Let's Speak with One Voice, Kids

Article excerpt

Frequent correspondent Tim Walters proffers an excellent discussion point in questioning the Syrian trips of Democrat and Republican members of Congress:

"I thought the Constitution left foreign affairs to the executive branch," Mr. Walters writes.

Well, not exactly. As a matter of fact, some argue that the Congress has the greater constitutional warrant. But whether House Speaker Nancy Pelosi, and the other delegation, violated federal law is another matter.

Jethro K. Lieberman, writing in "The Evolving Constitution," reminds that the "power over foreign affairs is not clearly defined in the Constitution," save the proscription from the states practicing it. Foreign affairs are quite the shared responsibility among the executive, legislative and judicial branches.

Article I grants Congress the right to regulate foreign commerce and, as Mr. Lieberman notes, "fund and oversee the foreign policy establishment of the United States" and declare wars, among other things. Article II grants the president his power to negotiate treaties and prosecute wars; Article III allows the federal courts to adjudicate cases involving foreign diplomats and citizens.

The constitutional impression that foreign policy is a presidential prerogative comes not from the Constitution but from a Supreme Court ruling, United States v. Curtiss-Wright Export Corp. (1936). Briefly, a joint resolution of Congress had authorized President Franklin Roosevelt to place an arms embargo on shipments to countries at war in the Chaco region of South America (northwestern Paraguay, southeastern Bolivia and northern Argentina). FDR did just that.

Vanderbilt law professor Harold G. Maier, an expert on the case, picks up the story (in "The Oxford Companion to the Supreme Court"):

"When Curtiss-Wright Export Corp. was indicted for violating the embargo, it defended itself on the grounds that the embargo and the proclamation were void because Congress had improperly delegated legislative power to the executive branch by leaving what was essentially a legislative determination to the president's 'unfettered discretion.'"

The court disagreed. Back to Professor Lieberman:

"(T)he court said that the constitutional authority to act stemmed not only from a congressional delegation of power but from 'the very delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations.'" That inner quotation comes from Justice George Sutherland, who wrote for the 7-1 majority.

But some, such as Ivan Eland, see this interpretation as a gross distortion of the Framers' intent, the presidential wartime powers, in particular. The supposed presidential prerogative in affairs foreign "flies in the face of both the text and the spirit of the Constitution," says the director of the Center on Peace and Liberty at The Independent Institute.

"(T)he Constitution's Framers actually gave more power in foreign affairs to the Congress than the president," he argues in a commentary. …