James W. Pfister: Presidential or collective judgment in foreign policy
The classic case of United States v. Curtiss-Wright Export Corp. (1936) has left a legacy of presidential dominance in foreign policy, based on unnecessary policy statements the Court made, called dicta, in the process of deciding the case. The legal analysis of the case would support both Congress and the president jointly deciding American foreign policy.
My thesis is that Congress should play a greater role in making foreign policy similar to the War Powers Resolution of 1973 (herein WPR), which was premised on the “…intent of the framers … that the collective judgment of the Congress and the President will apply” to the use of force. This “collective judgment” concept could be expanded to security commitments, security strategy and trade policies, as well. Since President George H.W. Bush, our presidents have not been experts in the administration of foreign policy. It is too dangerous today to allow one such person to dominate our foreign policy. Congress needs to step up.
The Curtiss-Wright case dealt with a delegation of power to President Franklin D. Roosevelt to prohibit the sale of arms to certain foreign nations in his sole judgment with no guidance or standards. This type of delegation would have been unconstitutional if it had dealt with a domestic matter but was OK as a foreign policy matter. Justice George Sutherland, a graduate of the University of Michigan Law School, wrote the opinion for the court. He distinguished between foreign and domestic affairs in the creation of our Constitution.
In domestic matters, states originally had this power. In making our Constitution, the people gave some of that power to Congress in specific express terms, such as in Article I, Section 8, not as a general power. But foreign policy power came to the central organs of the federal government from another source. States never had foreign policy power. When the Declaration of Independence was written, the Continental Congress, with its president, claimed foreign policy power. When the Articles of Confederation were approved in 1781, Congress had the sole foreign policy power with the aid of a president of the Congress. In 1783, England transferred sovereignty to the United States of America as a unified entity under the said Articles of Confederation.
Under the Constitution, foreign policy power is in part divided between the Congress and the president. Congress declares war, raises an army, and has power over foreign commerce. The Senate approves treaties. The president is the executive and is commander in chief, negotiates treaties and appoints ambassadors. But much is left undefined, such as the use of force short of a declared war (which has been the case since World War II), commitments made to foreign nations, security strategy, and trade policy. The Supreme Court has declared recognition policy is vested in the president. (Zivotofsky v. Kerry, 2015). The reasoning of this case may promote more unilateral presidential power. (Jack Goldsmith, Zivotofsky II as Precedent in the Executive Branch, 129 Harv. L. Rev. 112, 2015).
In dicta, the Curtiss-Wright case emphasized the president as the sole power to speak or listen to other nations, involving secrecy and confidential sources of information. This functional approach has given the president a dominance in foreign affairs. The WPR was enacted after the heavy American involvement in the Vietnam War ended in 1973, to limit the president and to give Congress a greater role, which passed over President Richard Nixon’s veto. Congress had authorized the use of force in Vietnam in 1964, and declared its ability to withdraw that authorization, but never did.
Presidents have ignored the WPR more recently. In Libya, President Barack Obama used force but said it did not rise to “hostilities” required by the WPR. Likewise, President Donald Trump used force in Syria but said it was a limited engagement not requiring WPR action. However, President George W. Bush had congressional authorization to satisfy WPR for both Afghanistan and Iraq.
With the dangerous world of rising conflict and nuclear weapons, it may be wise to strengthen the “collective judgment” concept, going beyond the use of force to include security commitments, security strategy, and trade policy. Matters of immediate concern would still require presidential action.
James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.
This article originally appeared on The Daily Telegram: James Pfister: Presidential or collective judgment in foreign policy
