11/23/19
While House Republicans struggled all week to develop a coherent explanation for President Donald Trump’s conduct in the Ukraine affair, they coalesced around at least one message they seemed certain would bolster their case. As Representative Elise Stefanik put it: “The person who sets the policy of the United States is the president.” In her view—and that of others who made the same case—the Constitution gives the chief executive power over foreign affairs, end of story. The whole idea that the president had done something to undermine U.S. foreign policy, as Ambassador William Taylor, Lieutenant Colonel Alexander Vindman, and the former National Security Council official Fiona Hill had argued, was itself illogical. This argument might have more bite if the Constitution actually gave the president sole authority to set all of U.S. foreign policy. It’s easy to see where this idea came from. Popular historical accounts describe an “imperial presidency”that regularly deploys military force with no regard for congressional preferences. Executive-branch lawyers regularly invoke memorable (if not legally meaningful) judicial rhetoric about the president’s signal role in foreign affairs. Perhaps, then, it follows quite naturally that only a third of American college students can correctly identify Congress as the branch of the U.S. government with the power to “declare war.” Yet as the Supreme Court said pointedly just a few years back in rejecting the notion that the president is the “sole organ of the federal government in the field of international relations,” the Constitution recognizes no such “unbounded power.” On the contrary, the legislature’s power to influence and even control U.S. foreign policy decision-making is vast, and certainly vast enough to support the uniform view the witnesses expressed: U.S. support for Ukraine is a central pillar of U.S. foreign policy, and the president is undermining that policy, not legitimately setting a new one.
First principles first. The Constitution expressly allocates to Congress a lengthy list of foreign affairs-related powers, not only to declare war, but also to regulate commerce with foreign nations, define and punish offenses against the law of nations, make rules for the government and regulation of the armed forces, appropriate funds to provide for the common defense, and indeed make “all laws which shall be necessary and proper for carrying into execution” any of those powers, among others. The list of foreign-affairs powers the Constitution allocates to the president is, in contrast, quite brief and—far more important, as the Supreme Court has long and repeatedly explained—dependent “upon their disjunction or conjunction with those of Congress.” Far from understanding these powers to be more constrained in the realm of foreign affairs or national security, the Constitution’s Framers recognized the power to appropriate money in particular as an especially important check on the executive’s ability to exercise U.S. military power. As it has done in countless other statutes, Congress insisted in the Ukraine security-assistance law that the Pentagon certify that the aid could be appropriately delivered, and the Pentagon had so certified. And in this respect, witness after witness has been more than justified in describing the White House conduct as, likewise, a violation of the foreign policy of the United States. And the witnesses were not only right in this technical sense. They were right in a more fundamental sense as well. The president has never been the sole agent in charge of U.S. foreign policy, and perpetuating this fiction only heightens the dangers of constitutional harm. It enables Congress to pretend it bears less responsibility than it does for keeping the ship of state on an even keel. And it makes it easier for presidents to undertake foreign adventures in America’s name that bear no relationship to America’s foreign policy interests at all.
