Congress and Foreign Affairs: Reasserting the Power of First Branch


Casey Burgat
Former Associate Fellow
James Wallner
Resident Senior Fellow, Governance
Anthony Marcum
Former Resident Fellow, Governance
Kevin Kosar
Former Vice President, Research Partnerships

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Article I of the U.S. Constitution assigns Congress many significant authorities over foreign policy. The legislature may “regulate commerce with foreign nations,” and “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Although the president is deemed “commander in chief,” Congress also has “the power to declare war,” and has immense authorities over the military. For example, it is legislators who may: “raise and support Armies […] provide and maintain a Navy […and] make rules for the […] regulation of the land and naval forces.” In fact, the departments that engage in diplomacy—the Department of State chief among them—exist because Congress enacted them into law and funds them annually from the U.S. Treasury.

Yet, for all this power, today’s Congress undeniably plays second fiddle to the executive in foreign affairs. The legislature has not declared war since 1942 when it issued a call to arms against Bulgaria, Hungary and Rumania. Moreover, it has delegated various discretionary aspects of trade policy to the president, and has enacted “fast track” legislative procedures to curb its own influence on these agreements. When it comes to dealing with international bodies, such as the World Health Organization and the United Nations, it is the executive branch that now leads on policy issues.

On those occasions when Congress does act, its efforts are increasingly symbolic. The legislature has sent war powers and weapons sales resolutions to the White House five times in the past two years; each time the measures were vetoed and the chambers failed to override. Policies objected to by a majority of legislators continue.

This diminution of Congress’s role in foreign affairs and the attendant attenuation of popular direction over America’s role in the world are concerning, and prompted the R Street Institute’s Governance program to study the matter, which resulted in four short policy studies and a meeting of its Legislative Branch Capacity Working Group.

This collection of essays herein were produced for an autumn 2019 conference. They consider different facets of the issue, and were written by scholars of differing academic training and expertise. Collectively, they depict a Congress that is largely at sea in foreign affairs, and is uncertain how to return to port.

Casey Burgat’s analysis exposes reduced congressional capacity as a key factor in Congress’s weakness in foreign affairs. He writes: “When it comes to the committees most responsible for foreign affairs and military programs and operations, Congress is outmatched by the president’s agency on a host of measures.” Despite having the authority to fund itself at whatever level it desires, Congress has operated on the cheap, leaving it with staff that are too few and too junior in experience.

James Wallner’s article shows how despite their limited authorities, presidents have been able to aggrandize their power over foreign affairs. As a first mover, the president can simply do things that Congress must then amass a majority to stop. “In recent years,” Wallner writes, “the legislative branch has increasingly become more representative of American society, and more individualistic members have been elected to the body.” These developments have made it more difficult for Congress to act collectively. Additionally, the executive also can “go public” and appeal to the public for support of a course of action which, if given, can intimidate the legislative branch into silence. Nevertheless, Congress’s legislative authorities remain formidable, and if legislators individually and collectively are willing to use them, they can influence policy.

Anthony Marcum’s essay makes clear that Congress should not turn to federal courts when it has disputes with executive actions in foreign affairs. “Suits challenging the president’s overreach in foreign relations,” he notes, “have largely failed in federal court. This is because courts have been consistently unwilling to second guess the executive branch’s military decision-making, and have instilled common law barriers that firmly limit judicial engagement.” Indeed, filing lawsuits against the executive tends almost inevitably to involve legal wrangling that takes years to resolve, often long after the political controversy has subsided.

That the Third Branch has been no friend to the First is a truth further borne out in Louis Fisher’s historical analysis. He notes that the 1936 Curtiss-Wright case, which involved a private company that violated a federal ban on international arms dealing, erroneously aggrandized the executive vis-a-vis Congress. The executive branch gladly received this gift from the court, and subsequently used the decision to accrete additional powers in foreign affairs. Fisher’s essay also underscores the importance of mindset among legislatures. In politics, one is only as powerful as one imagines oneself to be, and Congress errantly imagines itself second to the president.

Congressional acquiescence in foreign affairs is complex and has roots in various factors, including the differing incentive structures for legislators versus presidents, the assets and capacity the branches have to conduct policy, and policies and political choices made long ago. These essays are but a small step in a long path to understanding both how this state of affairs came to be, and how the country may restore more constitutional governance over foreign affairs.

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