The question of the relevance of the separation of powers and whether it still serves the public interest of the Americans often reflects a misunderstanding of the policy and its initial purposes. While the separation of powers is often identified with the inefficient government, legislative supremacy is associated with efficient government (Barrus 141). Originally, separation of powers was formulated to curb abuse of office and save the American people from autocratic leadership. This is notwithstanding, many people fail to appreciate that the link between the separation policy and inefficient government depends on the principle of legislative supremacy.
Since the late 1960s, foreign policy has been increasingly politicized with the consequence that Presidential primacy was directly challenged by a reformed Congress no longer willing to accept a secondary role in determining the fate of the United States. By the 1980s, Congress had reasserted its constitutional authority over the conduct of foreign affairs, prompting calls from many quarters for a return to the days of executive primacy (Barrus 150). This paper examines whether the separation of foreign policy powers is a source of America’s strength.
Significance of Foreign Policy Formulation to the United States
According to Briggs, relations between the executive and Congress remain critical to the formulation of American foreign policy (2). The Constitution mandates its importance through the separation of powers principle, which theoretically both undergirds the basic document and divides power between the president and the Congress in the making of foreign policy. Consequently, the relationship between the executive and the Congress, as deduced from the Constitution, has been called an invitation to struggle for the privilege of directing the American foreign policy. The framers of the Constitution distrusted concentrations of power in any one branch or level of government, believing the result of such concentrations to be destructive to the United States. They established, instead, a system of checks and balances whereby powers are actually shared by separated institutions. This sharing of powers was meant to necessitate compromise from time to time in the making of policy to avoid any form of deadlock. In the foreign policy area, the process known as bipartisanship can also avoid deadlock through cooperation between opposing political party leaders in the legislature and by requiring executive consultation party foreign leaders in the Congress prior to the implementation of the policy.
As the third branch of the national government, the judiciary, or Supreme Court, plays a substantially lesser role in the formulation of foreign policy. Its main contribution is in clarifying, through decisions, the powers assigned to the other two branches in the Constitution. An example would be The Prize Cases of 1863, in which the Court ruled in favor of President Abraham Lincoln’s imposition of a naval blockade on southern ports shortly after Fort Sumter was fired upon in 1861 (Briggs 2). In sustaining the president’s action, the Court clarified his powers as commander in chief and stated that if a war was to be made by the invasion of a foreign nation, the president is not only authorized but bound to resist force by force. Despite the fact that the president does not instigate any war, he is obligated to take control without having to wait for any form of authority from the legislature. This applies to any war, regardless of whether the aggression is from a foreign invader or an internally organized rebellion. At other times, however, the Court has declined to render decisions regarding foreign policy issues between the President and the Congress, adjudging them, instead, to be political questions not properly susceptible to legal interpretation.
The president is the key figure in the formulation of foreign policy because of specific grants of authority in the Constitution and the fact that he is elected by a national constituency. In addition to his commander in chief power, he also initiates treaties, as clearly stated in the Constitution. The president’s secretary of state is responsible for negotiating treaties, which are then sent to the Senate for approval. If approved by the requisite two-thirds minimum, the treaties are then ratified by the president.
Some of the largest and most bitter struggles in the executive-legislature relationship have occurred over the requirement of the Senate give their approval when treaties are made. Presidents are also allowed to use executive agreements instead of treaties to formulate foreign policy with other countries. Although they may be avoided by congressional action, these agreements do not require Senate consent. The Constitution makes no explicit provision for executive agreements, but their use by presidents has given the chief executive an important tool with which to bypass the Senate in reaching agreements with foreign governments. Although it is also within the powers of the president to appoint ambassadors, he is only allowed to do so after receiving a green light from the Senate. Conversely, it is the responsibility of the president to welcome ambassadors from foreign countries. He does not share this power with Congress. The power of recognition further solidifies his direction of foreign policy.
Although the role of the diplomat is frequently downgraded by presidents who engage in direct diplomacy, the diplomatic role continues to be important. This is especially true in the case of a secretary of state who has the full confidence of the president and is largely delegated to the role of directing foreign policy. An example of this kind of relationship was that between President Dwight D. Eisenhower and his Secretary of State, John Foster Dulles.
