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PSC 303: International Relations
McCormick, American Foreign Policy & Process
Notes to Chapters 07, 08 & 09.
Prof. Jeremy Lewis, revised 31 Jan. 2005.

Under the Constitution, both the legislative and the executive branches of government have been delegated specific foreign affair’s powers.  The president is granted these powers in Article II and the Congress Under Article I.  This ensured that Congress and the president could each check the actions of the other in foreign policy.  However, this division between the legislature and the executive has not always been clear.

War Making
President- “Commander in Chief of the Army and Navy of the United States”
Congress- the power “to declare war”; to raise and support armies”; to “provide for the Common Defense”
Commitment making
President- “He shall have Power...To make Treaties”
Congress- “Provided two thirds of the Senators present concur”
Appointments
President- “He shall nominate...and shall appoint Ambassadors”
Congress- “by and with the advice and Consent of the Senate”

*This Constitutional ideal of shared foreign policy powers is often hard to put into effect as the actions of one branch seemingly cross over into the responsibilities of another branch.

The founders at the constitutional Convention were divided over how strong the foreign policy powers of the executive should be.  The founders largely rejected too much executive power and were careful to share presidential powers in making treaties, appointments, and war and peace with the legislative branch.

According to a cyclical interpretation view there has been periods of executive and legislative dominance.
*Examples of dominance:
-In the early decades of the country, presidential dominance was on the rise while congressional involvement in foreign policy was often limited.
-After the Civil War, there was a “golden age of congressional ascendancy”
-After World War II the congressional involvement was changed dramatically to an executive dominance.
-At the emergence of the Cold War, and into the late 1940’s and early 1950’s , executive dominance in foreign affairs was fully in place.

The president owes its ability to dominate foreign affairs matters to several key factors:

1.) Important historical executive precedents-
-Negotiating with Other Nations-early presidents set a precedent for how future executives would act.  President Washington simply informed the Congress of his actions to send personal emissaries to represent him in negotiations abroad.
-Withholding Foreign Policy Information- President Washington declined to share important diplomatic information with the House of Representatives when negotiating the Jay Treaty.  Other early presidents followed Washington’s lead and the president’s right to recognize and to negotiate with states is little challenged to this day.
-Initiating conflicts and wars- generally taken into with care among early presidents but became much bolder later beginning mainly with Lincoln in the Civil War.  Many interventions since then occurred without the benefit of congressional actions before the fact.
-Making Foreign Commitments- Presidents have relied on the so-called executive agreement as a principal means of establishing holds with other nations, therefore weakening congressional involvement in this aspect.
-Issuing Executive Orders

2.) Supreme Court decisions- The Court’s decisions have supported presidential claims to dominance over foreign policy in two ways. 1.) The Court has largely ruled on the merits in favor of the executive over the Congress on foreign policy matters and 2.) The Supreme Court and lower courts have refused to rule on cases challenging executive authority in foreign policy. They have done so due to “the political question doctrine” that raises political, not legal, questions.  One of the most important Court decisions was that of U.S. v. Curtiss-Wright Export Corporation (1936).  This case made clear that the president’s power in foreign policy had “extra constitutional” powers tied to the sovereignty of the U.S. and the executive’s role as the representative of that sovereignty.  Other important cases include Missouri v. Holland and Belmont and Pink,

Continued by Lauren Carruth:
Some rulings challenging the Executive...
3.) Congressional deference and delegation,
4.) Growth of executive institutions,
5.) International situational factors:

     both legislative and executive branches of gov't have delegated specific foreign affairs powers
     Article I     Congressional Powers
          right to make and modify any laws and appropriate funds for the implementations of any laws
          Provide for national defense and declare war

     Article II    Presidential Powers
          Chief Executive
          Commander in Chief
          Chief diplomat and Chief negotiator
     The Struggle between Executive and Legislative for Power
          While the President commands the armed forces only Congress can declare war
          The President negotiates treaties, but Senate gives advice and consent to enter into treaties.
     There are times when one branch dominates over the other in terms of control
          This is a result of the system’s “invitation to struggle”
          Most of the Congressional fight for power has come in the post-Vietnam era
          Most analysts see the Executive as more successful than Congress esp. post-WWII
             Key Factors
                    Important Historical Executive Precedents
                    Supreme Court Decisions
                    Congressional Deference and Delegation
                    Growth of executive institutions
                    International situational factors
 

**Some rulings that challenge the executive:
(Cases where the courts disagree with the president):
1. Youngstown Sheet & Tube Co. et al. v. Sawyer (1950s):

• The Supreme Court decided that President Truman’s command of the secretary of commerce Sawyer to seize the US’s steel mills in order to prevent a national strike was unconstitutional.
• Justice Jackson’s concurring opinion set standards of what the president can do with foreign policy that restricted the president’s actions by forcing his decisions to coincide with Congress’s decisions.

• In the first case, first amendment rights beat out the Executive’s attempt to secure some documents from being released to the public for national security.
• The second case forced Nixon to turn over the Watergate tapes to the Supreme Court because Nixon did not prove that the withholdment of the tapes was tied to a "need to protect military, diplomatic, or sensitive national secrets."

