Imbalance of Powers: Constitutional Interpretation and the Making of American Foreign Policy

By Gordon Silverstein | Go to book overview

8
Why the Courts Won't Save Congress Overseas--Or at Home

In over 200 years of developing a doctrine in foreign policy cases, the Supreme Court has made it clear that it will police the separation of powers in foreign as well as in domestic policy, but the doctrine is equally clear that where Congress falls to assert its prerogatives in law, the justices are inclined to authorize broader discretion for the executive. The failure to assert legislative authority is compounded when a majority of legislators agree to accept the executive's interpretation of disputed statutes--or, worse, where that same majority agrees to accept the executive's language in a bill with the hope or expectation that the courts ultimately will interpret the law as many legislators would prefer it understood. In a number of areas outlined in the previous chapter, legislators started with statutes designed to constrain or limit executive prerogative, but ultimately accepted legislation that was at best ambiguous and that at worst explicitly delegated discretion to the executive.

The 1990 legislative effort to revamp the intelligence system after the Iran-Contra debacle is a perfect example. The bill, though hardly a fundamental revision of the intelligence system, featured a requirement that the president report all covert actions in advance to Congress, except in a few circumstances when the president would be required to report within 48 hours. President Bush argued that this strict limit was an unconstitutional infringement of the executive's prerogative in foreign affairs and vetoed the bill. Without the political support to override the veto, the congressional conference committee reached a compromise with the administration, removing the statutory requirement in exchange for Bush's

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