The Constitution and the Conduct of American Foreign Policy: Essays in Law and History / Edition 1

by David Gray Adler, Larry N. George

Overview

In this provocative and readable volume, eleven leading constitutional authorities challenge "business as usual" in American foreign policymaking. For far too long, they contend, Americans have acquiesced to presidential claims to sweeping executive powers in foreign

affairs—thanks to imperial-minded presidents, a weak-willed Congress, and neglectful scholars.

These authors forcefully argue that the president is not the supreme crafter of foreign policy and that Congress must provide more than a rubber stamp for the president's agenda. Unilateral presidential control of foreign relations, they warn, can pose a grave threat to our nation's welfare and is simply without constitutional warrant.

Combining constitutional theory with keen historical insights, these authors illuminate the roots of presidential abuse of executive power and remind us of the past and potential costs of such disregard for our unique system of checks-and-balances. An essential guide for all concerned citizens and members of Congress, this volume should help revive a proper understanding of this crucial dimension of American democracy.

Product Details

ISBN-13:	9780700607563
Publisher:	University Press of Kansas
Publication date:	07/26/1996
Series:	Spie Proceedings Series; 2801
Pages:	410
Product dimensions:	6.00(w) x 9.00(h) x 0.92(d)

Table of Contents

Foreword

Acknowledgments

Introduction

Part One—Constitutional Principles and Democratic Norms

1. Court, Constitution, and Foreign Affairs, David Gray Adler

2. Democratic Theory and the Conduct of American Foreign Policy, Larry N. George

Part Two—Executive-Legislative Relations in Foreign Affairs

3. The President, Congress, and the Fulcrum of Foreign Policy, Robert J. Spitzer

4. Presidential Prerogative and the Spirit of American Constitutionalism, Donald L. Robinson

5. The President’s Recognition Power, David Gray Adler

6. Why the President Almost always Wins in Foreign Affairs, Harold Hongju Koh

Part Three—The Constitution and Warmaking

7. The Constitution and Presidential Warmaking, David Gray Adler

8. The Spending Power, Louis Fisher

9. The War Powers Resolution and the Persian Gulf War, Edward Keynes

Part Four—Law and Foreign Policy: Historical Perspectives and Precedents

10. The Washington Administration, Congress, and Algiers, Gerhard Casper

11. The Quasi-War and Presidential Warmaking, Dean Alfange, Jr.

12. Secrecy and Constitutional Controls in the Federalist Period, Daniel N. Hoffman

13. The Barbary Wars: Legal Precedent for Invading Haiti?, Louis Fisher

14. Truman in Korea, Louis Fisher

Appendix A: Federalist Papers

Appendix B: Foreign Affairs Cases

Selected Bibliography

About the Contributors

Index

Editorial Reviews

"An extremely useful, insightful and well-written volume."—Law and Politics Book Review

"An excellent scholarly compendium of 14 essays focusing on the wide gulf that has developed in the last 60 years between constitutional principle and governmental practice in the conduct of foreign affairs."—Foreign Affairs

"Will be of significant use to those interested in the interaction between the branches with respect to foreign policy and the constitutional arguments that surround it."—American Politics Review

"The authors of the 14 articles in this cohesive collection propose that executive domination of American foreign policy has become so pervasive as to threaten the constitutional balance between the president and Congress."—The Historian

"These provocative essays on the delicate partnership of Congress and the president are must reading for members of Congress, presidents, presidential advisers, and all serious students of American constitutionalism."—Thomas E. Cronin, author of The State of the Presidency

"A well-conceived and impressive book that will be useful for both scholars and general readers."—Jules Lobel, lead attorney in Dellums v. Bush

"An important contribution to the growing body of literature on separate and shared national security powers in our democracy."—Stephen Dycus, coauthor of National Security Law

