The written Constitution is full of seemingly clear pronouncements about the distribution of foreign affairs powers. To pick a few prominent ones: Congress has the power to declare war and to regulate commerce with foreign nations. The President is the commander-in-chief and is responsible for making treaties by and with the advice and consent of two-thirds of the Senate.
Yet, in practice, these words operate like large brush strokes in an impressionist painting. As early as 1793, Alexander Hamilton and James Madison were debating whether the Constitution gave President George Washington the power to declare the United States neutral in the conflict between Great Britain and France. (President Washington decided that it did.) This is only one of countless examples of “the gloss which life has written upon” the words of the Constitution. While these words continue to matter, they have been strongly supplemented by the practice of our government over the years.
Also like an impressionist painting, the picture is plain from a distance. Historical practice has given the President the “lion’s share” of foreign affairs power. The President determines U.S. foreign policy in the first instance; has the exclusive authority to recognize foreign nations; can use force abroad without congressional authorization in at least some circumstances; and can make important international commitments under his or her own authority. In addition to all these independent powers, the President also wields considerable powers delegated by pre-existing statutes (such as the power to suspend sanctions against Iran, which President Barack Obama recently used).
The Presidency’s vast foreign policy powers are a good thing—if you think the President will use them well. U.S. foreign policy requires expertise, deftness, flexibility, speed, and sometimes secrecy, traits that do not match well with Congress as an institution. But what about the risk that the President will make terrible decisions or will blatantly ignore the remaining limits on his or her foreign affairs powers? With just a few months before the 2016 election, it is worth reflecting on what checks our system has in place to reduce this risk.
We are in the midst of the first great check: the election process. The election season enables Americans to choose the next leader of our foreign policy through a transparent and mostly democratic process. If exercised well, this check should screen out those who are unfit for office.
The choice in this election is stark. It is between expertise and theater; between progress-as-usual and unpredictability; between international engagement and racist nativism.
Hillary Clinton is predictable. Her approach to foreign affairs will show strong continuity with President Obama’s, with some perhaps some differences in trade policy. She will probably follow in his footsteps in taking robust but plausible positions on the scope of presidential power on issues like climate change and security. There will be controversies, but contained ones, and a heavy reliance on experienced diplomats and policy experts.
Donald Trump is … Donald Trump. In his own estimation, he will doubtless be the greatest foreign policy President ever. In the eyes of many members of the foreign policy establishment, he will be a disaster. He has deeply unsettling policy proposals and an undeniable preference for grandiosity over deliberative decision-making. As Benjamin Wittes wrote this spring on Lawfare, “Never before in my lifetime has either political party been led by a man with such an unusual combination of—from a national security perspective, anyway—terrifying liabilities.”
Once the next President takes office, a different set of checks will constrain his or her actions (with public opinion also continuing to play an important, underlying role). Some checks will come from our constitutional order—from Congress and from the federal courts. Under conditions of strong bipartisan agreement, Congress can pass legislation over the President’s veto (as occurred with the War Powers Resolution of 1973), and Congress does ultimately have the power of impeachment. The federal courts tend to be wary of intervening in foreign affairs issues, but on occasion they have issued strong rebukes to perceived presidential overreaching.
As checks, Congress and the courts do not operate in real time. They respond after-the-fact and typically only following dramatic provocation. Fortunately, there are other checks on Presidential power—checks that stem not from the Constitution but from the process of governance. Individual members of Congress and congressional committees have soft investigative powers that they can deploy more swiftly. More significantly still, members of the military and of the civil service have numerous tools for shaping and resisting presidential decision-making, especially where it is in tension with the rule of law. In the last resort, they can refuse to follow unlawful orders or resign.
Finally, the international political and legal order poses its own set of constraints. Practically speaking, the United States conducts its international business in large part through a dense web of international treaties and institutions. The ground rules of these institutions cannot be changed unilaterally by the United States, and attempts to operate outside them would likely give rise to significant resistance from allies whose cooperation is important to other U.S. foreign policy interests.
Overall, these post-election checks on the foreign affairs powers of the President are diffuse but collectively robust. Together they significantly reduce the risk of extreme presidential abuses of power. But even when they work, they still leave the President with considerable discretion, and there remains a risk that they will fail to prevent one or more catastrophic decisions. The most important safeguard remains the election itself.
In Federalist No. 68, Alexander Hamilton expressed the expectation that, while “[t]alents for low intrigue, and the little arts of popularity, may alone suffice to elevate” a person to certain honors, “it will require other talents, and a different kind of merit, to establish [that person] in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make [that person] a successful candidate for the distinguished office of President of the United States.” Let us hope that this prediction holds.Jean Galbraith is an assistant professor of law at the University of Pennsylvania Law School.Editor’s Note: Commentaries appearing on Constitution Daily reflect the opinions of their authors, and not those of the National Constitution Center.
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