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

By Gordon Silverstein | Go to book overview

9
Incentives to Rebalance Power?

What incentives are there for legislators to reassert themselves? What incentives exist to encourage them to accept the Court's challenge and move the collective will of hundreds of individual representatives to clear the hurdles placed in their path? Though recent scholarship shows that many in Congress have traded the assertion of formal power for a growing informal role in setting and supervising American foreign policy, 1 this book has tried to demonstrate that the tradeoff of informal influence for formal authority is one with significant implications in any future confrontation between the executive and Congress--in foreign and domestic policy alike.

To preserve formal authority in domestic and foreign policy, legislators will have to assert and defend it, but do legislators have sufficient incentives to reassert a formal congressional role in foreign policy? If so, what are they and can they be activated? If not, is there an alternative? The last chapter argued that the courts aren't likely to save Congress until Congress tries to save itself. Will the legislators save themselves, and if not, is there any other alternative?

There may be another alternative. If Congress lacks the proper incentives to rebalance power, and if the Court won't do it, it is worth asking whether the executive has the incentive to bring Congress back inwhether it is in the executive's political interest to do so. If it is, why have presidents since the Second World War increasingly asserted and acted on a prerogative interpretation of the Constitution? One answer would be that the historical context (the cold war and the threat of nuclear de-

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