From the Publisher

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Booknews

THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY is one of the more fascinating and well-written studies of presidential and congressional powers in making and conducting foreign policy to emerge in many years. The book's chapters are most fundamentally concerned with the intent of the writers of the U.S. Constitution regarding which branch of government should control what foreign policy function. These intentions are explored in a series of case studies of the balance of power between the president and the Congress in the early days of the Republic as well as more modern-day foreign policy controversies. Thus, as an analysis of precedent- setting events and debates and as a legal and historical investigation of the validity of presidential claims to preeminence in foreign policy, this volume substantially expands our understanding of constitutional issues and foreign policy. As such it is an essential book for any scholar of United States foreign policy. But, THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY also has a second, normative purpose and that is to systematically dismantle the arguments for presidential dominance and argue for greater "democratization" of U.S. foreign policy, especially through increased participation by the Congress and the Courts. This point is made definitively early on when it is stated that the myth of presidential dominance, "...although constitutionally unfounded, corruptive of political democracy and counter-productive to the nation's interests here and abroad, has nevertheless asserted itself with disturbing persistence over the past several decades, poisoning both practical foreign policy making and rigorous constitutional interpretation" (p. 1). Certainly these authors cannot be accused of pulling punches or overly qualifying their hypotheses. The chapters go on to provide a great deal of evidence to back up the assertion that there is little historical or constitutional basis for presidential supremacy. Control over war powers--especially recent presidents' contention that they can act without a congressional declaration of war-- garners a great deal of attention. One chapter by Dean Alfange on the "quasi-war", an undeclared naval confrontation with France during John Adams's presidency, shows that this early use of force without an explicit declaration of war, which was often cited as precedent by later presidents, does not demonstrate that Adams lacked proper statutory authority. Another chapter by Adler shows that the framers intended that Congress alone possessed the power to declare war and that presidents could act unilaterally only when U.S. territory was breached. Louis Fisher argues that the United Nations charter does not give presidents the right to use force when so asked by the UN Security Council as was argued by Harry Truman during the Korean War. Rather he argues the UN Charter (like other treaties to which the United States is a party) clearly indicates that member states were to use normal constitutional procedures to implement UN resolutions. Indeed, there are several chapters making equally as compelling arguments that the legal foundation for presidential dominance in using military force rests on very shaky grounds. Similarly, the authors demonstrate that the constitutional basis for the expansion of presidential power to recognize foreign governments and authorize executive agreements are just as flimsy. David Gray Adler argues that the power to receive foreign ambassadors was intended to be a purely routine power that presidents were compelled to exercise whenever a foreign government sought to present its credentials. Nowhere in the Constitution was it intended that presidents have the discretion to grant recognition to some governments and not others, as presidents have lately been wont to do (e.g., Communist China until the 1970s). Robert J. Spitzer, as well as most of the authors, argues that both the Supreme Court and the Congress have been deficient in reining in the president's propensity to sign executive agreements on matters that ought to be subject to Senate approval. In fact, all the authors find fault with all three branches of government for not performing their constitutional responsibilities, and allowing presidential dominance to continue. Given their basic purpose of outlining a legal and constitutional justification for greater control by the courts and Congress in foreign policy, the authors succeed. Their evidence is well-argued and persuasively written. Given the precedents and examples cited here, it is easy to see that presidents have exceeded their original, constitutional mandate. However, I part ways with the authors first on their exclusion of other historical examples prior to the Cold War in which Congress deferred to the president. These examples would undercut somewhat the argument that presidential dominance is a fairly recent phenomenon. Second, I find troubling some of the normative implications of the authors' arguments. First, I believe the authors should have explored the evolution of presidential power in foreign policy beyond the Civil War. Most of the historical analysis is limited to the Washington, Adams and Jefferson administrations. While this exploration is extremely important in describing how the framers of the Constitution applied that document, it does not tell us enough about what happened when the United States took its first big steps onto the world's stage at the turn of the 20th century. The authors seem to believe that presidential dominance and abuse of power only began in the aftermath of World War II. But clearly there were important, precedent-setting events early in the 20th century as presidents sent military forces into Cuba, Haiti, the Dominican Republic and Nicaragua without congressional declarations of war. Theodore Roosevelt made many a bold claim for executive powers that would have made even Richard Nixon blush. An examination of these cases might have demonstrated whether presidential supremacy during the Cold War was an anomaly, or a trend begun earlier. The book ignores too much history and constitutional development that might shed light on the legitimacy of both the claims of the authors and the president. Second, and more importantly, the authors make the normative argument that greater congressional and judicial involvement is needed in foreign policy making. I do not doubt that such involvement in the past or in the future could (have) prevent(ed) abuse of power by the executive branch, or the adoption of unsound policies, on occasion (e.g., the Iran-Contra Affair). The more important question is whether the routine involvement of the other branches would work in practice. If the Supreme Court and the Congress are truly reluctant to involve themselves in foreign policy for their own institutional and political reasons, can they be "forced" to engage in foreign policy making? Obviously, as the authors indicate, the constitutional and statutory powers are in place now for the other branches to assert their claims. Thus, it will take more than the passage of additional legislation to inspire such involvement, it will take political courage. So far it has been more expedient to let the president make the difficult foreign policy decisions to avoid blame, and because there are few electoral incentives to be involved in foreign policy. Lastly, I wonder whether greater congressional and judicial involvement in foreign affairs would make for better policy. Will forcing the involvement of 535 legislators representing all manner of parochial concerns make for a more democratic or a more fragmented foreign policy? Will greater involvement by the courts lead to a democratization of foreign policy, or will it lead to the accumulation of greater powers in the hands of an unelected minority? Will the overwhelming power and responsibilities the United States possesses as a global hegemon ever allow it the luxury of engaging in the kind of leisurely and scholarly debate to which the framers were accustomed? Or will the nation/president be forced by circumstances never envisioned by the framers to take quick and decisive or unpopular actions? The international and domestic context within which foreign policy is made cannot be ignored. If it were not for Franklin Roosevelt's Lend Lease executive agreement, or Jimmy Carter's efforts to free the hostages in Iran, who would have acted? Even though the authors are primarily concerned with the constitutional and legal basis for presidential supremacy, these points should have been raised if we are to take the next step and accept the implications of their arguments. I must emphasize again, however, that on the whole I found this to be an extremely useful, insightful and well-written volume. I take issue only when the authors do not take into consideration the practical consequences of their prescriptions. Certainly, enhanced participation by the Congress can be very useful and should be implemented where possible. But this involvement should only be encouraged where it is feasible, potentially effective and can prevent presidential abuse of authority. Still, these are personal biases and others can judge for themselves the authors' normative prescriptions.

James Meernik