exercises, the power to make law and to tax and spend for the common defense and the general welfare. The president was granted the power of a strong executive but has acquired much more. The framers did not anticipate, I think, how much legislation and spending would be determined by the fact that the president recommended them; that the president would become the many-headed executive branch, knowledgeable, expert and difficult for Congress to resist or to overrule; how much power Congress would be "compelled" or disposed to delegate to the president with only vague guidelines for its exercise; how much of the power that the president exercised originally by delegation or by acquiescence would be claimed as powers of the president "under the Constitution and the Laws." The framers did not foresee the dangers inherent in leaving general policies to be executed by a president who also had the command of the armed forces. I doubt they foresaw the number and variety of agreements presidents would claim authority to make without advice and consent of the Senate. I do not think they foresaw the president's claim to use the armed forces for broad foreign policy purposes determined by him. Surely they did not foresee a nuclear world and nuclear strategy that induced Congress to delegate - or abandon - its constitutional authority over the life of the nation to the president and even to unspecified persons in his command.
This, I believe, is where we are after 200 years, under an eighteenth-century blueprint which has never been replaced, or formally amended in respects here relevant. The explicit constitutional allocations continue to govern. A large twilight zone continues to generate both uncertainty and competition. Congress can often prevail if it organizes, educates and mobilizes itself, but there are formidable obstacles to its doing so. Major issues of separation of power remain unresolved and without prospect of judicial resolution. Resort to the Constitution, to text and context, to history and purpose, to intent of the framers, is often not fruitful, and special theories of constitutional construction (such as Hamilton's) are not always helpful, surely not determinative. We come down, I think, to deciding - if we can - what kind of country we are and wish to be. I am disposed to state the question as: How should foreign affairs be run in a republic that has become a democracy?
The framers of the Constitution were republicans, not democrats. After 200 years we are finally a democracy, limited by commitment to individual rights. (Some 20 years ago the Supreme Court made universal suffrage constitutional dogma.) It may be time, then, to begin to inject into our constitutional jurisprudence our conception of democracy, our dual democracy, a presidential democracy and a congressional democracy, giving each its due.
In foreign affairs the president represents the United States, and the people of the United States, to the world. Congress represents the people at home, the sum of different groups, constituencies, interests (general and special). The president leads; Congress legislates. The president represents needs for expertise, secrecy, speed, efficiency. Congress provides wider, soberer, more deliberate, more cautious, longer-term values and judgments.
For me, seeing the president and Congress under the aspect of democracy - an aspect quite different from the framers' perspective - nevertheless confirms their judgment, and the national experience over 200 years, in surprising measure. In respect of the government's authority to use force - the perennial and paramount constitutional issue - in my view, our dual democracy tends to confirm the original division. The Constitution gave the decision as to whether to put the country into war to Congress; the framers intended for the president only the power to defend the United States if this country were suddenly attacked. That division still seems wise, and responsive to popular wishes - the basis of authentic democracy. A decision to go to war in circumstances other than an attack on the United States - even to defend allies, or vital U.S. interests, or the lives of its citizens'was not intended to be within the president's sole constitutional power; the power, the decision, the responsibility belong to Congress. It is not a power which Congress should delegate. If Congress were to decide now that in given circumstances (say, an attack on U.S. forces in Berlin) the United States should go to war without awaiting a formal decision by Congress, it might so provide now, while requiring appropriate if less-than-formal participation in the decision by congressional agents. (Congress might also consider rewriting the War Powers Resolution accordingly.)
The original allocation of war powers resists too-ready application to the decisions of nuclear defense policy and the implications of deterrence, but its underlying sense, I think, is not irrelevant there. Should the president have authority to decide, alone, to escalate to nuclear war, to launch a first strike? Should he decide, alone, how to respond to nuclear attack? Granting such power is not what the framers intended, or would have intended; it is not, I think, what our kind of democracy requires. Commitment to total war should require the consent of the governed, not only for the general policy but for its every cost, and for all those decisions that implicate the lives - and the soul - of the people. Such decisions, I think, should be for Congress to make; surely, Congress must be involved in some important way. If, in some scenarios, there can be no formal role for Congress in a situation calling for instant retaliation or urgent preemptive action, it is all the more important that Congress be involved in advance planning, in contingent policy, as well as in the ultimate decision, by the best procedures Congress can devise.
