What Role Should Congress Have in Foreign Affairs? (with Alissa Ardito)
What Role Should Congress Have in Foreign Affairs? (with Alissa Ardito)  
Podcast: Understanding Congress
Published On: Mon Aug 01 2022
Description: The topic of this episode is, “What role should Congress have in foreign affairs?” My guest is Alissa Ardito, the author of the book Machiavelli and the Modern State: The Prince, the Discourses on Livy, and the Extended Territorial Republic (Cambridge University Press, 2015). She has had a rich and varied career in governance, and she has thought deeply about legislatures and policymaking. Dr. Ardito has served as a general counsel at the Congressional Budget Office, and as an attorney advisor with the Administrative Conference of the United States. She received a Ph.D. in political science from Yale University, a J.D. from the University of Virginia School of Law, and a B.A. from the University of Virginia—all of which makes her wise in the ways of statecraft.Kevin Kosar:Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.Welcome to the podcast.Alissa Ardito:Thank you, Kevin. It's great to be here.Kevin Kosar:Let's start our inquiry with the Constitution, the foundation for our system of national self-governance. What constitutional powers does Congress have over foreign affairs?Alissa Ardito:Well, actually, if you look at the text of the Constitution, Congress has quite a lot of power over foreign affairs. The issue is that they are littered in various different parts of Section 8 and Section 10 of Article 1. I'll just mention a few. Actually, the first is Clause 1 of Section [8], tax and spend—the “Power To lay and collect Taxes…pay the Debts, and provide for the common Defence.” Congress also has the power to regulate commerce with foreign nations; establish uniform rule of naturalization; define and punish piracies on the high seas; the great war power of Section 8, Clause 11, “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” And then it even moves in, arguably, to everything about raise and support armies, provide and maintain a navy, regulate and call forth the militia.And then you get into—I think [it’s] fascinating—I would argue that Section 9, Clause 7, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” also constitutes a foreign affairs power. Then you get into all the limitations in Section 10 on states. The real concern was at the time of the Framing that they were exercising foreign relations independently. And then you can even move into Article 2 and the powers in the Senate, the treaty power and advise and consent on nominations as well. So, taken together, that's actually a pretty robust set of powers.Kevin Kosar:Yes, and these powers were, as you alluded to, scraped away from executive authority and scraped away from state authority and centered in the first branch: Congress. Now, Congress's authorities, we should probably also mention, go beyond those explicitly enumerated in the Constitution. Obviously there are a whole number of statutes that assign powers to Congress over foreign affairs, such as the War Powers Resolution, but additional legislative powers exist beyond that. For example, senators and members of the House can use their positions to raise the salience of issues, such as when Congress allows leaders of foreign nations to address it, or when legislators engage in legislative diplomacy and make trips abroad to meet with heads of state. There seems to be so much that Congress can do in foreign affairs. Is that right?Alissa Ardito:Yes, there actually is a lot that Congress can do. Even the statutes that allocate powers to Congress—they're implementing those broader textual powers in very specific ways to effectuate them. Even the War Powers Resolution, depending on one's views—one could argue it's unconstitutional, but I think the consensus is that they are. But, moving along, Congress has informal powers it can use. Again, it can pass resolutions—Senator Graham did one about the sale of certain jets to Ukraine. It can use ceremonial functions such as hosting dignitaries. Also, holding hearings are specific ways in which, through exercising oversight, Congress can be influential and can raise the salience of certain issues.And I think, not to take too much of a contemporary example, but the various funding bills Congress has passed on a bipartisan basis on aid to Ukraine are examples of—I mean, it's a formal power in that it's grounded in the Constitution and the Appropriations Clause, but it also acts in a way to give Congress more influence as well as authority than you might otherwise think. It's not following in the wake of the president. It's actually taking the lead in many ways more recently, which is unusual.Kevin Kosar:Yes. I think there's often a habit to try to allow the executive to be the sole voice of policy in international affairs, but there is absolutely nothing to stop any single member of Congress or an entire political party to simply assert themselves on an issue. If you're a foreign head of state and you realize the president's saying one thing and members of Congress are saying another, that has impact. That has effect. Now, let me move on to the next question. I want to go back to the Constitution. When the Founders bargained it out, they took away many traditional executive authorities over foreign policy from our executive and assigned it to Congress. Examples include the ability to independently raise funds, as you mentioned, and to make treaties. Why did they do this? This was in such distinction to the old practices of Europe, for example.Alissa Ardito:That's such a great question. They did this for a couple reasons. One way to think about it is, it looks as though they're pulling powers away from an executive. But you actually had examples of monarchs who, by accident of history, exercised what we think of as executive authority, but there's a historical background and then there's a functional reason. Many powers kings exercised based on prerogative were sometimes also legislative in nature. So, it gets really confusing because we're layering old ideas about mixed government, which go back to Polybius and ancient Rome, which divides the institutions of government based on class—are they representing the few, the many, [or] the one? Then around the time of the English Civil War, you get this functional separation—that it's not, “Who in society's being represented in this body?,” it's, “What's that institution doing?”The fulcrum of this really is the framing of the Constitution, because they're heirs of both these ways of thinking. But back to initial ideas—they found that they had the benefit of, as Jack Rakove often points out, 10 years or more dealing with state constitutions. And the state constitutions really exemplified pulling away any authority from the executive. They were really focused on legislative government and disempowering the executive. They found that these constitutions didn't work. So they realized, no, we've got to reallocate things yet again and move back to giving our executives some power, but not too much. They decide to split it, which is the great innovation. It's starting from almost a tabula rasa and saying, “How can we allocate this power more effectively?”What I find fascinating is, throughout the long summer, the Senate really was going to be the preserve of a lot of the foreign affairs powers, and was actually going to have the authority to negotiate treaties, as well as have a say in ratifying them. It was only towards the very end that they pulled some of that out and gave it to the executive, and then kept some in the Senate. Because we're so inured to thinking of—by nature and by, as Harvey Mansfield has said, the informal powers the president gets for a variety of reasons—we always think of it as pulling away. But in some ways, in the Framing, we got a pulling away of powers from the legislature in Congress over to the president, as a reaction against what they thought was some short-term thinking in the state constitutions.More to what you were speaking to, some of the key—not just powers bestowed on Congress as well as the power to declare war and the Senate treaties—but also fundamental in the British experience were the Mutiny Acts that evolved after the Bill of Rights and the Acts of Settlement. But this was before the Act of Settlement. This was [1689], where Parliament every year starts to vote on the military and supplies to the military to prevent the king from supporting and maintaining a standing army during peacetime. So, the idea that the legislature—the will of the people—have a say in how much an army or military is funded, as well as other aspects of military governance—you can't have martial law during peace time, for example. These are bits and pieces of the British experience that are very influential when it comes to shaping these broad contours of powers between two institutions that they're thinking of.Kevin Kosar:Yeah. You mentioned the British experience. I'm reminded of the fact that in the Declaration of Independence, we have lines that reference bad American colonist experiences involving military imposed against them. They were supposed to be part of the empire, yet the executive is using military force against them. So, there's complaints about, the...