The U.S. Constitution parcels out foreign affairs powers to both the executive and legislative branches. It grants some powers, like command of the military, exclusively to the president and others, like the regulation of foreign commerce, to Congress, while still others it divides among the two or simply does not assign.
The separation of powers has spawned a great deal of debate over the roles of the president and Congress in foreign affairs, as well as over the limits on their respective authorities. “The Constitution, considered only for its affirmative grants of power capable of affecting the issue, is an invitation to struggle for the privilege of directing American foreign policy,” wrote constitutional scholar Edward S. Corwin in 1958.
Foreign policy experts say that presidents have accumulated power at the expense of Congress in recent years as part of a pattern in which, during times of war or national emergency, the executive branch tends to eclipse the legislature.
Friction by Design
The periodic tug-of-war between the president and Congress over foreign policy is not a by-product of the Constitution, but rather one of its core aims. The drafters distributed political power and imposed checks and balances to ward off monarchical tyranny embodied by Britain’s King George III. They also sought to remedy the failings of the Articles of Confederation, the national charter adopted in 1777, which many regarded as a form of legislative tyranny. “If there is a principle in our Constitution, indeed in any free Constitution, more sacred than any other, it is that which separates the legislative, executive, and judicial powers,” wrote James Madison, U.S. representative from Virginia, in the Federalist papers.
Many scholars say there is much friction over foreign affairs because the Constitution is especially obscure in this area. There is not the intrinsic division of labor between the two political branches that there is with domestic affairs, they say. And because the judiciary, the third branch, has generally been reluctant to provide much clarity on these questions, constitutional scuffles over foreign policy are likely to endure.
Powers of Congress
Article I of the Constitution enumerates several of Congress’s foreign affairs powers, including those to “regulate commerce with foreign nations,” “declare war,” “raise and support armies,” “provide and maintain a navy,” and “make rules for the government and regulation of the land and naval forces.” The Constitution also makes two of the president’s foreign affairs powers—making treaties and appointing diplomats—dependent on Senate approval.
Beyond these, Congress has general powers—to “lay and collect taxes,” to draw money from the Treasury, and to “make all laws which shall be necessary and proper”—that, collectively, allow legislators to influence nearly all manner of foreign policy issues. For example, the 114th Congress (2015–2017) passed laws on topics ranging from electronic surveillance to North Korea sanctions to border security to wildlife trafficking. In one noteworthy instance, lawmakers overrode President Barack Obama’s veto to enact a law allowing victims of international terrorist attacks to sue foreign governments.
Congress also plays an oversight role. The annual appropriations process allows congressional committees to review in detail the budgets and programs of the vast military and diplomatic bureaucracies. Lawmakers must sign off on more than a trillion dollars in federal spending every year, of which more than half is allocated to defense and international affairs. Lawmakers may also stipulate how that money is to be spent. For instance, Congress repeatedly barred the Obama administration from using funds to transfer detainees out of the military prison at Guantanamo Bay.
Congress has broad authority to conduct investigations into particular foreign policy or national security concerns. High-profile inquiries in recent years have centered on the 9/11 attacks, the Central Intelligence Agency’s detention and interrogation programs, and the 2012 attack on U.S. diplomatic facilities in Benghazi, Libya.
Furthermore, Congress has the power to create, eliminate, or restructure executive branch agencies, which it has often done after major conflicts or crises. In the wake of World War II, Congress passed the National Security Act of 1947, which established the CIA and National Security Council. Following the 9/11 attacks, Congress created the Department of Homeland Security.
Read more from the source article published in Council of Foreign Relations Mar. 2 2017