The exercise of force in situations other than war is another, more complicated matter. In the conduct of foreign relations the president has acquired authority to use the forces that Congress puts at his command. But the Constitution explicitly denies him the power to initiate war, and therefore must deny him authority to do what is likely to bring us into war. A line between foreign affairs and war is not easily drawn. (Clausewitz, we recall, identified war as the conduct of foreign relations by particular means.) But it is a line drawn by the framers and redrawn by our history; I think it corresponds to the intimations of our dual democracy.
I am suggesting a distinction akin to but different from that which Congress adopted in the War Powers Resolution. The president must eschew involvement, or serious danger of involvement, in undertakings that have the character of war or threaten to involve us in the costs of war. President Carter's attempt to rescue hostages held in Iran, for example, was not designed to fight a war and was not likely to engage Iranian forces or threaten the independence or territorial integrity of Iran - the relevant test under international law. The invasion of Grenada, by contrast, whatever motivated it, sought to topple a government and occupy a territory. It was widely seen as an act of war for international purposes, and it would seem to have had the character of war for constitutional purposes. Good fortune kept deaths few on both sides, and as a result the action won popular acclaim. But would the people have supported it had it proved costly? It is not, I think, the kind of action the Constitution and our dual democracy intend to be undertaken by the president on his own authority. Again, the War Powers Resolution might be rewritten to reflect the distinctions I suggest.
Between rescue of hostages and invasion are other cases, some of them hard cases. It would be difficult to decide them by adjudication even if the courts were willing to try; it is surely a subject inappropriate for confrontation between president and Congress. The stakes are too high for a democratic society to tolerate either a presidential fait accompli or a congressional fiat delivered to an unwilling president. We need processes that will bring to bear wisdom as well as expertise, and the authentic consent of the governed. The original constitutional plan, the lessons of our intervening history, and our kind of democracy all call for congressional involvement, with a determining voice, in making foreign policy decisions that relate to the war power.
The tensions of human rights policy also implicate the theory of our democracy; it confirms, I think, the soundness of the instincts of the framers and their prescriptions. The president conducts foreign relations and is entitled to determine the quality of our relationship with each particular country. But the power to spend the people's wealth is a subject primarily for internal democracy, for the people and their representatives to decide what is in the general welfare, and how much to spend for it. It is the people, through their domestic representatives, who should be entitled to decide whether they wish to give their largesse to, or be associated with, a government guilty of torture or apartheid. The people of the United States, committed to the inalienable rights of all men and women everywhere, are entitled to identify with people who are victims of their own government, whether the identification is with blacks, Poles, Jews or any other human beings.
For the incredible excesses of the secret arms sales to Iran, and the flouting of the laws of Congress as regards Nicaragua, I see no constitutional excuse. Covert activities that stir issues of war and peace, or that spend the country's resources, are - and ought to be - subject to control by Congress. I believe the Constitution entrusts them to Congress properly, wisely. If the president cannot persuade Congress, he must bow to its will. The Constitution is clear: "He shall take care that the laws [of Congress] be faithfully executed."
The Constitution was not a perfect realization of ideals, principles and plans but "a mosaic of everyone's second choices." As a result, ours is a strange system, the strangest in the world. It was strange when it was conceived; it is stranger in the nuclear age. It blends different notions of democracy; a democracy represented to the world by the president; an internal democracy represented by Congress, closer to the people, to constituents, to individuals, to issues. It also blends respect for representation with concern for effectiveness, for different kinds of effectiveness. The president provides leadership, commands information, expertise, speed, efficiency. Congress represents the people, its wider, soberer (more cautious) long-term values and judgments. Two hundred years have given us separation of powers cum democracy or, perhaps more accurately, differentiation of function mixed for democracy. Ideally, the representatives of our different kinds of democracy work together. Good government as well as democracy demand fewer decisions by one representative alone, for war or in peace.