• This involves the Court supporting the executive in foreign policy by not hearing a case and allowing the president to decide what actions should be taken.
• A justification for this idea is the "political question" doctrine, in which the courts decide that the case is more political than it is legal or constitutional.
• Another justification is the "ripeness" criterion, where claims against a president involving use of force abroad or abrogation of a treaty must pursue the correct legislative avenues before entering the Justice system.
• Examples of this type of case are:

Since WWII, Congress has supported the president’s domination in foreign policy, and has even delegated some policy prerogatives to the president.

• Congressional Leadership:

• Supportive Legislative Behavior: Similar to Congressional bipartisanship is Congressional action on executive branch proposals. Overall, legislative support for international policies is better than for domestic policies.
• Legislative Delegation: Sometimes Congress grants powers to the president. For example, Congress has allowed the president to use armed forces as he wishes, given the president the power to determine foreign aid, and allowed the president to determine international trade. The most famous delegation of war-making power was in the resolution that the president could "take all necessary steps…to assist any member…of the Southeast Asia Collective Defense Treaty…" in the Gulf of Tonkin Resolution.

• Example: The National Security Council was established by the National Security Act "to advise the president with respect to the integration of domestic, foreign, and military policies relating to national security."
• Example: The Central Intelligence Agency was established also by the National Security Act for providing intelligence estimations.
• Example: Joint Chiefs of Staff consisting of the Army and Air Force chiefs of staff prepares plans and forces and advises the president of military matters.

• All foreign policy since WWII has been conducted in a Cold War mindset, that looks at foreign policy in the long-term over short-term. At the end of the Cold War, the previous almost "automatic" support from Congress became harder to obtain in regard to foreign policies. September 11 restored the relationship and support between the executive and Congress, yet the relationship was once again hurt during the War in Iraq.

I. Commitment Making
A. The Bricker Amendment
 – John Bricker was a senator from Ohio in the 1950's
 – Bricker proposed constitutional amendments
 1. Any treaty or executive agreement that infringes upon the constitutional rights of American citizens shall be unconstitutional and congress has the right to enact appropriate legislation to put into effect any treaty or executive agreement made by the president (proposed 3 amendment which fail)
  1. Alter the constitutional principle established for treaties
  2. Stop self executing treaties
  3. Ensure a larger congressional role in implementing all treaties and executive agreements domestically
B. The Case– Zablocki Act
June 1969 Senate passed 2 “sense of the Senate”
 1. Stating the making of national commitment should involve the legislative and executive branch
 2. Stating the agreements with these states for military bases for foreign assistance should take the form of treaties
These resolutions provided an avenue for venting congressional frustrations over executive actions abroad.  They were largely symbolic, but didn't legally bind the executive branch to alter its previous
policies.
 a. 1972 congress passed the first significant piece of legislation in the commitment - making area– this law required the executive branch to report all international agreements to Congress within sixty days of
their entering in to force (named for after Sen. Clifford Case & Congressman Clement Zablocki)
 – it was amended in 1977– it required that all agreements made by all agencies within the executive branch must report to the Dept of State within 20 days for ultimate transmittal to Congress under the provision of the original act
 b. late reporting or non reporting prompted the concern of Congress for two reasons:
  1. Late reports inconsistent with procedural requirements of the Case- Zablocki and case legislation
  2. Affect the substance of policy
  – prompt reporting of commitments abroad is important to the continuation of the role of Congress in foreign policy making
C. Beyond Case- Zablocki
 a. Case- Zablocki Act required only the reporting of commitments signal congressional determination to participate in the agreement making process
 b. Congressman Thomas in 1975 proposed in the Executive Agreements Review Act that both houses of Congress have the right of disapproval of executive agreement, but only for introduction of American military personal or providing military training or equipment to another country
– under the foreign relations Authorization Act the president must report year to Congress
– Secretary of State must determine what arrangement constitute an international agreement, oral agreement must be in writing
– Congress has not ventured much beyond the reporting mechanism for trying to control agreement making by the executive

II. War Powers
A. congress adopted several measures to limit the war– making ability of the president in the 1970's
 – executive branch claimed it had the power to continue the war even without the resolution in place

 A. Key Provisions of the War Powers Resolution
– resolution has several important provision that requires presidential consultation and reporting to Congress on the military abroad
1. President may introduce the military into a situations where involvement is clearly indicated circumstances in three conditions
 1. Declaration of war
 2. Specific statutory authorization
 3. National attack upon the united states
2. The president shall consult with congress before sending American forces into hostilities until forces has been removed
3. Without a declaration of war, the president must submit a written report to the Speaker of the House
4. A resolution placed a time limit on how long these forces may be deployed
5. The congressional resolution that allowed Congress to withdraw the troops prior to the expiration of the sixty day limitation
-the intent of the war powers legislation was to stop the president from introducing American troops abroad and getting them into a conflict without a clear objective
-War Powers Resolution would promote the sharing of responsibility between the executive and legislative branches for dispatching America military personnel abroad
- -War Powers Resolution had another important purpose it served as a political and psychological restraint on Presidential war making

