President Bush has scolded House Speaker Nancy Pelosi for visiting Syria. In the president’s opinion, shared by others, the U.S. government should speak with just one voice overseas. Yet that view flies in the face of both the text and the spirit of the Constitution.
Before the rise of the post-World War II imperial presidency, the powers among the branches of the U.S. government were much more balanced as the Constitution originally intended. In fact, suspicious of European monarchs’ propensity to wage war with the blood and treasure of their citizens, the Constitution’s framers actually gave more powers in foreign affairs to the Congress than the president. The Congress was given the power to regulate commerce with foreign nations, declare war, raise and support armies, provide and maintain a navy, regulate the armed forces, organize, arm, and discipline the militia, and call them forth to resist invasions.
In contrast, the Constitution gave the president only two unilateral powers in foreign affairs: the chief executive was designated the commander in chief of the armed forces and militia (narrowly construed so as not to imply that the chief executive was commander in chief of the nation), and was allowed to receive foreign ambassadors and ministers. The president was allowed to make treaties with foreign nations and nominate U.S. ambassadors and high foreign policy officials, but these actions were both subject to congressional approval with an overwhelmingly large two-thirds majority vote. Clearly, the framers wanted the Congress to be the dominant branch in foreign policy, as with most other aspects of governance.
Today, all politicians worship the Constitution rhetorically, while acquiescing in its continued distortion. They fall back on the nonbinding comments, or obiter dicta, of Supreme Court Justice George Sutherland, who claimed in his majority opinion in the 1936 case of United States v. Curtiss-Wright that the president has "plenary and exclusive power as the sole organ of the federal government in the field of international relations." This expansive view of wartime presidential power couldn’t be further from the framers’ intent.
In fact, the Founders undoubtedly would have noted that the warlike European monarchs of the day were the sole purveyors of their nations’ foreign policy the very problem the framers attempted to address with the constitutional separation of powers.
Curiously, although the expansion of executive power in foreign policy has not served the nation well, it often has the counterintuitive effect of serving the interests of Congress. If the president is always in charge of U.S. foreign policy, members of Congress can duck responsibility for tough issues that might pose risks to their paramount goal getting reelected. For example, by allowing presidents to fight even major conflicts without constitutionally required declarations of war a phenomenon that began when Harry Truman neglected, with a congressional wink and nod, to get approval for the Korean War the Congress conveniently throws responsibility for the war into the president’s lap. The Founders would be horrified at the erosion of a major pillar of their system of checks and balances.
To fulfill their constitutional responsibility as a check on the president, members of Congress do have a responsibility to be heavily involved in U.S. foreign policy. Instead of publicly condemning Speaker Pelosi for carrying out the bipartisan Iraq Study Group’s heretofore-languishing recommendation of actually talking to Syria to resolve bilateral issues, the president should be happy that someone in the U.S. government is willing to take risks with one of America’s major adversaries in the region.
In fact, while she was at it, Pelosi should have stopped by Tehran to see whether negotiation could have helped the troubled U.S.-Iranian relationship as well.