By Brian Hopkins
In academic and media circles alike, conventional wisdom holds that Congress delegates all matters of foreign policy to the executive branch. This convention extends well beyond the current political climate, beyond the Obama administration, and even past the various international conflicts of the past few decades. But the question remains unexamined: from a purely legal standpoint, what authority does Congress have in matters of foreign policy? Where exactly is the line between legislative and executive if Congress were to dust itself off and reassert its role in foreign affairs? This post is by no means an exhaustive examination of the question, but provides a slightly deeper analysis for the casual observer, as well as a framework for further examination.
Most elementary civics classes introduce the major constitutional-based “foreign policy” responsibilities of the legislative branch. Principally, these include the power to declare war (Art. I, § 8) and ratify treaties (Art II, § 2). One layer deeper lies Congress’s power of the purse (Art. I, § 7) and the Senate’s responsibility to confirm nominations for ambassadorships abroad (Art. II, § 2). These powers grant Congress enormous leeway to exert influence on the executive branch should it chose to do so. However, as recent decades show, Congress is often more than happy to delegate these authorities to the President—Congress has not formally declared war since World War II, treaty ratification is rarely contentious, the most pressure Congress ever asserts with financial levers is on military spending, and the Senate hardly considers the policy positions of various ambassador nominees.
Underpinning most of Congress’s reluctance to involve itself in foreign affairs is the Sole Organ Doctrine. The Doctrine, which originated from a speech by then-Representative John Marshall on the House floor, purports to state that the United States should appear as one, singular entity to the outside world, and to achieve that end, the President alone should bear responsibility for developing foreign policy. However, historical analysis reveals that this interpretation is an oversimplification of Marshall’s statements. While it is critical that the outside world perceive the United States as a singular entity, Marshall advocated that the President bear sole responsibility for implementing policy, not formulating policy. In fact, Marshall advocated for Congress to play a role in developing foreign policy before the executive branch took over responsibility for implementation. Contrary to popular belief, Marshall actually envisioned a more involved legislature, at least in the policy-development stage. Of course, in today’s world, one wonders whether such a distinction between formulation and implementation of policy remains possible. Foreign policy is at once much more fast paced, with cables and orders zipping around the world at the speed of light, and much slower, with relationships that take years, if not decades, to cultivate. Involving Congress in such complex and complicated policies would only grind the gears to a halt.
The Supreme Court examined the issue of the Sole Organ Doctrine in the 1936 case United States v. Curtis-Wright. In that case, the court examined whether Congress could delegate the authority to impose an embargo to the executive branch. Justice Sutherland, writing for the court, offered extensive commentary on the role of the President in developing and implementing foreign policy. Although the opinion is often cited as preeminent authority on an all-powerful executive, the heart of the case dealt with a relatively narrow issue, and in fact only asked whether Congress even had the power to delegate authority—far from deciding whether such powers are inherent to the Presidency or given to the office by the Constitution.
As a brief analysis of this history shows, the general consensus that the President alone has the authority to develop and implement foreign policy is based on a fundamental misunderstanding. Congress itself ceded its involvement in foreign policy development, and many of the mechanisms for Congress to involve itself still exist, though they remain rusted into place from decades of neglect. Should Congress desire to restart its involvement in foreign affairs, it could do so overnight. In an era of partisan deadlock, foreign policy debate might be an opportunity for both sides to find common ground, and perhaps reinvigorate the bipartisan and bicameral relationships that used to make Congress function well behind-the-scenes. In an ever-globalizing world, we should ask ourselves whether the country might benefit from involving more of the government in the process of developing foreign policy.