        B. Presidential Compliance
 -report requirement and the time limitation on troop deployment specified in the War Power Resolution
 -the extent and manner of presidential compliance with all aspects of the resolution and its overall effectiveness in curbing the expansion of executive power in this area
 - over the last six administrations, fifty one reports had been forward to congress within the procedures of the War Power Resolution
 - until Clinton administration the most frequent reporting had been done by president Reagan
 -Bush file seven reports to congress during term in office
 - Clinton administration submitted twenty-five reports through 1996

        C. Continuing Controversies
 -Congress has been dissatisfied with the level and depth of executive notification
 A. Failing to Comply Fully
     - Executive reservations is about the resolution are evident by the fact that president carefully phrases their Congressional reports and don't fully comply with the resolution requirement
 B. Failing To Report
     -The failure to report some instances at all has also weakened the impact of the resolution C. C. Failing to Consult
     -“ prior consultant” requirement has caused even greater difficulty between congress and the executive branch
     - the executive branch has insisted that it has generally consulted with congress and has kept congress informed of its action
     - when Presidents have chosen not to consult with congress, they have defended their actions by pointing to the need for secrecy in carrying out the operation, the limited time available for consultation
and the inherent presidential power act
     - the problem of eliciting presidential cooperation is in the consultation process several questions remain about the process itself
     - Congress and the executive branch have different views on these items and they have yet to be resolved

III. Recent Events And The War Powers Resolution
 - recent foreign policy episodes have rekindled the debate over its utility and practicality for managing congressional- executive relations in this area
 A. The Gulf War
      - President Bush reported to congress regarding his August 1990 decision to send the military to Saudi Arabia to protect the country from Iraqi
     - he failed to acknowledge compliance with the War Powers
Resolution or even its applicability to the situation
     - members of congressional authorization if he contemplated going to war after Bush announced that he was sending more troops to Persian Gulf
     - Congress filed suit in the district court because the president need congressional authorization to use  force
     -the resolution was that the president had to report to congress every sixty days on Iraq: the resolution did not declare war explicitly it was the functional equivalent because president could use force if all the stipulations had been met
    - the role of congress is used of forces abroad and it might establish a % for future American involvement
     -Congress requires a joint resolution for any withdrawal of troops prior to sixty days

IV. Controlling The Purse  Strings
 “Funding powers” wants to reduce executive discretion and increase the congressional direction of American foreign policy
 A. Five Objectives of foreign policy
 1. Reduce military involvement
  2. Cut off covert actions in Third World
 3. Congressional review on the sale of weapons and transfer of nuclear fuels to other countries
 4. Specify trading relations with other countries
 5. Limited transfer of American economic and military assistance to other countries
 -its very important for the President to seek approval from Congress
 -Congress wanted to eliminate funds for foreign policy action
 B. Earmarking of Funds
 - Congress shape foreign policy through earmarking for particular purposes
 C. Specifying Trade and Aid Requirements
 -Congress sought to ensure greater legislative participation in United States foreign policy

V. Congressional Oversight
     - it refers to congress reviews and monitoring of executive branch action of foreign policy action
 A. Expansion of Reporting Requirements To Congress
      Three types of reports are required of the executive branch
  1. Periodic or recurrent reports- it's a requirement directs the executive branch to submit particular information to Congress
  2. Notification- most frequent form of reporting and require the executive branch to inform Congress that a particular foreign policy action is contemplated
  3. On- time report- the calling of the executive branches to examine a particular issue or question
 B. Senate Foreign Relations Committee
  1. The president monitor the Senate Foreign Relations Committee, but it has declined in several decades
  2. Senate Foreign Relations Committee can play a pivotal role in the oversight of Foreign policy
 C. International Relations Committee
  1.  International Relations Committee is less likely to assist the constituency or biennial re-election goals of a member of the House directly
   -  Gained more reviews power over international economic issues
  - played a larger role in both the formulation and review of American
Foreign policy since the 1970s
 D. armed services Committee in the House and Senate
  1. Consist of the House National Security Committee and Senate Armed Services Committee
  -“stylized image” of two committees as protector of two changes a move toward yearly military authorization procedures and an innovative approach to handling military base closing

VI. Mechanisms of Congressional Influence
 - two types of categorize of foreign policy
  1. Legislative category- congress can pass substantive legislation on foreign policy or impose procedural legislation
  2. Non-legislative category- can subdivide those mechanisms into institutional actions and individuals actions
 Congress and the president share foreign policy making powers under the Constitution while these two institutions are pre-eminent actors in foreign policy making they are not the only ones involved in the
process.

                         II. The Structure of State Abroad
                            2a the Weakened Influence of State
                             2b the Problem of Resources
                              2c the Problem of Size
         2d the Personnel Problem
                                2e the Subculture Problem

                        III. The President Relationship with the Department
                            3a the President and the Department
                             3b the Public’s View

                        IV. The National Security Council
                            4a the Development of the NSC Bureaucracy
                            4b the Rise of the National Security Advisor

    V. The National Security Advisor
                             5a the Carter and Reagan Administrations
                             5b the George H.W. Bush and Bill Clinton Administrations
        5c the George W. Bush Administration