Whenever a new foreign policy is to be declared, the Constitution requires the president to keep the Senate informed and outline measures that will ensure effective execution. As chief executive of the government, the president may require the opinion, in writing, of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices. He, therefore, has the continuous support of numerous executive agencies and departments who are answerable to him in carrying out the nation’s foreign policies. Closely related to this is the president’s chief of state or ceremonial head of government role. Taken together, the powers afford the president much of the authority necessary to lead the Republic in foreign affairs. This leadership power, as it relates to Congress, was clarified by the Supreme Court in a case against the United States in 1936. The Court upheld the validity of an arms embargo proclaimed by President Roosevelt under authority previously granted in a broadly stated joint resolution of the Congress. The Court reinforced the president’s preeminent position by stating that he was the sole organ of the Federal government in the field of international relations, a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.
Congressional assertiveness in foreign policymaking was centered mainly on the war power, specifically the commitment of the US armed forces into combat without explicit congressional consent. It was, and still remains, a difficult question to ponder because presidents have frequently committed the armed forces to hostilities without a congressional declaration of war. However, the public mood aroused by Vietnam, coupled with a congressional determination to have no more of such wars, led directly to the passage of the Wars of Powers Resolution, an attempt to reinvigorate the legislative role in this key foreign policy area.
US intervention in Grenada during the early 1980s caught the Congress, the American public, and the world community by surprise. The fortieth President of the United States, Ronald Reagan, believed that the legislative branch was still suffering from the Vietnam syndrome or resistance to the use of the armed forces abroad. Clearly, the commander in chief did not agree with this assessment, as the decision to intervene was reached. Grenada is a small island in the southern Caribbean chain that in 1983 was presided over by a shaky Marxist regime with close ties to Cuba and other Communist bloc countries.
According to Yoo, the Vietnam War proved to be one of the most traumatic catalysts for change in American foreign policies (73). The war contributed directly to demolishing the bipartisan consensus on foreign policy and also encouraged Congress to recover its constitutional powers with respect to the use of armed forces abroad. The revelation of the Pentagon papers, the secret bombing of Cambodian in 1970, growing internal repression of antiwar rebels, combined with the apparent failure of a military solution to the Vietnam problem, greatly undermined public and congressional confidence in the Imperial Presidency.
A more youthful and aggressive Congress, which has thrown off the shackles of the seniority system and party discipline, asserted its constitutional rights over foreign affairs. Commencing with the War Powers Resolution in 1973, Congress voted to impose considerable constraints upon executive action in foreign affairs and to ensure that the whole national security apparatus, including intelligence agencies, became more directly accountable to the legislature. Moreover, congressional vetoes were incorporated into almost every significant piece of foreign policy legislation, thereby imposing sometimes severe limits upon presidential autonomy. Congress, for instance, linked the sale of arms abroad to questions of human rights and nuclear proliferation. However, it was not simply the breakdown of the national consensus upon foreign policy and the political backlash resulting from the Vietnam War, which contributed to greater congressional intervention in foreign affairs.
From the discussion presented in this paper, it is quite clear that the separation of foreign policy powers is a source of strength for the United States. For the 1970s, the era of the oil crisis and the devaluation of the dollar brought home to Americans the consequences of a more interdependent world. From the gas pump to the factory floor, to the local church and community, many Americans became increasingly aware of how international forces impinged directly upon their lives.
Facilitating the democratization of the foreign policy process was a series of very significant changes in the pattern of American domestic policies. The secular decline of party loyalty and identification, alongside the rising importance of political action committees, fed on and contributed to a more assertive congressional role in foreign policy.
Barrus, Roger. The Deconstitutionalization of America: the forgotten frailties of democratic rule, Lanham, MA: Lexington Books, 2004. Print.
Briggs, Philip. Making American Foreign Policy: President-Congress Relations from the Second World War to the Post-Cold War Era, Lanham, MA: Rowman & Littlefield, 1994. Print.
Yoo, John. The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, Chicago: University of Chicago Press, 2008. Print.