VOL. 6, NO. 12 (December, 1996) PP.188-90
THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY
edited by David Gray Adler and Larry N. George. Lawrence, Kansas:
University Press of Kansas, 1996. 396 pp. Reviewed by James
Meernik, Department of Political Science, University of North
Texas.
THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY is
one of the more fascinating and well-written studies of
presidential and congressional powers in making and conducting
foreign policy to emerge in many years. The book's chapters are
most fundamentally concerned with the intent of the writers of
the U.S. Constitution regarding which branch of government should
control what foreign policy function. These intentions are
explored in a series of case studies of the balance of power
between the president and the Congress in the early days of the
Republic as well as more modern-day foreign policy controversies.
Thus, as an analysis of precedent- setting events and debates and
as a legal and historical investigation of the validity of
presidential claims to preeminence in foreign policy, this volume
substantially expands our understanding of constitutional issues
and foreign policy. As such it is an essential book for any
scholar of United States foreign policy.
But, THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY
also has a second, normative purpose and that is to
systematically dismantle the arguments for presidential dominance
and argue for greater "democratization" of U.S. foreign
policy, especially through increased participation by the
Congress and the Courts. This point is made definitively early on
when it is stated that the myth of presidential dominance,
"...although constitutionally unfounded, corruptive of
political democracy and counter-productive to the nation's
interests here and abroad, has nevertheless asserted itself with
disturbing persistence over the past several decades, poisoning
both practical foreign policy making and rigorous constitutional
interpretation" (p. 1). Certainly these authors cannot be
accused of pulling punches or overly qualifying their hypotheses.
The chapters go on to provide a great deal of evidence to back up
the assertion that there is little historical or constitutional
basis for presidential supremacy. Control over war
powers--especially recent presidents' contention that they can
act without a congressional declaration of war-- garners a great
deal of attention. One chapter by Dean Alfange on the
"quasi-war", an undeclared naval confrontation with
France during John Adams's presidency, shows that this early use
of force without an explicit declaration of war, which was often
cited as precedent by later presidents, does not demonstrate that
Adams lacked proper statutory authority. Another chapter by Adler
shows that the framers intended that Congress alone possessed the
power to declare war and that presidents could act unilaterally
only when U.S. territory was breached. Louis Fisher argues that
the United Nations charter does not give presidents the right to
use force when so asked by the UN Security Council as was argued
by Harry Truman during the Korean War. Rather he argues the UN
Charter (like other treaties to which the United States is a
party) clearly indicates that member states were to use normal
constitutional procedures to implement UN resolutions. Indeed,
there are several chapters making equally as compelling arguments
that the legal foundation for presidential dominance in using
military force rests on very shaky grounds.
Similarly, the authors demonstrate that the constitutional basis
for the expansion of presidential power to recognize foreign
governments and authorize executive agreements are just as
flimsy. David Gray Adler argues that the power to receive foreign
ambassadors was intended to be a purely routine power that
presidents were compelled to exercise whenever a foreign
government sought to present its credentials. Nowhere in the
Constitution was it intended that presidents have the discretion
to grant recognition to some governments and not others, as
presidents have lately been wont to do (e.g., Communist China
until the 1970s). Robert J. Spitzer, as well as most of the
authors, argues that both the Supreme Court and the Congress have
been deficient in reining in the president's propensity to sign
executive agreements on matters that ought to be subject to
Senate approval. In fact, all the authors find fault with all
three branches of government for not performing their
constitutional responsibilities, and allowing presidential
dominance to continue.
Given their basic purpose of outlining a legal and constitutional
justification for greater control by the courts and Congress in
foreign policy, the authors succeed. Their evidence is
well-argued and persuasively written. Given the precedents and
examples cited here, it is easy to see that presidents have
exceeded their original, constitutional mandate. However, I part
ways with the authors first on their exclusion of other
historical examples prior to the Cold War in which Congress
deferred to the president. These examples would undercut somewhat
the argument that presidential dominance is a fairly recent
phenomenon. Second, I find troubling some of the normative
implications of the authors' arguments.
First, I believe the authors should have explored the evolution
of presidential power in foreign policy beyond the Civil War.
Most of the historical analysis is limited to the Washington,
Adams and Jefferson administrations. While this exploration is
extremely important in describing how the framers of the
Constitution applied that document, it does not tell us enough
about what happened when the United States took its first big
steps onto the world's stage at the turn of the 20th century. The
authors seem to believe that presidential dominance and abuse of
power only began in the aftermath of World War II. But clearly
there were important, precedent-setting events early in the 20th
century as presidents sent military forces into Cuba, Haiti, the
Dominican Republic and Nicaragua without congressional
declarations of war. Theodore Roosevelt made many a bold claim
for executive powers that would have made even Richard Nixon
blush. An examination of these cases might have demonstrated
whether presidential supremacy during the Cold War was an
anomaly, or a trend begun earlier. The book ignores too much
history and constitutional development that might shed light on
the legitimacy of both the claims of the authors and the
president.
Second, and more importantly, the authors make the normative
argument that greater congressional and judicial involvement is
needed in foreign policy making. I do not doubt that such
involvement in the past or in the future could (have) prevent(ed)
abuse of power by the executive branch, or the adoption of
unsound policies, on occasion (e.g., the Iran-Contra Affair). The
more important question is whether the routine involvement of the
other branches would work in practice. If the Supreme Court and
the Congress are truly reluctant to involve themselves in foreign
policy for their own institutional and political reasons, can
they be "forced" to engage in foreign policy making?
Obviously, as the authors indicate, the constitutional and
statutory powers are in place now for the other branches to
assert their claims. Thus, it will take more than the passage of
additional legislation to inspire such involvement, it will take
political courage. So far it has been more expedient to let the
president make the difficult foreign policy decisions to avoid
blame, and because there are few electoral incentives to be
involved in foreign policy.
Lastly, I wonder whether greater congressional and judicial
involvement in foreign affairs would make for better policy. Will
forcing the involvement of 535 legislators representing all
manner of parochial concerns make for a more democratic or a more
fragmented foreign policy? Will greater involvement by the courts
lead to a democratization of foreign policy, or will it lead to
the accumulation of greater powers in the hands of an unelected
minority? Will the overwhelming power and responsibilities the
United States possesses as a global hegemon ever allow it the
luxury of engaging in the kind of leisurely and scholarly debate
to which the framers were accustomed? Or will the
nation/president be forced by circumstances never envisioned by
the framers to take quick and decisive or unpopular actions? The
international and domestic context within which foreign policy is
made cannot be ignored. If it were not for Franklin Roosevelt's
Lend Lease executive agreement, or Jimmy Carter's efforts to free
the hostages in Iran, who would have acted? Even though the
authors are primarily concerned with the constitutional and legal
basis for presidential supremacy, these points should have been
raised if we are to take the next step and accept the
implications of their arguments.
I must emphasize again, however, that on the whole I found this
to be an extremely useful, insightful and well-written volume. I
take issue only when the authors do not take into consideration
the practical consequences of their prescriptions. Certainly,
enhanced participation by the Congress can be very useful and
should be implemented where possible. But this involvement should
only be encouraged where it is feasible, potentially effective
and can prevent presidential abuse of authority. Still, these are
personal biases and others can judge for themselves the authors'
normative prescriptions.
Copyright 1996