By SPENCER SLAGOWITZ || August 2nd, 2016
The nature of U.S foreign policy institutions make a populist quasi-authoritarian leader like Trump, who promises to do much when it comes to foreign policy, particularly dangerous. That is an alarming notion and ought to frighten you.
The vision of the unitary presidency, most robustly articulated under George W. Bush’s administration, enshrined the role of the presidency as the sole organ of American foreign policy. It dismissed the role of congress in exercising foreign policy responsibilities and maintained that only the executive branch has the dynamism required to deal with international affairs. As a consequence, today, the vast majority of authority when it comes to foreign policy decision making rests with the president. Congress has even struggled, to give an example, to draft a new AUMF (authorization for the use of military force) to empower the president to combat ISIL (Da’ash) and furthermore to define the scale and scope of our offensive operations. To this date, the Obama administration relies on the hilariously outdated 2001 AUMF to justify airstrikes in Iraq and the kill & capture operations conducted by the ~250 commandos located there. Given the immense authority enjoyed by the presidency and the lack of robust checks on that authority, a populist demagogue like Trump would be especially dangerous whilst in office.
Before we can go on to discuss the implications of the legal structure that places immense authority in the presidency, it is important to discuss its source, what Harold Koh has defined as the ‘National Security Constitution.” The National Security Constitution is a quasi-constitutional “normative vision of the foreign policy process” which “lurks within the constitutional system…[It] creates…institutions…defines fundamental power relationships and places limitation upon the powers of each branch.” The National Security Constitution consists of three hierarchal levels of law, of which the first is the text of the Constitution itself. Concerning foreign policy, the Constitution itself is ambiguous and even contradictory, however it importantly establishes a guiding principle of shared institutional participation. At the second hierarchical level, more specific rules governing the legal rights and duties of the three branches can be found in framework statutes, legislation that “reinforces and elaborates the constitutional foundation of power sharing by constructing a statutory super structure.” At the final, and lowest, level is non-binding historical precedent or in the words of Harold Koh, “quasi-constitutional custom.” These three hierarchal levels of law work in tandem to describe a legal structure that governs the foreign policy process. So, to recap, constitutional law is kind of confusing when it comes to foreign policy—but importantly the framers were very clear on the idea of shared institutional participation, the idea that Congress and the executive branch were joint partners when it comes to foreign policy.
That idea of joint institutional participation was completely thrown out by the Hughes Court in the 1936 Curtiss-Wright decision which effectively consolidated presidential authority in foreign affairs and asserted, albeit through some questionable logic, that foreign policy authority passed directly from Great Britain to the executive branch. Since then each subsequent presidency has, for the most part, expanded executive authority little by little. Indeed, as Professor Christopher Kelly explains, “ The current…administration has simply formalized a process…that has been building over the last several decades.”
This sort of unlimited executive control of foreign policy, that is currently enjoyed by the presidency, encourages and enables costly war making. The way the executive branch has developed loosened constraints in a manner that allowed for flexibility in war making but made it easier to conduct military hostilities abroad. However, through vesting war-making power in Congress, the framers of the constitution endeavored to create a system that will “not hurry us into war; it is calculated to guard against it.”
This reasoning is underpinned by the idea that a decision as costly as declaring war should be a product of consensus building and considerable debate. Yet, the power to conduct military action abroad has shifted hands, from Congress to the executive branch. The executive branch has near-total dominance over war making; for example, it has historically ignored the War Powers Act, a framework statute that constrains the ability of the president to, you guessed it, make war.
There are several dangers involved in vesting this power solely with the executive branch. Most of these dangers result from the executive branch’s inherent faults as Professor Alexander Bickel posits, “The errors of the executive branch are active ones: it can rush hastily into war, and it can mistake silence for consensus…the sins of the executive branch are those of commission.” As a result, as the executive branch has claimed unilateral war making powers, the United States has entered into an increased number of ‘presidential wars’ or conflicts without congressional authorization: the Korean War, the Second Indochina War (Vietnam), Bay of Pigs invasion, the invasion of Cambodia, the Persian Gulf War, the Iraq War, the invasion of Grenada, the War in Afghanistan, the Kosovo War, and the military intervention in Syria. Simply put, it is not hard to imagine Donald Trump rushing into conflicts in the name of restoring American leadership and strength that would result in disaster, especially and given the Donald’s lack of expertise when it comes to Foreign Policy and the strange heterodox coterie of so-called experts that advise him.
Furthemore, Law professor Amos Guiora, in his article Human Rights and Counterterrorism, sets out a theory concerning sweeping executive power, which asserts that, “unrestrained executive power during times of crisis, not subject to the checks and balances inherent in the theory of shared institutional participation, facilitates decision making that violates individual rights.”Facing international terrorism and hostile non-state actors, the second Bush and Obama administrations have claimed extraordinary powers that can (and some argue already do) threaten fundamental human rights. The Obama administration, for example, has received considerable criticism for the use of drones to conduct extra-judicial killings. Professor Afsheen John Radsan explains how “The executive branch can unilaterally designate an individual as an armed enemy combatant and then without any due process or retroactive judicial review, kill said individual.”. The expansion of such presidential powers has always been implicitly justified by the idea that the executive branch will reasonably and appropriately use them. But, without an impartial adjudicator to constrain the exercise of such a power, the prospect of a Trump presidency makes me worry if he will prudently exercise the authority vested in the office of the president. A president that has legitimately proposed to ban an entire religion from entering the United States, and has supported the use of torture and waterboarding, cannot be expected to, for one, not do those things and two, exercise his authority in a ‘reasonable’ manner. However, those who would oppose the imagined blatant violation of civil rights that would occur under a Trump presidency, have little recourse anymore. That is deeply troubling to me and hopefully to you, as well, and it pretty powerfully suggests as well that we ought to articulate a new vision of foreign policy power sharing in which there are legitimate congressional checks on presidential authority.